Posted on by

Griffin on Why Hosanna-Tabor Misinterprets the First Amendment

Leslie C. Griffin (University of Houston Law Center) has posted The Sins of Hosanna-Tabor.  The abstract follows.

The Supreme Court has lost sight of individual religious freedom. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court for the first time recognized the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Court ruled unanimously that Cheryl Perich, an elementary school teacher who was fired after she tried to return to school from disabilities leave, could not pursue an antidiscrimination lawsuit against her employer. Read more

Posted on by Mark Movsesian

Religious Arbitration and the Church of Scientology

CLR Forum friend (and soon to be CLR Forum Guest) Mike Helfand has a very interesting post on PrawfsBlawg about a Florida court decision this month upholding an arbitration agreement between the Church of Scientology and two of its former members. The former members, whom the church expelled last year, alleged that the church had wrongfully retained more than $27,000 the members had given it. The church argued that this dispute fell within an arbitration agreement the former members had signed when they joined the church — there’s an interesting rite of initiation — and the court agreed. The former members would have to submit to arbitration, notwithstanding the fact that all the arbitrators, according to the agreement, must be Scientologists in good standing.

Mike’s post addresses the interesting First Amendment issues that lurk here, particularly the intersection with the church autonomy doctrine. Under the Federal Arbitration Act, he notes, a court can vacate an arbitration award that is tainted by fraud, misconduct and collusion. Under the church autonomy doctrine, however, it’s not so clear. Mike reads Supreme Court cases like Serbian E. Orthodox Diocese v. Milivojevich as insulating religious arbitration from judicial review for fraud and collusion. Milivojevich concerned the disciplining of a bishop, though, and I wonder if the Court would extend its language beyond the ministerial context – a question I’m sure Mike will address in subsequent posts.

Posted on by

Esbeck on Hosanna-Tabor and the First Amendment

Carl H. Esbeck (University of Missouri School of Law) has posted A Religious Organization’s Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment.  As noted by Professor DeGirolami in an earlier post, Professor Esbeck co-authored an amicus brief in the case.  The abstract of the article follows.

In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required.

Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during a sacrament. Smith held that the Free Exercise Clause was not implicated when Oregon enacted a neutral law of general applicability that happened to have an impact on a religious practice. The Court admitted that the nondiscrimination law in Hosanna-Tabor was a general law of neutral application that happened to have an impact on the School’s ability to fire a teacher. It distinguished Smith. Read more

Posted on by

Murray on Assumptions in Hosanna-Tabor

Brian M. Murray (Staff Attorney, Community Legal Services of Philadelphia) has posted The Elephant in Hosanna-Tabor. The abstract follows.

This article identifies an unarticulated and widely ignored assumption in the Supreme Court’s recent religious liberty decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which grounded the ministerial exception in the Free Exercise Clause. Specifically, the Court’s failure to articulate which organizations can invoke the ministerial exception could undermine the Free Exercise Clause that is the very basis of the exception’s existence. I argue that the Court’s oversight will result in significant future litigation in a post-Employment Division v. Smith world. The Court’s decision in Hosanna-Tabor uses ambiguous and careless language when failing to articulate the assumption mentioned above. Chief Justice Roberts’ majority opinion uses phrases such as “religious body,” “church,” and “religious organization” interchangeably and without explanation. I explain why this is inadequate from an historical, jurisprudential, and practical perspective by highlighting the tradition of recognizing institutional autonomy and the rise of unconventional religious entities, known as “parachurches,” that self-define as religious. These organizations will present the trickiest case studies with respect to the ministerial exception, thereby making future litigation on this issue likely.
Read more

Posted on by Mark Movsesian

Cardinal Suggests Legal Challenge to Contraception Mandate

In a letter he sent Friday to Catholic bishops, Cardinal Timothy Dolan, President of the US Conference of Catholic Bishops, stated that, notwithstanding President Obama’s invitation to “work out the wrinkles,” talks between the Conference and the White House on the revised contraception mandate have not gone well. According to the cardinal, White House staff have stated that the Administration will not expand the the exemption for religious institutions and have suggested the bishops listen to more “enlightened” voices within Catholicism. As a result, the cardinal wrote, the Conference is considering litigation:

In the recent Hosanna-Tabor ruling, the Supreme Court unanimously defended the right of a Church to define its own ministry and services, a dramatic rebuff to the administration, apparently unheeded by the White House. Thus, our bishops’ conference, many individual religious entities, and other people of good will are working with some top-notch law firms who feel so strongly about this that they will represent us pro-bono. In the upcoming days, you will hear much more about this encouraging and welcome development.

Hosanna-Tabor  is not directly relevant to this issues surrounding the mandate, of course, but I take it the cardinal is using the case more or less rhetorically. In Hosanna-Tabor, the Court unanimously rejected the Administration’s assertion that the  Free Exercise Clause does  not apply to a church’s employment of its minsters — as the Court stated, a rather “remarkable” assertion that suggests an unfortunate antipathy for the special protection the American Constitution offers religious communities.

Posted on by Marc O. DeGirolami

Garnett on the Ministerial Exception

The on-line interview series, Dialogues on Law and Justice, first noted by my colleague Mark, has posted a very useful and informative dialogue with Rick Garnett (Notre Dame) about the ministerial exception; the Hosanna-Tabor case and the several positions of the government, the legal academy, and the Court; some of the mechanics of Supreme Court cert. review; the relationship of the ME to other free exercise issues; and the various meanings of church-state “separation.”  Check it out.

Posted on by Marc O. DeGirolami

Wasserman on the Jurisdictional/Merits-Based Distinction Within the Ministerial Exception

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?

Posted on by Mark Movsesian

European Human Rights Court Rules Clergy Have a Right to Unionize

Here’s an interesting approach to church autonomy. This week, a chamber of the European Court of Human Rights ruled that clergy (and lay employees) of the Romanian Orthodox Church have a right to unionize, notwithstanding the Church’s objections. In 2008, clergy in a Church diocese formed a union to defend their “professional, economic, social and cultural interests” in their dealings with the Church. When the Romanian government registered the new union, the Church sued, pointing out that Church canons do not allow for unions and arguing that registration violated the principle of church autonomy. A Romanian court agreed with the Church, and the union challenged the court’s judgment in the ECtHR. The union argued that the decision not to register it violated Article 11 of the European Convention, which grants a right to freedom of association.

In this week’s decision, the chamber reasoned that, under Article 11, a state may limit freedom of association only if it shows “a pressing social need,” defined in terms of a “threat to a democratic society.” Romania had shown no such need here. The chamber faulted the Romanian court for considering only church traditions and ignoring other important factors, such as domestic and Read more

Posted on by Marc O. DeGirolami

What Does It Mean to Call a Judicial Decision Particularist?

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. 

Read more

Posted on by Marc O. DeGirolami · 3 Comments

The Historical and Particularist Quality of Hosanna-Tabor

I’m still digesting the Court’s unanimous decision in Hosanna-Tabor.  But I thought to note something interesting (to me), given my current book project titled Tragedy and History: The Quality of Religious Liberty. 

In this post over at Mirror of Justice a few months ago, I predicted that the Court would issue a decision that reflected a highly particularized and deeply historically informed sensibility — historical both in a social and doctrinal fashion.  I think that Chief Justice Roberts’s majority opinion does just that.  Take a little tour of the decision with me.

Read more