Hosanna-Tabor has come and gone, with a flurry of commentary out of the gate and now a bit of (perhaps welcome!) silence. Last week, I described the decision as particularist, but I did not define the term. Judicial particularism is a concept that I explore in my current book project, Tragedy and History: The Quality of Religious Liberty, but for purposes of this post, I thought to offer some quick-shot thoughts about what judicial particularism might mean — first what it does not, or need not, mean, and second what I believe it does, or at least could, mean.
If judicial particularism is taken to mean only the simple and bland proposition that “context matters” in the adjudication of cases, then that seems fairly uncontroversial. Of course context matters. Who would disagree? Even those who prefer the ostensible discipline of hard rules in adjudication acknowledge that general rules are not self-applying and that the specifics of a case will and ought to affect the outcome.
Judicial particularism also does not necessarily mean or imply adjudicatory narrowness, in the sense of deciding only the absolute minimum that one needs to dispose of the case. It is true that often times particularistic judgments may also be narrow judgments. Indeed, this is a position with great appeal. But one could be both a judicial particularist and write a decision that intimates (perhaps subtly, in dicta, or perhaps implicitly, by failing to say anything) the resolution of other, future cases that are factually similar on similar grounds, or the resolution of other, future cases that are factually dissimilar on dissimilar grounds.
Following Jonathan Dancy’s work on moral particularism, I take the core of judicial particularism to be that it is possible to decide cases reasonably predictably without the necessity of relying on a single general value or principle, or even a set number of general values or principles, to do so. The sting in particularism is not that ‘context matters’ but that reasons or values which are important in some specific context may not be so in others. Reasons or values do not have either constant or categorical weight across a range of disputes, or even among cases within a range, so that what is a reason for reaching a judgment in one set of circumstances may not, as Dancy puts it, retain the same “polarity” in another set of circumstances.
I should make clear that for me the analogy from moral particularism to law is more suggestive than direct. I do not believe that a rigorous version of particularism is well-suited to law, principally because I believe in a comparatively strong approach to the bindingness of precedent for various reasons not directly related to particularism. But I do think that a soft particularism is one way to understand certain decisions in religion clause law, including Chief Justice Roberts’s opinion in Hosanna-Tabor. Take, for example, the Chief’s discussion of the bare fact of the official title, “minister.” It seems to me that what the Chief is saying is that the Sixth Circuit was wrong completely to disregard the fact that Cheryl Perich had obtained the title of minister — not even to consider that fact in deciding the ME question. An official designation is often a reason to ascribe a particular legal status. But at the same time, the Chief was very much unwilling to say that the formal title itself “automatically ensure[s] coverage.” Slip op. at 18. The formal title is an invitation to ask more fact-specific questions about the nature of her position and the perceptions of the employer and the employee with respect to it.
Suppose it turned out that Perich had been given the title “minister” very late in the game — on the eve of litigation, say — precisely and solely for the reason that it would make it more likely that courts would apply the ministerial exception to her case. It seems to me that one way to interpret the decision is that in such a case, the formal title minister would not merely be no reason to find that the exception applied. It might in fact be a negative reason — a reason exactly to find that the ministerial exception should not apply. That would be an example of a reason which might have salience in one sort of context but the opposite sort of salience in another.
Or suppose instead that Perich had been given the title, “minister,” but that in the particular faith under consideration, everyone who joins the religion is automatically given the title minister as a pro forma matter. To be a minister, all one needs to do is to be nominally affiliated with the religious organization. In that sort of case, a reason which might have salience in one sort of context would have no (but not negative) salience in this context.
Much the same method may be applied to other sorts of reasons cited by the Court. Take, for example, the fact that, in the Court’s view, Perich held herself out as a minister of the Church. The subjective perception of the employee with respect to the nature of his or her position, and the actions taken by the employee as a consequence of those perceptions, are, the Court seems to say, often times important reasons in determining whether the position is, in fact, “ministerial.” But one could imagine fairly easily situations in which the subjective perceptions (and consequent actions) of the employee would not count as reasons. Suppose the employee believed in earnest that he ought to count as a minister, and held himself out as a minister, but it was plain that nobody within the religious organization ever thought the same thing. The reasons for the employee’s beliefs need not be delusional; they might be grounded in a different or dissenting set of theological or doctrinal beliefs about what the religious organization ought to require in order to be a minister. The point is that a reason which might be salient in one context might lose its salience entirely, or at least acquire a different polarity, in another. And the best way to achieve an evolving sense of the quality of the ministerial exception is by the accretion of cases over time which give jurisprudential shape to its content.
That is why, in my view, the staking out of a particularist approach by the Chief (with the unanimous agreement of his colleagues) — coupled with the Court’s “reluctan[ce] to adopt any test” — at the very birth of the ministerial exception is so interesting from a doctrinal perspective. It is somewhat more difficult to replace a hard rule with a particularist method once the hard rule has become encrusted with precedent (not at all impossible, but at least more complicated). But by bringing the ministerial exception into being as a jurisprudential creature living in a particularist legal world, the Court (all 9 of them) has set the future of the ME on a decidedly common law course. I may be wrong, but I do not believe this has happened in any other corner of religion clause law. It will be interesting to see how the ME develops through the years, nurtured on the diet of common law constitutionalism.