30 Pages Posted: 10 Mar 2012
Date Written: February 24, 2012
In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC for the first time recognized the 'ministerial exemption' to federal employment discrimination laws, affirming the uniform position of the federal courts of appeals that the First Amendment prohibited claims for employment discrimination against religious organizations by ministerial employees. In a footnote, the Court also announced that the exemption reflects a First Amendment limit on the scope of substantive federal employment law and therefore defeats employment-discrimination claims on the merits; the exemption was not a limitation on the subject-matter jurisdiction of the federal courts. While that conclusion (which resolved a circuit split) was undoubtedly correct and welcome, the Court failed to explain or justify this result.
This Essay provides that missing analysis. The key is the distinction between prescriptive jurisdiction and adjudicative jurisdiction; the former is the power of Congress to enact legal rules and to regulate real-world conduct, while the latter is the power of federal courts to hear and resolve legal and factual issues in cases brought before them. The ministerial exemption arises from a First Amendment limit on prescriptive authority - on Congress' legislative power to enact legal rules that regulate certain real-world actors and conduct. And limitations on the scope of substantive law defeats claims brought under that substantive law on their merits, not for lack of adjudicative jurisdiction. Thus, with a proper understanding of the distinction between these two types of jurisdiction, the conclusion that the ministerial exemption is a merits doctrine becomes a straight-forward and fairly easy question. More important, proper understanding of the distinction also may guide lower-courts dealing with jurisdictionality questions in other substantive areas.
Keywords: Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, Americans with Disabilities Act (ADA), ministerial exemption, prescriptive jurisdiction, adjudicative jurisdiction, freedom of the church doctrine, church autonomy doctrine, church and state, separation, First Amendment
Suggested Citation: Suggested Citation
Wasserman, Howard M., Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exemption (February 24, 2012). University of Pennsylvania Law Review PENNumbra, Vol. 160; Florida International University Legal Studies Research Paper No. 12-02. Available at SSRN: https://ssrn.com/abstract=2012068