Posted on by

Corbin on the Irony of Hosanna-Tabor Evangelical Lutheran Church

Caroline Mala Corbin (University of Miami School of Law) has posted The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. The abstract follows. – ARH

The question presented in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is whether or not a school teacher named Cheryl Perich should be considered a minister. The success of Perich’s Americans with Disabilities Act retaliation claim turns on the answer. If she is not a minister, she would probably win. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.

In fact, neither the Free Exercise Clause nor the Establishment Clause necessitates the ministerial exception. To start, as announced in Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the Americans with Disabilities Act is a neutral law of general applicability. Arguments that the “church autonomy” cases require courts to defer to church hierarchy and that these cases control instead of Smith ignore Jones v. Wolf, the last church property dispute decided by the Supreme Court. Jones v. Wolf explicitly rejects blanket deference to religious institutions in matters of internal governance. It 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 Perich is a minister will entangle courts in religious doctrine more than simply adjudicating her retaliation claim.

Posted on by Marc O. DeGirolami

Interesting Comments from Chip Lupu on Hosanna-Tabor

The Washington Post has a balanced article on the ministerial exemption and the upcoming Hosanna-Tabor case with some interesting comments from Professor Chip Lupu.  One thing Chip mentions that I had not thought about was that he expects the three female justices, Justices Ginsburg, Sotomayor, and Kagan, to vote for a narrow ministerial exemption (assuming that they vote for an exemption) for the reason that they will want to protect teachers in religious schools who are likely to be women.  I am not sure how these Justices would vote, but I think I agree with Chip that some or perhaps even all three of them are likely to vote for a narrow exemption.  For example, I think Justice Kagan’s dissent in Arizona v. Winn was some indication of her views of religion clause questions, though that case implicated EC issues, and these Justices’ views of the FEC is largely a mystery.  But I had not considered the particular reason that Chip offers.  But if this is a reason to vote against the ME, I don’t think it’s one which would apply to a variety of (perhaps even many) situations in which the ministerial exemption would otherwise apply.  Do others disagree with me?  — MOD [x-posted MOJ]

Posted on by

Horwitz on the Ministerial Exception

Paul Horwitz (University of Alabama School of Law) has posted Act III of the Ministerial Exception. The abstract follows. –JKH

On October 5, 2011, the Supreme Court will hear oral arguments in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case in which the Court will consider the existence and nature of the so-called “ministerial exception”: the judicial doctrine that gives churches legal immunity in employment discrimination cases brought by “ministerial” employees. The case promises to be one of the more important church-state decisions in recent years. In conjunction with the second Annual Law and Religion Roundtable, the Northwestern University Law Review Colloquy will be publishing several pieces on the case.

Posted on by Marc O. DeGirolami

October 4: Hosanna-Tabor Discussion at St. John’s

On October 4 (next Tuesday), CLR and the Catholic Law Student Society at St. John’s University School of Law will co-host an event devoted to Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  The Supreme Court hears oral argument in this case on October 5, so it could not be more timely.  I will be talking about the case — one of the most important religious liberty cases to come before the Court in at least two decades — and the doctrine of the ministerial exemption generally.  There will then be a period of questions, discussants to include my colleagues David Gregory and Mark Movsesian as well as Mr. Peter J. Johnson, Jr., president of Leahy & Johnson, P.C.  I hope to record my thoughts about the discussion here.

The event will occur in the 4th floor Atrium at 5:30 pm.  All are welcome.  If you are in the area, please stop by to say hello.  — MOD

UPDATE: Just after I posted this, I noticed this article about the case.  Likely there will be many similar pieces in the coming days.  In my view, this article is misleadingly titled.  The case is not about religious institutions’ power to “declare” that their employees are exempt from “federal protections.”  It is about whether and in which circumstances (if ever) the Constitution, as interpreted by the Supreme Court, limits the reach of anti-discrimination law.  It may or it may not; but in either case, little turns on anybody’s individual declarations (though conceivably if an institution explicitly waived its rights, that might be relevant).