Religion and Race: The Ministerial Exception Reexamined

Ian Bartrum*

Editor's Note: This essay is the fifth 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.

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The ministerial exception has, at long last, arrived before the Supreme Court.  In Hosanna-Tabor, the Justices will finally consider the controversial doctrine that shields religious organizations from antidiscrimination suits brought by ministerial employees.[1]  In part because the exception guards a highly contested border between two fundamental constitutional values—equal protection and religious liberty—it has been the subject of significant discord among circuit courts.  Although lower federal courts have recognized and applied some version of the ministerial exception for almost forty years, they have diverged widely on its proper scope and substance.[2]  That is, courts have agreed neither on which jobs count as "ministerial," nor on the kinds of claims from which religious employers are "excepted."[3]  As this colloquy's other contributors make clear, Hosanna-Tabor seems better positioned to settle the former question than the latter.[4]  Nonetheless, I think the case's appearance on the Court's docket gives us occasion to revisit other controverted aspects of the ministerial exception, and that is my intention here.

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.

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.

Salazar v. Buono Symposium Podcasts

The following podcasts come from a four-part symposium held on October 15, 2010 at the John Marshall Law School.  Several professors met to discuss their articles featured in the Northwestern University Law Review Colloquy on the recent Supreme Court first amendment case, Salazar v. Buono.  All of these podcasts can be accessed below, or downloaded via iTunes or Windows Media by clicking here.

In the first podcast, Professor Lisa Shaw Roy explains why the Salazar case did not reach the truly interesting issue of whether the cross violated the Establishment Clause, but instead settled on procedural grounds.  To read Professor Roy’s original Colloquy article, click here.

 

In the second podcast, Professor Mary Jean Dolan analyzes the new “reasonable observer” portion of the (arguably) expanded endorsement test.  To read Professor Dolan’s original Colloquy article, click here.

 

In the third podcast, Professor Ian Bartrum discusses how the victory for religious groups may not really be a victory, since the endorsement test now looks to the secularization of religious symbols. To read Professor Bartrum’s original Colloquy article, click here.

 

In the final podcast, Professor Christopher Lund discusses how the government is forced in cases such as this to define religious symbols (like the cross), and thus threaten to expropriate the meaning of these symbols. To read Professor Lund’s original Colloquy article, click here.

 

Salazar v. Buono: The Perils of Piecemeal Adjudication

Lisa Shaw Roy[*]

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The recent U.S. Supreme Court decision in Salazar v. Buono,[1] a case involving a Latin cross placed on federal land in the Mojave Desert by the Veterans of Foreign Wars, approaches what many would assume to be the central issue in the case from an oblique.  Does the Mojave Desert cross, sitting atop Sunrise Peak in a federal park preserve, violate the Establishment Clause of the First Amendment?  Neither Justice Kennedy’s plurality opinion nor any of the concurring or dissenting opinions in Salazar answers that question.  Salazar’s complicated web of facts and procedural history precluded the Court from resolving the most compelling issue in the Salazar litigation.[2]  Instead, most of the opinions in Salazar circle the merits of the constitutionality of the Mojave Desert cross in language ostensibly directed at the remedy—the land transfer statute enacted to preserve the cross—but arguably aimed at the cross itself.  On a charitable view, the plurality, concurring, and dissenting opinions simply make the best of the facts and law given the tortured path of the case through the lower courts.  But it is not folly to speculate that a different path would have presented cleaner issues for decision and resolution, and would have given some closure to the litigants involved.  Perhaps most important, a decision on the merits of the constitutionality of the Mojave Desert cross could have clarified the trajectory of the Supreme Court’s Establishment Clause doctrine for future cases.[3]

Salazar v. Buono and the Future of the Establishment Clause

Christopher Lund[*]

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Commentators often complain that Establishment Clause jurisprudence is incoherent and unprincipled.  That accusation usually seems overwrought—perhaps we should not expect so much consistency from a Court that decides only the cases that come before it, holds multiple values, operates with continually changing personnel, and gives significant but unquantifiable weight to precedent.[1]  Yet of the areas of Establishment Clause litigation, this complaint carries the most force in the context of passive-display cases—cases where the government passively displays a religious symbol, like a cross or a crèche, a Ten Commandments monument, or an illuminated Bible.  Here the critics have a point.

Salazar v. Buono: The Cross Between Endorsement and History

Mary Jean Dolan[*]

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The striking image of a white cross on stark rock, silhouetted against the desert sky,[1] now symbolizes not only Christianity and, arguably, World War I military sacrifice, but also the equally dramatic, prolonged saga of the Salazar v. Buono litigation.  The photos invoke the most recent Supreme Court battle in the legal and cultural war to define religion’s role in the public square.  Competing approaches stress either preserving history or avoiding government endorsement of religion; this brief article analyzes a potential new synthesis suggested by Buono.

The original cross war memorial was erected in 1934 by a local group of WWI veterans in the Mojave Desert,[2] an isolated area of federally-owned land which, 60 years later, became a National Preserve.[3]  When Frank Buono brought an Establishment Clause suit over the display of the large cross on federal land, the district court held that it conveyed the appearance of a government endorsement of Christianity, and thus enjoined its display.[4]  While the decision was pending before the district court, and in the aftermath of 9/11, Congress designated the cross a National Memorial.[5]  Next, rather than remove the cross, while the first Ninth Circuit appeal was pending, Congress passed a land swap bill to transfer the underlying property to the Veterans of Foreign Wars (VFW), so long as the property continued to be used as a war memorial.[6]  The Ninth Circuit affirmed, without resolving the issue of whether the land transfer would itself be constitutional or cure the Establishment Clause violation.[7]  When Buono returned to the district court to stop the land transfer, that court found Congress’s strategy to be an invalid attempt to circumvent the 2002 injunction and permanently enjoined the land transfer (the “2005 injunction”).[8]  The Ninth Circuit again affirmed.[9]

Salazar v. Buono: Sacred Symbolism and the Secular State

Ian Bartrum[*]

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After oral argument, Salazar v. Buono looked like it might be a dud.  As Adam Liptak observed in the New York Times, the Justices spent most of their energy pressing then-Solicitor General Elena Kagan and her opponent, Peter Eliasberg of the ACLU, on the case’s tangled procedural history, and “only Justice Antonin Scalia appeared inclined to reach the Establishment Clause question” that gave rise to the legal controversy.[1]   But, in the intervening months, the case has gotten more and more interesting.  First, most members of the Court did—in at least some way—reach the substantive merits in the decision; ironically, only Justices Scalia and Clarence Thomas would have disposed of the case on standing grounds.  And second, in a twist no one saw coming, the Latin cross at the heart of the dispute disappeared just a few days after the Court announced its decision.[2]  As a result, a case that seemed doomed to founder on its awkward procedural posture has, at least fleetingly, brought the Establishment Clause back into the national spotlight.  Given the complexity of the procedural questions, however, it is probably worthwhile to revisit the case’s history before moving on to the more intriguing substantive questions the Court’s opinions present.