Posted on by Mark Movsesian · 3 Comments

Is Conservative Judaism a Cartel?

CLR Forum reader John McGinnis points out an interesting article in the New York Times this weekend, about Duke Law Professor Barak Richman’s quest to have the courts declare Conservative Judaism’s rules for naming rabbis a violation of the Sherman Act. It’s not entirely clear from the Times article, but, as I understand it, synagogues that affiliate with Conservative Judaism must select rabbis from lists approved by the Rabbinical Assembly, a membership association of Conservative rabbis.  Richman believes this mechanism makes the Rabbinical Assembly an illegal “cartel” that “harms both the economic welfare and the religious interests of individual congregations.” He argues that the ministerial exception properly applies only to hierarchical religions and employers, not “congregational denominations,” like Conservative Judaism, in which individual congregations, not the central body, employ clergy. You can read his argument in an amicus brief he filed, along with several other antitrust scholars, in the Hosanna-Tabor case.

I don’t know whether this mechanism would violate the Sherman Act in a commercial setting. I’m confident the logic of the ministerial exception applies here, though. From what I can gather, Conservative Judaism is a hybrid polity, not hierarchical but not strictly congregational, either. Authority seems to be shared between the central body, the United Synagogue of Conservative Judaism, and local congregations. It hardly seems inappropriate to require local congregations that affiliate with the central body to choose clergy the central body approves; otherwise, the central body could lose control over the movement’s meaning and message. Although Professor Richman is correct that the rules impinge on individual congregations’ power to choose whomever they wish as clergy, that’s just a consequence of affiliating with the central body. If congregations want total freedom of choice, they can organize outside the Conservative movement and select whomever they wish.

Posted on by Mark Movsesian

DC Court of Appeals: Ministerial Exception Does Not Bar Minister’s Breach of Contract Suit Against Church

Here’s a reminder that, even after Hosanna-Tabor, the ministerial exception does not bar all lawsuits clergy bring against church employers. The DC Court of Appeals has allowed a minister’s breach of contract claim against her former congregation to go forward, notwithstanding the congregation’s claim of immunity. The Rev. Deloris Prioleau, an ordained AME pastor, had a series of one-year employment contracts with the Cornerstone AME Church in DC. When Cornerstone failed to pay Prioleau $39,000 it owed her on her final contract, she brought a breach of contract action. Last week, the DC Court of Appeals ruled that the action could proceed under the “neutral principles of law” approach. Prioleau’s suit, the court said, appeared to be “a straightforward contract case, uncomplicated by ecclesiastical considerations.” Moreover, the ministerial exception did not apply. Prioleau had not challenged Cornerstone’s “authority to hire, to fire, or to assign her duties” and did not seek “reinstatement.” (Oddly, the court did not discuss Hosanna-Tabor itself). The court ended its opinion with a warning, however:  “if it becomes apparent … that this dispute does in fact turn on matters of doctrinal interpretation or of church governance, the trial court may grant summary judgment to avoid ‘excessive entanglement with religion.'” The case is Second Episcopal District African Methodist Episcopal Church v. Prioleau, 2012 WL 3243190 (D.C. Court of Appeals, Aug. 9, 2012).

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Bartrum on The Ministerial Exception and the Limits of Religious Sovereignty

Ian C. Bartrum (U. of Nevada, Las Vegas, William S. Boyd School of Law) has posted The Ministerial Exception and the Limits of Religious Sovereignty. The abstract follows.

In January, the Supreme Court announced its decision in Hosanna Tabor v. EEOC and gave its official blessing to the controversial bit of doctrine known as the “ministerial exception.” The exception, which has been alive in the Circuit Courts for nearly forty years, exempts religious organizations from employment discrimination laws in the context of “ministerial” hiring decisions. Thus, such organizations are free to discriminate against ministerial employees not only on the basis of religion—which various statutory exemptions already permit—but also on the basis of race, gender, sexual orientation, and disability. Several thoughtful and well-­‐respected voices have suggested that this effectively places churches “above the law,” and in some sense these criticisms seem to ring true. The constitutional justification often offered for this state of affairs, however, is that churches are not so much above the civil law, as simply outside of its jurisdiction. That is, while we may disapprove of the ways that a church selects its leadership—indeed, we may even believe that certain hiring practices are illegal—our constitutional structure simply does not empower the government to intervene in matters of church governance. And we have structured our Constitution in this way based, in large part, on the liberal Lockean conviction that church and state operate within separate and incommensurable spheres.

