Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, January 11, 2012

More on Hosanna-Tabor

A couple more thoughts on the huge victory for institutional religious freedom in Hosanna-Tabor.  Although the majority opinion holds only that Perich was a "minister" under these facts--teaching religion classes, sometimes leading worship, holding a "commissioned" title after a period of theological education--the impact and signals are broader.

First, when you win on the facts of a case, you typically also get language earlier in the opinion that supports your side more broadly.  Conversely, if you lose on the facts, you often also get stuck with broad negative language earlier in the opinion.  Here the broad language in favor of institutional religious freedom includes not only the ringing historical and doctrinal affirmation of the ministerial exception.  It also includes the passage distinguishing away Employment Division v. Smith.  That decision, the Court said, only allowed upheld neutral prohibitions of "physical acts" (like peyote ingestion), not "government interference with an internal church decision that affects the faith and mission of the church itself."  Although those two categories don't match each other well, the point is: the Court distinguished Smith not on the narrow ground that Title VII suits would unconstitutionally entangle judges in religious determinations, but on the broader ground that religious organizations have a constitutional right to choose their leaders and even a broader right to make "internal ... decision[s] that affect [their] faith and mission."  These phrases suggest many possibilities for constitutional arguments, even if we don't know they'd be constitutional victories.

Second, although the majority is case-specific on who counts as a minister, three justices--including Elena Kagan!--endorse a broader definition.  Thomas would defer heavily to the religious organization's characterization of an employee as a minister.  And Alito and Kagan say that ordained or "commissioned" status isn't crucial, that the question is about religiously-significant functions (listing several of them), and that "the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones.  What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities." (Concurrence at 8)  I can imagine imagine teachers in many Christian schools satisfying that test, and also many employees in many religious social services who explicitly communicate religious messages along with the services they provide.  With three justices explicitly taking the broader approach, all you need is a couple more (Roberts and Scalia, most likely) for a majority.  Hosanna-Tabor doesn't give us a full-fledged broad definition for a "minister," but it makes the route to such a definition much easier.


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I plan to spend time with the opinion this weekend, but a I have a quick question, if you don't mind. Do any of the Justices address the issue of whether a religious organization must make clear to a prospective employee that their position is "ministerial" before hiring?

Posted by: Andrew MacKie-Mason | Jan 12, 2012 1:30:09 AM

". . . the Court distinguished Smith not on the narrow ground that Title VII suits would unconstitutionally entangle judges in religious determinations but on the broader ground that religious organizations have a constitutional right to choose their leaders and even a broader right to make "internal ... decision[s] that affect [their] faith and mission."

That point is driven home by the Court's one paragraph rebuff of the pretext inquiry:

"The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,”—is the church’s alone."

Posted by: Cameron Kynes | Jan 12, 2012 9:45:11 AM

Andrew, the Court didn't say anything about that as I remember. The majority noted that both Perich and the school understood and referred to her as a minister, but since the opinion was not setting an outer definitional bound it didn't say whether that was necessary.

Posted by: Tom Berg | Jan 12, 2012 9:50:38 AM

Thanks, Tom. I'm curious whether the idea of notice will get any play in the lower courts, especially if churches keep pushing on the boundaries of "minister" to insulate questionable employment decisions from judicial review.

Posted by: Andrew MacKie-Mason | Jan 13, 2012 7:53:06 PM

Some degree of "notice" is inherent in the idea that the position has to have certain features (leadership, worship or ritual, teaching) to qualify as "ministerial." But if you're talking about a requirement that the institution give specific notice that it calls the employee a "minister" and would claim the exemption, such a requirement could only be imposed by statute or regulation, I think.

Posted by: Tom Berg | Jan 13, 2012 8:27:11 PM

I don't mean explicit notice (as in a formal line in the job posting, for instance.) I'm more trying to draw out the potential for cases where the church sees the employee's duties in a ministerial way, but the employee sees them more secularly.

If all the factors end up being objective-esque, this may be a moot point. But there seems to be a level of subjectivity, and I'm wondering how much that subjectivity needs to be communicated.

Posted by: Andrew MacKie-Mason | Jan 13, 2012 10:35:27 PM

Andrew, from your comments on this blog, and your critique of Professor George on your own blog, which can be found by clicking on your name, it appears you believe Religious Liberty is an obstacle, rather than an inherent and Constitutional Right.

Posted by: Nancy D. | Jan 15, 2012 11:04:16 PM

I don't see how this is relevant to this post, so I'll keep my response brief and discuss it with you in more detail elsewhere if you want: no, I think both religion clauses in the First Amendment represent important and fundamental parts of any democratic system.

Posted by: Andrew MacKie-Mason | Jan 16, 2012 10:32:21 AM

Based upon the fact that it is logical to assume that a religious institution would want to hire only employees who support the religious mission of their church, why would you want to make a distinction between a secular employee and a ministerial employee, when Religious Liberty guarantees freedom of religion for all?

