Act III of the Ministerial Exception

Paul Horwitz^*

Editor's Note: This essay is the third in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

[download pdf]

Introduction

Law is filled with stories without endings.  Case reports and law review articles generally conclude with the judgment on a case.  Once judgment is rendered, either by a judge or by a scholar analyzing an opinion, it is unusual for anyone to consider what happens next.[1]  In drama, a gun that appears onstage in Act I is sure to go off in Act III: the play has not ended until there is a climax; until the full narrative has reached its conclusion.[2]  In law, the curtain often draws shut abruptly at the end of Act II.

Physician, Heal Thyself: Discretion and the Problem of Excessive Prosecutorial Caseloads, a Response to Adam Gershowitz and Laura Killinger

Josh Bowers*

Editor's Note: This Essay is a response to Adam M. Gershowitz & Laura R. Killinger, The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants, 105 Nw. U. L. Rev. 261 (2011).

[download pdf]

I applaud Adam Gershowitz and Laura Killinger for identifying and exploring an almost unconsidered problem: excessive prosecutorial caseloads.[1]  Their premise is that in many large jurisdictions, prosecutors are so overworked that they cannot adequately individualize guilty pleas, assess eligibility and need for rehabilitative programs, comply with disclosure obligations and speedy-trial rules, and (more generally) separate the legally and equitably innocent from the guilty.  Consequently, excessive prosecutorial caseloads have the capacity to burden not only district attorneys' offices but also criminal defendants.

It is no easy feat to recognize a fresh and practically important problem in a criminal justice system that—though shot-through with pathologies—has no shortage of critics on the lookout to spot them.  For that reason alone, their article is a valuable contribution to the literature.  It is all the more impressive that they chart this new territory so well.  Nevertheless, I have three principal concerns.  First, I sense that the problem is not nearly as pervasive as they take it to be.  Second, I believe that prosecutors do not so much lack the ability as the will to manage ballooning caseloads (and, if I am right, this profoundly changes the takeaway).  Third, I foresee a number of reasons—many of which the authors leave unaddressed—to worry far more about excessive public-defender caseloads than prosecutorial caseloads.

Sacrificing Quantity for Quality: Better Focusing Prosecutors’ Scarce Resources

Stephanos Bibas*

Editor's Note: This Essay is a response to Adam M. Gershowitz & Laura R. Killinger, The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants, 105 Nw. U. L. Rev. 261 (2011).

[download pdf]

Adam Gershowitz and Laura Killinger rightly explore an important problem that prosecutors face: they are spread too thin trying to prosecute too many cases.  Their thoughtful, well-written article is an important contribution to the field and usefully complements the burgeoning literature on the underfunding of criminal defense.  As they argue, prosecutorial overwork harms justice in any number of ways.  It delays cases, frustrates victims, makes it harder to spot and free innocent defendants, and impedes lowering punishments for sympathetic defendants.[1]

The root problem, however, is not so much a matter of underfunding of prosecutors’ offices as it is a matter of skewed priorities and metrics of success.  Prosecutors need not pursue every legally supportable charge.  They enjoy discretion in deciding which cases to pursue, which charges to file, and which pleas to offer and accept.  Though they have that discretionary power, too often they do not think strategically about using it.  Indeed, individual prosecutors often reactively prosecute the cases that come before them, instead of proactively setting priorities and focusing on system-wide tradeoffs.  Many offices lack hierarchies or office policies that meaningfully direct line prosecutors’ efforts.  The problem, evinced by the framing of Gershowitz and Killinger’s article, is that prosecutors and the public measure prosecutorial success mostly in terms of the number of cases filed and convictions won.  Throwing money at this problem would only pour fuel on the fire, encouraging prosecutors to widen their nets in the inexhaustible sea of potential cases.

A surer solution is to refocus prosecutors’ efforts to make the best use of inevitably limited money.  For instance, as Gershowitz and Killinger rightly point out, prosecutors pay too little attention to victims and communities, failing to solicit their input and take them seriously.[2]  We must move from worshipping quantity to prizing quality.  Prosecutors need to focus not just on what to do but also how to do it: fairly, respectfully, and effectively.

Hosanna-Tabor and Supreme Court Precedent: An Analysis of the Ministerial Exception in the Context of the Supreme Court’s Hands-Off Approach to Religious Doctrine

Samuel J. Levine

Editor's Note: This essay is the second in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

[download pdf]

Introduction

The United States Supreme Court’s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court’s Religion Clause jurisprudence.  On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations.  The narrow issue at the center of the case is the "ministerial exception," a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees.  This Essay suggests, however, that the real significance of Hosanna-Tabor goes beyond the Court’s application of the ministerial exception to the particular facts of the case.  This Essay looks at the ministerial exception through the broader prism of the Supreme Court’s "hands-off" approach to religious doctrine, which prohibits judicial inquiry into a wide range of questions relating to religious practice and belief.