Carried to its logical extreme, however, this conception of separate and independent religious sovereignty suggests that the bar to governmental intervention in church governance is absolute; that a church can do anything—including, presumably, perform sacrificial rituals—that its members believe essential to basic governance decisions. In truth, however, no one I know of holds this sort of extreme, absolutist view, and thus arises the theoretical puzzle this essay addresses. If religious sovereignty is not absolute—if the liberal check on the state’s power to invade church jurisdiction does not go “all the way down”—then where do the limits on that sovereignty lie, and how do we determine that a church has exceeded them? In what follows, I draw some lessons from Thomas Kuhn’s thoughts about the shared grounds on which scientists justify their choices between incommensurable theoretical paradigms. Ultimately, I conclude that we can and do make decisions about the scope of religious sovereignty by balancing constitutional purposes against one another in making what Kuhn called “value judgments.” In the case of the ministerial exception, it is my constitutional value judgment that racial discrimination both exceeds the limits of independent religious sovereignty, and justifies state intervention in church governance.

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Corbin on The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

Caroline Mala Corbin (U. of Miami School of Law) has posted The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Although Corbin addressed this issue last year, this updated article includes Corbin’s reflections post-decision. The abstract follows.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost. In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have.

Posted on by Marc O. DeGirolami

Wisconsin Supreme Court Plurality Dismisses Breach of Contract Claim Under Ministerial Exception

The Wisconsin Supreme Court has dismissed a breach of contract claim against St. Patrick Congregation, a Roman Catholic Church in the Archdiocese of Wisconsin.  The reasoning is…complicated.

The plaintiff had entered into a one-year contract with the Church as “Director of Faith Formation,” and the terms of the contract provided that dismissal was to occur only for “good cause” as determined by the Church.  It was undisputed that the plaintiff was a “ministerial employee,” but the plaintiff sued for her expectation damages (that is, she had already been paid for services rendered) when the Church terminated her.

The Church did not defend on the issue of whether the termination was for good cause.  It instead moved to dismiss under the First Amendment and Article I section 18 of the Wisconsin Constitution (“The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; … nor shall any control of, or interference with, the rights of conscience be permitted….”), on the basis that the plaintiff was a ministerial employee and that the Church is a religious institution.

The case was dismissed but the rationale is kind of a mess. 

Read more

Posted on by Mark Movsesian

ECtHR Decides Church Autonomy Case

2012 is turning out to be a big year for church autonomy rulings across the world. The rulings don’t all cut the same way. In January, the US Supreme Court handed down a pro-autonomy decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,  unanimously endorsing a constitutional “ministerial exception” to the federal employment anti-discrimination laws. In February, a section of the European Court of Human Rights handed down an anti-autonomy decision, Sindacatul “Pastoral cel Bun” v. Romania, holding that Orthodox priests could form a union over their church’s objections. Now, a section of the ECtHR has handed down a pro-autonomy decision in a case involving the employment of a laicized Catholic priest.

In Spain, public schools offer classes in Catholicism, taught by instructors approved by the local bishop. In the most recent case, a local bishop had withdrawn approval of one such instructor, a laicized priest who had taken a public stand against mandatory priestly celibacy. When the school dismissed the instructor, he brought suit under the European Convention, arguing that the dismissal violated his rights to privacy, family life, and expression. Somewhat surprisingly, perhaps, a section of the ECtHR ruled against him. In withdrawing approval, the section stated, the bishop had acted “in accordance with the principle of religious autonomy;” the instructor had been dismissed for purely religious reasons, and it would be inappropriate for a secular court to intrude.

It will be interesting to see whether the Grand Chamber reviews this judgment, or the judgment in the Romanian case, which Romania has already referred. The case is Fernandez Martinez v. Spain, available on the ECtHR’s website here (in French). For an interesting analysis of how this case relates to Hosanna-Tabor, check out Stijn Smet’s post on Strasbourg Observers.

Posted on by Michael Helfand

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 Read more

Posted on by Mark Movsesian

Giving the Ministerial Exception a Bad Name

Over at PrawfsBlawg, our friend Paul Horwitz notes an interesting piece in the New York Times yesterday on doings at the Trinity Broadcast Network, an extremely successful Christian cable channel. Well, “doings” is perhaps too polite. TBN, which advocates the so-called “Prosperity Gospel,” has received many millions of dollars over the years in donations from the faithful — $93 million in 2010 alone. An insider now claims that much of the money has gone to fuel the lavish lifestyle of TBN executives, particularly the network’s founders, the husband-and-wife team of Paul and Janice Crouch. I won’t go into the details, except to say that the portrait is one of high-spending, low-rent excess, and that the allegations come from one of the Crouch’s own granddaughters, who other family members say was the real sponger.

