The New Footnote 4?

For all the attention given to the Supreme Court’s decision in Hosanna-Tabor v. EEOC, there’s been very little attention given to footnote 4 of the decision, which states the following:

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) (internal quotation marks omitted). 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.

Now for many, this footnote is just a civil procedure issue, which says little about the core law & religion debates addressed in Hosanna-Tabor.  Indeed, Howard Wasserman has a thoughtful piece exploring how this footnote fits within a larger trend of Supreme Court decisions addressing the distinction between jurisdictional bars and merits-based defenses.

But Wasserman’s arguments notwithstanding, I can’t shake the feeling that this footnote says something very important about the relationship between church and state.

For some time, a number of authors have contended that constitutional doctrines such as the ministerial exception functioned as jurisdictional bars; that Continue reading

The Role of Private Law in Litigating Religion: Part II

In my last post, I began responding to Mark’s spot-on question: in order to ensure that parties have a forum to adjudicate disputes turning on religious doctrine or practice, why not simply have parties to an agreement incorporate religious arbitration provisions?  So long as the parties specify a particular institution that will select arbitrators, such a tactic avoids the Establishment Clause problems that might arise from a court having to interpret a religious term in an agreement (such as the panel will be made up of “three Orthodox rabbis” or some sort of religious term used to describe required performance).  If this is true, then why is it I also have been advocating for courts to play a more active role in resolving disputes that turn on religious doctrine or practice?

As I noted previously, I wholeheartedly concur with Mark’s point; this is one of the key reasons why I am a strong proponent of religious arbitration.  Such tribunals can resolve disputes that courts, as a matter of current constitutional law, cannot.  I’ve expressed this point, among others, in two of my recent articles, here and here.

But relying on religious arbitration is only part of the puzzle.  If we take as a goal that we would like to ensure parties have a forum to resolve all disputes – including disputes that turn on religious doctrine or practice – then we’re going to need courts to play a significant role.

True, some disputes can be resolved by religious arbitration.  When sophisticated parties draft agreements, they are likely to craft religious arbitration provisions that ensure disputes arising under the agreement are Continue reading

The Role of Private Law in Litigating Religion: Part I

In my last post, I argued that there might be more room for courts to enforce arbitration agreements that require courts to interpret inherently religious provisions.  The example was a provision that required a matter to be arbitrated by “three Orthodox rabbis.”  By contrast, a New York court – in keeping with prevailing interpretation of the Establishment Clause – refused to enforce the provision on the grounds that doing so would require judicial resolution of a religious question.

Mark followed up with a great point: isn’t the best way to deal with these problems by having religious arbitration provisions simply specify a particular institution to appoint religious arbitrators?  This way, courts could enforce the provision without resolving a religious question and then, after the arbitrators issued an award, they could enforce the award by deferring to the arbitrators’ award.  Such an approach ensures the judicial enforcement of a religious arbitration award without any of endorsement or entanglement problems.

Mark is undoubtedly correct; the existence of permanent religious arbitration courts are an important mechanism for insulating religious dispute resolution Continue reading

Litigating Religion Redux

I’ve been editing the latest draft of my forthcoming article “Litigating Religion” in anticipation of presenting the piece at this year’s Stanford/Yale/Harvard Junior Faculty Forum (I’ve also been pleased to have the piece discussed previously on the CLR Forum here and here).  The primary thesis of the article is that the Establishment Clause should not be interpreted to prohibit courts from adjudicating religious questions; instead, it should be interpreted to prohibit courts from adjudicating claims properly within the province of religious institutions.  Put differently, courts should resolve religious disputes where no other religious institution is capable of doing so.

One section of the article is dedicated to discussing court cases that raise religious questions, but where there is no religious institution that has an interest and the authority to resolve the dispute.  Given that I’m always looking for more examples, I was particularly pleased to see a post from Eugene Volokh about a 2007 case (only recently posted on Westlaw) that fits the bill where a court refused to enforce an arbitration provision that called for the appointment of “Three Orthodox Rabbis” as arbitrators.    The court refused to enforce the provision on the grounds that “[t]he Establishment Clause of the First Amendment prohibits a civil court from resolving issues concerning religious doctrine and practice.”  Thus determining whether an arbitrator is Orthodox – so as to satisfy the arbitration agreement – would run afoul of the First Amendment.   Instead, the court severed this provision from the arbitration agreement and authorized each party to select an arbitrator and have those two arbitrators select a third.  As the court noted, “[a]lthough the provision requiring orthodox arbitrators is unenforceable, the parties are free to select arbitrators, who in their own judgment, meet the religious requirement.”

But is this the preferred outcome?

Continue reading

Helfand on Litigating Religion

Michael A. Helfand (Pepperdine University School of Law) has posted a very interesting article, Litigating Religion.  In an earlier liveblogging post, Professor DeGirolami discussed Professor Helfand’s talk drawn from the paper at the Religious Legal Theory Conference.  The abstract of the article follows.

This article considers how parties should resolve disputes that turn on religious doctrine and practice – that is, how people should litigate religion. Under current constitutional doctrine, litigating religion is generally the task of two types of religious institutions: first, religious arbitration tribunals, whose decisions are protected by arbitration doctrine, and religious courts, whose decision are protected by the religion clauses. Such institutions have been thrust into playing this role largely because the religion clauses are currently understood to prohibit courts from resolving religious questions – that is, the “religious question” doctrine is currently understood to prohibit courts from litigating religion. Continue reading

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