Wasserman on the Ministerial Exception and Jurisdiction

I noted previously the Supreme Court's determination in Hosanna-Tabor v. EEOC that the ministerial exception is a limitation on the merits of an employment discrimination claim, not a subject matter jurisdictional defense (and my agreement with Greg Kalscheur's ministerial-exception-as-jurisdiction argument). Howard Wasserman (FIU) has a thorough and interesting exploration of that topic here. Among Howard's basic moves is a distinction between prescriptive and adjudicative jurisdiction:

Prescriptive jurisdiction, and its corresponding enforcement jurisdiction, contrasts with adjudicative jurisdiction. The latter is a court’s root power to adjudicate—to hear and resolve legal and factual issues under substantive legal rules, and to provide the adjudicative and remedial forum to resolve claims of right. Adjudicative jurisdiction has nothing to do with the ultimate success of a claim on its merits, but rather focuses solely on whether the court has the power to provide a forum for considering and resolving the legal and factual disputes under those rules in either direction.

Failure to distinguish prescriptive jurisdiction from adjudicative jurisdiction is the fundamental flaw in the adjudicative jurisdiction approach to the ministerial exemption. Greg Kalscheur and others frequently emphasize the jurisdictional referent in church autonomy and in the religion clauses, speaking of limits on “federal jurisdiction” or “civil jurisdiction” or of constitutional limits on the jurisdiction of civil or secular government and authority.

Again, however, a court’s jurisdiction to adjudicate a case under existing substantive law is different from Congress’s jurisdiction to bring that substantive law into existence in the first place. The ministerial exemption is indeed a constitutional bar on civil jurisdiction. But the bar is not on the court’s civil jurisdiction to decide the case before it, but on Congress’s civil jurisdiction to enact legal rules regulating churches’ conduct toward ministerial employees. The nonexistence of an enforceable legal rule means the statutory claim to enforce that rule fails—on the merits.

That said: 

But religious institutions remain special even if the ministerial exemption provides a merits victory. The Hosanna-Tabor Court insisted that the First Amendment “gives special solicitude to the rights of religious organizations.” It is, or should be, an equally powerful statement on the penultimacy of the state that the church lies beyond Congress’s prescriptive jurisdiction. The religion clauses function just as much as a structural protection for religion when they bar Congress’s exercise of its prescriptive regulatory authority and place religious organizations beyond the reach of secular law. The church’s status as a special competing and predominant sovereign is doing just as much work in placing church personnel and organizational decisions beyond congressional regulation. The broader symbolic point—that the church enjoys unique constitutional immunity from the state’s sovereign reach on some issues—remains. And that symbolic point can be made without logical, theoretical, and doctrinal incoherence.

As they say, go read the whole thing.