If you read the Supreme Court’s Hosanna-Tabor decision, you may have noticed footnote 4, which said this:

A conflict has arisen in the Courts of Appeals over whether the min­isterial exception is a jurisdictional bar or a defense on the merits . . . . We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear[the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception

Howard Wasserman (FIU) has a very nice piece in the University of Pennsylvania on-line journal about this distinction, where he defends the merits-based reading of the ministerial exception and criticizes the jurisdictional reading.  The distinction makes a difference because on the jurisdictional reading, the ministerial exception acts as a categorical bar on the power of courts to hear these sorts of cases, while on the merits-based reading, it allows courts to hear these cases and instead “bars” legislatures from dispensing with constitutional protections for religious organizations who employ “ministers,” as legally defined.

It may not surprise readers to know that I agree with Howard’s (and, now, the Court’s) view of the ministerial-exception as a merits-based limitation, in part because of my own view that the ME instantiates — or should be read to instantiate, per Hosanna-Tabor — a kind of common-law, particularistic constitutionalism which invites courts to make fine distinctions in arriving at conclusions about whether the ME should apply.  That approach would not work if the ME were treated as a categorical bar.  Indeed, I take some of the historical reasons for finding the ME to be a worthwhile doctrine not to be categorical, but to be one of a series of reasons which courts ought to countenance when examining ME defenses.  But whatever one’s position, anyone interested in the federal courts component of this issue will enjoy Howard’s careful piece.

ADDENDUM: I had one little afterthought about Howard’s claim, which I wanted to share and am curious how he would respond.  It seems to me that the difference between a jurisdictional bar and a merits-based defense appears very distinct at the edges.  One is governed by a Rule 12(b)(1) disposition, while the other is governed by Rule 12(b)(6) after some inquiry into the merits.  But in practice, might it not often be the case that the more powerful one makes the merits-based defense, the more it will begin to resemble a jurisdictional bar?  Indeed, as Howard notes, dismissal on 12(b)(6) grounds is generally with prejudice, while a 12(b)(1) dismissal is without prejudice.  But if one constructs an extremely powerful affirmative defense (one which, in practice, often means victory for the defendant religious organization), doesn’t that give the religious organization the best of both worlds — something which for all intents and purposes looks like an outright bar, and where the case is then also dismissed with prejudice?

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