Posted by: Nancy D. | Jan 16, 2012 12:23:05 PM

I take it that you're asking why I think some version of a notice requirement should be required. I think everyone can agree that the terms of employment should be agreed upon and clear to all parties before entering into an employment relationship. Under the current regime, that includes whether or not the employee is protected by various labor laws. Since there are some employees of religious organizations who are protected by those laws and some who are not, a commitment to fair contract principles would seem to require that all parties agree on the ministerial status of a position before hiring.

Posted by: Andrew MacKie-Mason | Jan 16, 2012 2:26:49 PM

Andrew, I agree that religious organizations ought to be fair with their employees and that fairness includes some degree of notice. The scope of legal obligations is a more complicated matter, in part because many churches are very small and can have trouble affording (or finding free) legal counsel to help them draft language that will avoid minefields in the borderline cases that you are specifically raising. (Small employers are still subject to many state EEO laws.) Would you support specific notice requirements in other cases where an employee might not be covered? Should every employer under the federal coverage minimum of 15 employees inform all prospective workers of that fact, before an applicant takes a job, and update it regularly as the workforce goes up and down? Should every employer that may decide at some point to apply a bona fide occupational qualification for a position specifically inform prospective or current employees of that fact and the circumstances under which it may decide to do so? And there are many issues outside of the EEO context: for example, should the employer and employee have to agree in advance that creative work done by the employee will be owned by the employer? I'm not aware of the law requiring advance contract-type agreement in many situations other than collective bargaining or tenure-type arrangements. Should the scope of coverage of ministers be different?

For federal EEO law specifically, all it requires, I believe, is that covered employers post notices about general provisions of the laws. Those are deemed sufficient to trigger applicable questions in employees' minds.

Posted by: Tom Berg | Jan 16, 2012 3:26:37 PM

Tom, those are of course good points, and the balance between requiring notice and imposing too much of a burden on the employer is a difficult one to draw. That's why I'm hesitating to say that there should be an explicit notice requirement, but leaning towards saying that some form of "notice" should play a role in the evaluation.

What I think might be a reasonable balance is to put a significant (though not necessarily dispositive) on (a reasonable person in the situation of) the employee's understanding of the "ministerial" nature of the position at the time of hiring. So the employer could protect itself by providing notice, especially in marginal cases, but there wouldn't be a hard rule that requires notice.

To go back to your original post, it seems that the Alito/Kagan approach is closer to this than Thomas's, since it sounds like Thomas would defer to the religious organization's claims at the time of lawsuit even if those claims weren't clear to any of the parties at the time of hiring. (Weekend sickness got in the way of me reading the opinion so far, though, so I'm not sure my characterization is entirely correct.)

Anyways -- I could be way off base with this, and of course I'm far from an expert. But I'm interested in how this plays out, whether explicitly or implicitly in how lower courts define the boundaries of ministerial positions.

Posted by: Andrew MacKie-Mason | Jan 16, 2012 5:06:25 PM

Why would you not have the person seeking employment read the mission statement of the particular religious institution where he is seeking employment and sign it if he is in agreement?

Posted by: Nancy D. | Jan 16, 2012 6:56:36 PM

Nancy, my understanding of H-T is that simply requiring an employee to agree with the "mission statement" of the religious organization is not enough to give the organization protection under the ministerial exemption. (Someone more knowledgable, please correct me if I'm wrong about the opinion.)

Even if it were, I doubt every religious organization will expect ministerial-level commitment to its tenets of faith of all its employees. My church, I know, employs people who are not Christian. I suspect many (if not most) religious organizations do likewise.

Posted by: Andrew MacKie-Mason | Jan 16, 2012 7:39:25 PM

Even if one is not a member of the particular faith community, they can still support the religious mission of that particular institution.

Posted by: Nancy D. | Jan 16, 2012 8:13:05 PM

Nancy, that is true, but not relevant to the religious-freedom issue involved in the ministerial-exception context.

Posted by: Rick Garnett | Jan 16, 2012 9:55:17 PM

The term "ministerial-exception" serves as a diversion in an attempt to obstruct Religious Liberty, as the term " person" serves as a diversion to obstruct our inherent Right to Life.

Posted by: Nancy D. | Jan 16, 2012 11:02:14 PM

I'm glad for this decision.
But what I've often wondered about is the case of a non-ministerial employee working in a church.

For example, if a non-ministerial employee worked in a christian church, would he or she be able to restrict any of the religious expression in the church by claiming it is discriminatory?

Sorry for getting off topic, but this concerns me.
There may have already been a case about this, or maybe it is a no-brainer that such a thing couldn't happen, but I'm still curious.

If anyone has any thoughts about this I would appreciate it.

Thank you.

Posted by: joe jenkins | Jan 20, 2012 4:32:17 AM