Civil Procedure and the Ministerial Exception

41 Pages Posted: 30 Mar 2017 Last revised: 16 Mar 2018

See all articles by Peter J. Smith

Peter J. Smith

George Washington University - Law School

Robert W. Tuttle

George Washington University Law School

Date Written: 2017

Abstract

In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court recognized a ministerial exception to the ordinary rules of employer liability. The Court also concluded that the exception operates as an affirmative defense rather than a jurisdictional bar. This conclusion raises quite significant questions about how courts should address the exception in the course of litigation.

We argue that courts should approach these procedural questions in light of the underlying justification for the ministerial exception. The exception reflects a longstanding constitutional limitation on the competence of courts to resolve “strictly and purely ecclesiastical” questions. To conclude that the exception operates as an affirmative defense does not alter this fundamental limitation on the authority of secular courts.

As a practical matter, this means that in litigation between religious institutions and their employees, courts may be required to manage discovery to resolve threshold questions about the application of the ministerial exception before permitting broader discovery. Similarly, courts should consider permitting interlocutory appeals of trial court decisions that deny motions for summary judgment based on the exception. And courts not only should conclude that religious institutions do not waive the defense by failing to raise it, but also ought to raise it sua sponte when the facts indicate that the exception may apply. These departures from the ordinary treatment of affirmative defenses are necessary to respect the constitutional principles that the Court articulated in Hosanna-Tabor.

Keywords: Establishment Clause, Constitutional Law, Hosanna-Tabor v. EEOC, Ministerial Exception, Religious Freedom, First Amendment, Civil Procedure, Subject Matter Jurisdiction, Affirmative Defenses

Suggested Citation

Smith, Peter J. and Tuttle, Robert W., Civil Procedure and the Ministerial Exception (2017). 86 FORDHAM L. REV. 1848 (2018); GWU Law School Public Law Research Paper No. 2017-19; GWU Legal Studies Research Paper No. 2017-19. Available at SSRN: https://ssrn.com/abstract=2942277

Peter J. Smith

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4797 (Phone)

Robert W. Tuttle (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
55
rank
359,624
Abstract Views
372
PlumX Metrics