Act III of the Ministerial Exception
University of Alabama School of Law
September 27, 2011
Northwestern University Law Review, Forthcoming
U of Alabama Public Law Research Paper No. 1934433
On October 5, 2011, the Supreme Court will hear oral arguments in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case in which the Court will consider the existence and nature of the so-called "ministerial exception": the judicial doctrine that gives churches legal immunity in employment discrimination cases brought by "ministerial" employees. The case promises to be one of the more important church-state decisions in recent years. In conjunction with the second Annual Law and Religion Roundtable, the Northwestern University Law Review Colloquy will be publishing several pieces on the case.
In this contribution to the Colloquy, I argue strongly in favor of the ministerial exception, concluding that it is a necessary part of a principle fundamental not only to the Religion Clauses, but to the Western church-state settlement more broadly: that, in an important sense, church and state each represent separate distinct sovereigns or jurisdictions. Whatever else that settlement means, it requires at a minimum that the state cannot involve itself in questions related to the selection and status of church leaders or members.
I argue, however, that our focus on the question of power is inadequate. More important, perhaps, than the question whether the ministerial exception ought to exist is how we ought to behave if it does. Supporters of the ministerial exception – and I count myself among them – are morally obliged to give thought to how churches ought to behave toward their employees in cases in which those employees may be entitled to no legal remedy. I argue that the ministerial exception should be thought of as a responsibility or burden for churches, not just a license to act without legal consequence. Furthermore, where the law treats churches and other "First Amendment institutions" as entitled to a substantial degree of legal autonomy, we ought to think carefully about the role of both debate within the institution and public criticism of that institution in encouraging sound and responsible conduct by those actors. There are good reasons to champion the kind of institutional autonomy and pluralism represented by the ministerial exception, and to avoid thinking of the state as the font of all power and the solution to all problems; but taking that step requires us to think much more carefully about institutional responsibility, and about the civic duty of citizens to monitor and critique our key non-state institutions. Hosanna-Tabor should mark the beginning of an important conversation, not the end.
Number of Pages in PDF File: 23
Keywords: First Amendment, Establishment Clause, Free Exercise Clause, Hosanna-Tabor, Ministerial Exception, First Amendment Institutions
Date posted: September 29, 2011