Thursday, January 12, 2012

Yes, EEOC, There is a Ministerial Exception

The Supreme Court has just issued its opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In a 9-0 decision, the Supreme Court reversed the 6th Circuit and held that Cheryl Perich, a "called" teacher at the Hosanna-Tabor school, was a "minister" and thus her suit was barred under the so-called "ministerial exception" (which generally exempts religious organizations from anti-discrimination laws in employment decisions relating to persons who serve in a "ministerial" role). Though the ministerial exception had universal acceptance amongst the lower courts, this actually marked the first time the Supreme Court had officially ratified its existence.

The opinion itself (written by Chief Justice Roberts) is extremely, almost comically, narrow, refusing to go much beyond a determination that Ms. Perich was a "minister" for purpose of the exception, and thus that her suit was barred. It didn't give much, if any, of a standard for how to determine if a given person counts as a minister, and even was cagey over which sorts of suits are barred by the exception. Justice Thomas' concurrence was a little more concrete, saying that courts should simply defer to a religious body's good-faith determination regarding who was playing a ministerial role, and Justice Alito (joined by Justice Kagan) cautioned against relying too heavily on whether a person went through any formal ordination process (as many religions do not have such procedures).

Faithful readers may remember I gave a brief talk on this case as part of a panel at the law school. I am pleased to report that, like any self-respecting constitutional law professor, my prediction (an affirmance on narrow grounds) was completely off the mark.


troll_dc2 said...

Why is Chief Justice Roberts' narrow opinion "almost comical[]"? He decided the issues presented, and his ruling against the teacher made it unnecessary to hold anything else. So he left the unresolved issues for follow-up cases in which they have to be decided.

This common-law approach to constitutional adjudication is far better for everyone, since it increases the chances that the subsequent issues will get resolved correctly. The problem with issuing broad pontificatory rulings is that they tend to be based on assumptions that are not necessarily accurate; when this is realized, it is hard to change the result because it is already a part of constitutional law.

Yes, a broad ruling can be efficient in that it takes care of a lot of questions all at once and can cut litigation costs. But, essentially, a broad pronouncement would, if it had been issued here, amount to a partial advisory opinion.

David Schraub said...

In this case, where the underlying doctrine had been floating around the lower courts for decades but the SCOTUS had never issued guidance, I think everyone was expected something more than this. The opinion scarcely gave any guidance at all on how to determine whether a person is a "minister" -- there is thin gruel for lower courts to use in future cases. After all the hype over this case as finally at least starting to solve the riddle of the ministerial exception, it was amusing at how far the court went to avoid shining light on the subject.

troll_dc2 said...

This was not the case to do more. The Supremes had never adopted the basic ruling before (which they had not had to because there more or less had never been a circuit split before).

The Court has now told everyone that, yes, even Title VII, the ADA, and other decent-society statutes are limited by the Constitution. The importance of this ruling is probably more political than legal; it undercuts the right-wing argument that Obama and the radical left will seek to tell churches what to do (just as the Heller decision makes rational gun-control legislation more possible because it wiped away the induced fear that the government would try to ban guns altogether).

There are many issues remaining, including some that neither you nor I can anticipate. Let them be resolved when they have to be.