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.

Religious Freedom, Church–State Separation, and the Ministerial Exception

Thomas C. Berg*; Kimberlee Wood Colby**; Carl H. Esbeck***; Richard W. Garnett****

Editor's Note: This essay is the fourth 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]

Hosanna-Tabor[1] concerns the separation of church and state, which is an often-misunderstood arrangement that is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution.  For nearly a thousand years, the tradition of Western constitutionalism—the project of protecting political freedom by marking boundaries to the power of government—has been strengthened by the principled commitment to religious liberty and church–state separation.  A community that respects both the importance of, and the distinction between, independent spheres of political and religious authority is one in which the fundamental rights of all are more secure.  A government that acknowledges this distinction acknowledges limits to its own reach.  Such a government, history shows, will more consistently protect and vindicate the liberties of both individuals and institutions.

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.

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.

The Legacy of Justice Stevens

On May 12th, Northwestern University and the Northwestern University Law Review held a symposium celebrating the legacy of Justice John Paul Stevens (JD '47).  A number of leading scholars and court watchers gathered to participate in the event, as did the Justice himself.  The participants covered many different aspects of the Justice's life and legacy throughout the day.

Do Violent Video Games Harm Children? Comparing the Scientific Amicus Curiae “Experts” in Brown v. Entertainment Merchants Association

Deana Pollard Sacks[*], Brad J. Bushman[**], and Craig A. Anderson[***]

Introduction

In Brown v. Entertainment Merchants Ass’n,[1]  video game merchants present a First Amendment challenge to a California law regulating sales of certain violent video games to children less than eighteen years of age.[2]   A primary issue presented to the Supreme Court is whether California’s interest in protecting children from serious psychological or neurological harm is sufficiently compelling to overcome First Amendment scrutiny.  This Essay briefly summarizes the California law and the Ninth Circuit’s opinion,[3]  which held that the law violates the First Amendment and questioned the strength of the scientific evidence used to support the claim of harm to minors.  This Essay then compares amicus curiae scientific experts on both sides of the case and presents an original quantitative analysis of the experts’ relevant expertise in the psychological effects of violence and media effects based on the briefs’ authors’ and signatories' published scholarship.  This Essay concludes that if the Supreme Court relies on scientific evidence and expert opinion to reach its decision, it should consider the source of the evidence in deciding what weight the amicus curiae briefs deserve.

So How Did We Get Into This Mess? Observations on the Legitimacy of Citizens United

Alexander Polikoff[*]

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How did the American body politic allow business corporations to threaten members of Congress by saying, credibly, “Do what we want or we’ll bury you!”?

On January 21, 2010, the Supreme Court’s 5-4 decision in Citizens United v. Federal Election Commission interpreted the U.S. Constitution’s First Amendment to permit corporations to spend unlimited amounts of money to support or oppose their chosen candidates.[1]  "[A] lobbyist," said the front page of the next day’s New York Times, "can now tell any elected official that [if you vote wrong,] my company, labor union or interest group will spend unlimited sums explicitly advertising against your re-election."[2]  The headline read, "Lobbies’ New Power: Cross Us, And Our Cash Will Bury You."[3]

Pleasant Grove City v. Summum: Monuments, Messages, and the Next Establishment Clause

Lisa Shaw Roy[*]

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  Introduction

The facts of Pleasant Grove City v. Summum[1] are well known by now: Summum, a small religious group, argued that Pleasant Grove City violated the Free Speech Clause of the First Amendment when it refused to display Summum’s monument in the city’s Pioneer Park, which already contained fifteen other monuments, including a Ten Commandments display.  Summum’s unlikely claim won in the Tenth Circuit Court of Appeals, a request for rehearing was denied, and the case ultimately was heard before the U.S. Supreme Court.  During the oral arguments, the Justices (along with commentators, Court watchers, and, of course, the litigants themselves) were fully aware that the Summum litigation presented a double-edged sword.  If Pleasant Grove argued too vigorously the theory that the existing Ten Commandments monument constitutes the city’s own message, then it risked violating the Establishment Clause in a follow-up lawsuit based on the same facts.  If, on the other hand, Pleasant Grove attributed the monument’s message to its 1971 donor,[2] then the city would be hard-pressed to explain why Pioneer Park was not, as Summum claimed, a public forum that must be potentially open to all monuments without discrimination based on content or viewpoint.

The tension pervaded the oral argument.  Chief Justice Roberts opened the discussion with an observation that the city was in a double-bind.[3]  Justice Scalia guided the city’s lawyer into a discussion of Van Orden v. Perry,[4] a 2005 case in which the Court upheld the constitutionality of a public Ten Commandments display.[5]  Justice Souter pondered the possibility of discrimination.[6]  And Summum’s lawyer frankly acknowledged that the city was “on the horns of a dilemma” facing either a Free Speech or an Establishment Clause violation.[7]  Ultimately, however, the U.S. Supreme Court unanimously decided that in selecting monuments for Pioneer Park the city was engaged in government speech; the city could therefore control the content of its message without violating the Free Speech Clause.[8]  Significantly, the Court found that the city need not formally adopt the message of an existing park monument in order for that monument to constitute government speech.[9]  The stage was set for Summum’s Establishment Clause claim, but that claim would have to wait for another day.

Seeing It, Knowing It

Elizabeth M. Glazer[*]

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I.  Introduction

In When Obscenity Discriminates,[1] I argued that the First Amendment’s obscenity doctrine[2] has generated discriminatory collateral effects against gays and lesbians, and that those collateral effects generate a need to refine the obscenity doctrine in light of the Supreme Court’s decision in Lawrence v. Texas.[3]  In his response, If Obscenity Were to Discriminate, Professor Barry McDonald agrees with my essay’s “core insight—that the Miller obscenity test should be applied in a manner that is neutral as to the sexual orientation of the pertinent actors,”[4] and notes that this insight “appears to have substantial support in basic principles of the Court’s equal protection and First Amendment jurisprudence.”[5]  McDonald builds from that “core insight” by “tak[ing] the liberty of recasting these arguments as more modest claims that the obscenity doctrine needs to be modified in light of Lawrence in order to achieve a principled and coherent constitutional jurisprudence as it relates to the Court’s treatment of gay sex.”[6]  However, the “more modest claim[]” that McDonald purports to make is, in fact, the claim made in my essay, namely, to “refin[e]—but not overturn[]—the obscenity test set forth in Miller”[7] so that it distinguishes between sex and sexual orientation.

Thus, despite Professor McDonald’s perception to the contrary, he and I are in closer agreement about the doctrine’s needed changes.  On some points, however, we do divide, and our division derives from two sources.  First, and most fundamentally, we disagree about how to measure doctrinal effect.  Although McDonald and I agree that the obscenity doctrine should not be applied in a way that is biased toward homosexual content, he and I part ways on the issue of determining when to measure the effects of a biased obscenity test.  For McDonald, unless and until the obscenity test is applied in a court of law in a biased manner—that is, unless and until a work which would not constitute obscenity but for its homosexual content is held to be unprotected—the obscenity test has not generated any discriminatory effect.[8]  This source of disagreement is fundamental because it divides McDonald and me on the question of implementation and, ultimately, on whether the obscenity doctrine merits refinement.  To McDonald, the obscenity doctrine is fine as is unless and until it is misapplied in court; I believe, on the other hand, that the doctrine’s discriminatory effects are inherent to the test used and thus the doctrine merits refinement even absent “misapplication” in court.  Part II of this Reply responds to McDonald’s objections that derive from our disagreement on measuring doctrinal effect.