Tuesday, October 25, 2011

Post-Panel Recap

I spoke on a panel today. Myself and two other faculty members picked a case before the Supreme Court this term, and talked about it (background, analysis, predictions, etc.). I picked Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a fascinating case about the ministerial exception in the First Amendment.

Basically, the ministerial exception allows religious organizations more-or-less free rein in the hiring and firing of clergy -- particularly, as against anti-discrimination law. So, if a synagogue fires its Rabbi, and she alleges sex discrimination, that case is just thrown out irrespective of the facts. The rationale behind the exception is that the Free Exercise clause, if nothing else, requires that religious bodies be allowed to choose who serves as their own minister. The government in effect telling the synagogue "no, you have to hire/keep on this Rabbi to serve as your spiritual leader" is incompatible with First Amendment protections. And while one could make an argument that such logic cannot survive Employment Division of Oregon v. Smith (holding that the Free Exercise clause generally does not require religious exemptions from generally applicable laws), the ministerial exception appears to remain on steady footing.

There is a big caveat to the above, however: the ministerial exception has never been ratified by the Supreme Court. It is a creature of the federal appellate courts, and while every circuit now accepts its existence, until Hosanna-Tabor the Supreme Court never heard a case on the subject. The reason behind that isn't hard to see -- intuitive as the ministerial exception is in principle, it can be devilishly difficult to apply in practice. Who counts as a minister? How deep into the payroll does it extend?

Hosanna-Tabor deals with a teacher at a Christian school who, on the one hand, taught secular subjects and had an almost-exclusively secular job description, but on the other hand was considered a "called" teacher and a "commissioned minister" at the school and church, and did do some religious functions in addition to the school's intended mission as being infused with a spiritual mission from top to bottom. Should her ADA retaliation claim be barred on the exception? Saying yes means potentially excluding huge swaths of employees from the entire thrust of anti-discrimination law protections. Saying no means answering some exceptionally difficult line-drawing problems regarding who does count as a "minister", and risks entangling the court in religious doctrinal disputes that may be the key factual controversies in why a given employee was terminated.

The talk went quite well, though I continue to be unhappy at just how much my public speaking skills have degraded over the years. My fellows spoke on the warrantless GPS tracking case and the notorious fleeting expletives case (as a professor, one relishes the chance to use various swear words in an academically sanctioned setting in front of scores of students). So hopefully, a good time was had by all.

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