I was pleased to take part last night in an event at St. John’s Law School dealing with the ministerial exemption and the Hosanna-Tabor case. The case and the doctrine have been discussed a good deal already, but for those who can’t get enough, here are some additional scattered thoughts.
1. A perhaps somewhat pedantic point about names first. I prefer “ministerial exemption” to “ministerial exception.” From what I have seen in the briefing of the case, I am in the great minority. My reasons are historical and linguistic. The historical reason is that the doctrine of the ministerial exemption first arose in American law in the McClure case out of the Fifth Circuit in 1972, and was in some measure a reaction to the 1964 Civil Rights Act. At that point, the free exercise approach in operation was the substantial burden/compelling interest test announced in the 1963 case, Sherbert v. Verner. The idea was that “exemptions” from generally applicable laws are constitutionally required in certain circumstances, and the ministerial “exemption” was part of the general doctrinal geist.
One might say, well, “exception” really means the same thing as “exemption,” but I do not think that’s right. An exemption is an immunity, and so conveys the sense of being set apart or in an entirely different category. An exception conveys none of these things: that which is excepted is ordinarily, as a matter of course, in the single, unified category. Title VII and other anti-discrimination laws contain “exceptions” for religious discrimination by religious entities; they do not contain exemptions for those entities, because their fundamental point of departure is that religious institutions are generally in the same category as any other organization. The fact that one is in the exempted — and therefore (conceptually, jurisdictionally, institutionally) distinct — category does not necessarily mean that one is untouchable by the state. In fact, I tend to take a somewhat less absolute view of the ministerial exemption than do some folks (folks whom I greatly respect). But it does suggest something of substance that is different from an exception.
I also recognize that as of Employment Division v. Smith, free exercise took a different turn. There were no longer any constitutionally required exemptions from generally applicable laws. But this only underlines the point that the historical soil in which the ministerial exemption took root was the 1960s-70s Sherbert framework, not the Smith framework. It’s true that people have made interesting, though somewhat problematic, arguments that Smith only dealt with individual claims of religious exemption, and that it therefore did not address institutional exemption (and here I think Caroline Corbin’s sharp arguments against this position are well worth considering). But the bottom line for me is that the notion of an exemption is a much easier fit with the doctrinal history that preceded Smith. And it is better — more historically and linguistically precise — to reserve the idea of an “exemption” for something like the ministerial exemption, while using “exception” for something like a statutory carve-out (assuming, of course, that one believes that there ought to be a ministerial exemption at all).
2. I want to recommend three pieces that, as I’ve tried to immerse myself in the literature and briefing of the ME, are truly excellent, with just a couple of thoughts about what I’ve enjoyed.
First, Chris Lund’s absolutely terrific piece in defense of the ME. Anybody who wants a rounded understanding of the doctrine of religious autonomy and its connection with the ME should begin with Lund. Two things I really enjoyed about the piece: (1) Chris argues that in the sphere of church property disputes (from Watson v. Jones on through to Kedroff and other cases), it makes sense for there not to be a categorical rule against court intervention, because courts of necessity must decide what happens to real or personal property. There’s a ‘res’ there which needs disposing of. But that is not the case when one is dealing with conflicts like deciding whether somebody should remain a bishop, or whether a religious teacher can be terminated. An interesting argument. (2) At one point, Chris makes the point that the Sixth Circuit approached the question of Cheryl Perich’s “primary duties” in the way that one might think of a lawyer billing his work to two different clients — the secular and the religious client. That’s an elegant and subtle point — indeed, it says something about the mentality of the billable hour itself.
Second, Paul Horwitz’s piece. Paul puts a nice spin on the idea that legal academics ought to be responsible for the consequences of their ideas. “Act III” — the part of the social process that academics rarely see or perhaps even invest themselves in — is the time where we work to ensure that the institutions which we protect are…worthy of the protections which we demand for them. Act III may not be a legal spectacle, to be sure. But law is a comparatively weak and unimportant resource for influencing social practices, a fact sometimes obscure to legal scholars. Thoughtful as always.
Third, Rick Garnett has posted a piece to appear in the Northwestern Law Review Colloquy, but I recommend the amicus brief itself that he, Tom Berg, Carl Esbeck, Eugene Volokh, and Kimberlee Colby, among others, filed. The historical overview of church-state independence is thorough and interesting. I also liked this line from the summary of the argument:
For nearly a thousand years, the tradition of Western constitutionalism and the project of protecting political freedom by marking boundaries to the power of government have been assisted by the principled commitment to church-state separation, correctly understood. A community that respects — as ours does — both the importance of, and the distinction between, the spheres of political and religious authority is one in which the fundamental rights of all are more secure; a government that acknowledges this distinction, and the limits of its own reach, is one that will more consistently protect and vindicate the liberties of both individuals and institutions.