IRS regulations prohibit “excess compensation” for executives of non-profit organizations. According to the Times, though, TBN has been able to avoid scrutiny by relying on the ministerial exception. TBN has allegedly ordained “dozens of staff members . . . including chauffeurs, sound engineers, and others,” as ministers, thus allowing TBN to give them rent-free luxury “parsonages” and to avoid paying Social Security taxes on their salaries. TBN’s lawyer defended the network’s actions, arguing that the hundreds of ordained employees, including performers at a TBN-affiliated religious theme park, had experienced a true religious vocation.

Who knows how these allegations will sort out? One issue that seems sure to arise, though, is fraud. Some of the Court’s church autonomy cases suggest that fraud is a limitation on the ministerial exception, though the cases don’t really develop the idea. If the IRS were to go after TBN, it could argue that the ordinations for company workers without any theological or pastoral training were phony. Questioning such ordinations would obviously raise free exercise concerns, though, and at least one legal expert the Times quotes thinks it won’t happen: “absent clear fraud, the government is not going to touch that.”

Posted on by Michael Helfand

Religion and the New Multiculturalism

Thanks to Mark and Marc for having me here this month.  I’m hoping to blog a bit this month about the competing claims of law and religion in the age of, what I’ve taken to calling, the “new multiculturalism.”  What I’m thinking of here is a growing set of conflicts between law and religion where religious individuals and religious groups are less concerned about recognition and symbolism and more concerned about securing autonomy from the state.  So, for example, I would contend that questions about prayer in public schools and religious symbols on government property have taken a back seat to debates over the ministerial exception (Hosanna-Tabor v. EEOC) and the role of religious law within U.S. courts (e.g. the recent wave of proposed sharia-bans).

One of the things that I’ve found interesting about this focus is how interdisciplinary the inquiries have been.  Addressing this new multiculturalism invariably requires dabbling in everything from arbitration to international law to political theory.  And similarly, in my recent Litigating Religion piece, I’ve been working a bit on the options for resolving disputes that turn on religious doctrine and practice, a question that requires thinking about the alternative dispute resolution paradigms of both public law and private law.  I’m looking  forward  to discussing this wide range of issues here at the CLR Forum this month.

Posted on by Mark Movsesian

Commonweal on the Bishops’ Religious Freedom Statement

Over the past week, I’ve written about criticism from the Catholic right of the U.S. Conference of Catholic Bishops’ recent statement on religious freedom. Of course, there’s also been criticism from the Catholic left. This week, Commonweal has a negative editorial about the bishops’ statement. More in sorrow than in anger, Commonweal maintains that the statement veers into political partisanship. The  bishops’ simplistic, one-sided language, the editorial complains, makes them sound more like Republican party operatives than pastors. Young people already are turning away from organized religion because it seems too political and conservative on social issues. Surely the bishops do not want to exacerbate that trend?

I wonder about this criticism. It’s true that the bishops’ statement highlights the Obama Administration’s contraceptives mandate. The mandate is the first on the list of threats to religious freedom the bishops identify, and surely served as the prime motivation for their statement. But the second item on the list is state anti-immigration laws, like the recent Alabama measure forbidding assistance to undocumented immigrants. In criticizing these laws, the bishops are hardly mouthing GOP talking points. Republican politicians often favor such measures, while the Obama Administration has filed a lawsuit challenging the Alabama law.

Even with respect to the contraceptives mandate, the bishops could be forgiven for saying that they didn’t start this fight. The bishops surely knew that objecting to the HHS mandate would have the effect of highlighting the Church’s position on contraception, and that this position is unpopular, particularly with Millennials. But what choice was there? It was the Obama Administration that issued the mandate during an election year. For that matter, it was the Obama Administration that argued this Term in Hosanna-Tabor that the religion clauses did not even apply to a church’s decision to fire a minister, a position that a unanimous Court characterized as “remarkable.” If it’s inappropriately partisan for religious organizations to respond when government takes steps like these, then religious organizations can never defend themselves in public debate. That may be a good thing from a spiritual point of view, but I don’t think it’s a result Commonweal would approve.