Rethinking Extraordinary Circumstances

Scott Dodson[*]

[download pdf]

Introduction

Normally, the entry of an unappealed final judgment ends the case forever, even if later developments undermine faith in the accuracy of the decision or the fairness of its procedural grounds.  Litigation must have an end, and a final judgment usually marks that point.

Rule 60(b), however, has long been available to provide relief from judgment to losing litigants where justice so demands.  The rule states that a court may relieve a party from final judgment "[o]n motion and just terms" under five enumerated grounds (including mistake, newly discovered evidence, fraud, voidness, and judgment satisfaction) and one catchall provision.[1]  The catchall, Rule 60(b)(6), provides that a court can relieve a party from judgment for "any other reason that justifies relief."[2]

The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC

Caroline Mala Corbin

Editor's Note: This essay is the first in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

[download pdf]

The question presented in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is whether or not a schoolteacher should be considered a minister.  Although the school teacher in this case, Cheryl Perich, began her employment as a lay teacher, she soon became a called teacher with the title "commissioned minister."  She taught a religion class four times a week and led her class in daily prayers. During the bulk of her workday, however, Perich taught math, reading, English, social studies, science, gym, art, and music to third and fourth graders.

When May a President Refuse to Defend a Statute? The Obama Administration and DOMA

Carlos A. Ball[*]

[download pdf]

Presidents sometimes make the controversial decision not to defend a federal statute they believe is unconstitutional.[1]  It may be tempting, when assessing the appropriateness of these decisions, to adopt one of two categorical positions: either that the President should never refuse to defend a law based on his view that it is unconstitutional, or that the President has unlimited constitutional authority to refuse to defend laws on that basis.[2]

I do not believe that either of these categorical approaches is warranted.[3]  The former view insufficiently accounts for the fact that the Executive Branch, as a co-equal branch of government, has an independent duty to “interpret and implement the Constitution.”[4]  As Professor Dawn Johnsen has explained, “Congress and the President . . . are obligated to uphold, and thus by necessity to interpret, the Constitution, and the process of constitutional interpretation benefits from the thoughtful participation of the elected representatives of the people in the public dialogue about the meaning of the Constitution.”[5]

The Obama Administration’s Decisions to Enforce, but Not Defend, DOMA § 3

Robert J. Delahunty[*]

[download pdf]

On February 23, 2011, Attorney General Eric Holder advised Congress that the Department of Justice (DOJ) would no longer defend § 3 of the Defense of Marriage Act (DOMA)[1]—the Act of Congress that defines "marriage" for federal purposes as "a legal union between one man and one woman as husband and wife."[2]  The Attorney General stated: "[T]he President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional."[3]  The Attorney General noted that "there is substantial circuit court authority applying rational basis review to sexual-orientation classifications."[4]  Furthermore, he acknowledged that the DOJ previously defended § 3 in circuits that ultimately applied rational basis review to classifications by sexual orientation.[5]  Nonetheless, in two pending challenges to § 3 in the Second Circuit—which had not ruled on the controlling standard of review—the President instructed the DOJ not to defend the challenged section.  The Attorney General added:

Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.  To that end, the President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive's obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law's constitutionality.  This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.[6]

Obviously, the Obama Administration's decisions not to defend the constitutionality of DOMA—but at the same time, to enforce it—raise significant constitutional questions.

A Pro-Congress Approach to Arbitration and Unconscionability

Stephen E. Friedman[*]

Editor's Note: This Essay is a response to an argument made by Professor David Horton in David Horton, Unconscionability Wars, 106 Nw. U. L. Rev. Colloquy 13 (2011).

[download pdf]

Introduction

This Essay endeavors to resolve a current controversy involving the application of the unconscionability doctrine to arbitration agreements.  The pro-arbitration policies of the Federal Arbitration Act (FAA) and the anti-arbitration instincts of the unconscionability doctrine are difficult to reconcile.  Instead of clarity in this area of law, we have a series of hints and clues, often contradictory, from the Supreme Court.  Although Professor David Horton and I share a desire to clarify this area of the law, we have nearly opposite views about how this should be accomplished.  This Essay sets forth my position and also responds to Unconscionability Wars,[1] Professor Horton's latest thoughtful effort on the subject.

How Goliath Won: The Future Implications of Dukes v. Wal-Mart

Suzette Malveaux[*]

[download pdf]

Introduction

The Supreme Court recently killed one of the largest private-employer civil rights class actions in American history, Wal-Mart Stores, Inc. v. Dukes.[1]  After a decade of litigation, the case ended before it even began.  Former and current female employees brought a class action against Wal-Mart Stores, Inc. (Wal-Mart), on behalf of roughly 1.5 million women, alleging nationwide gender discrimination in violation of Title VII of the Civil Rights Act of 1964.[2]  The plaintiffs contended that Wal-Mart gives its local managers undue discretion when making pay and promotion decisions, resulting in women being underpaid and disproportionately denied promotions.  They argued that there is “a strong and uniform ‘corporate culture’” that permits gender stereotyping, and bias to taint, perhaps subconsciously, personnel decisions made throughout the company.[3]