an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
In the Hosanna-Tabor case, the Supreme Court for the first time recognized a ministerial exception under the First Amendment, insulating church officials from lawsuits by (some of) their former employees. Different versions of the ministerial exception have existed in the circuit courts for many years, but now the Supreme Court has weighed in, in what seemed, at least at first glance, to be a rather uncompromising version of the doctrine. One of the curious features of the Supreme Court's version of the ministerial exception is that the rule is stated in absolute terms that eschew all attempts at balancing. Once an employee is characterized as a minister, then the religious body has an absolute right to fire them for any reason. Inquiries into pretext are dismissed. As the Court explains, "The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter `strictly ecclesiastical,'—is the church’s alone."
Note that in choosing this rule, the Court does not merely reject a balancing approach; it even rejects the strict scrutiny rule that applies when government restricts free speech or association, or that applied in its own free exercise cases before the Smith decision.
Such an absolute rule inevitably puts pressure on other aspects of the doctrine. The most obvious will be who counts as a "minister" for purposes of the ministerial exception. The more categorical the rule that exempts employment decisions from legal scrutiny, the narrower the class of "ministers" will have to be to avoid manifest injustices.
To be sure, the Court might eventually create a series of limited exceptions for cases in which the church attempts to use the power to fire to blackmail or silence an employee from disclosing misconduct by the church or its officials or other ministers. Whether or not this can be done in a predictable or principled way, it suggests another pressure point in the doctrine as announced.
That pressure point is the distinction between internal church decisions and outward action. To create a ministerial exception, which exempts churches from liability, the Court must distinguish Employment Division v. Smith, which held that there is no free exercise violation when states apply a rule of general applicability to religiously motivated conduct. Under Smith, one might think that there should be no ministerial exception at all.
The Court responds that "It is true that the ADA’s prohibition on retaliat[ory firing], like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself."
A categorical rule like the one announced in Hosanna-Tabor thus puts pressure on the distinction between purely internal church decisions, on the one hand, and what the Court calls "outward physical acts" that affect the world beyond the church. In the later case, the rule of Smith apparently still applies.
If a church fires an employee for whistleblowing, or threatens to fire them unless they engage in fraud, criminal conspiracy, or obstruction of justice, should we consider this an "outward physical act" that has external effects on the world, like smoking peyote? Or would imposing liability in these cases be tantamount to a doctrine of "pretext," a solution which the Court explicitly rejected in Hosanna-Tabor?
One way of resolving this problem is to say that criminal prosecutions against church officials may still proceed in such cases; but that employees may not sue for reinstatement, back pay, or damages. Nevertheless, if we grant that church officials can be held criminally culpable for blackmailing employees or for coercing their employees to obstruct justice or otherwise violate the law, there's a fairly strong argument that the ministerial exception should not apply, especially if what former employees are seeking is not reinstatement, but simply damages. After all, if the state may bring criminal charges, it is pretty clearly already interfering in church affairs.
The Court is not oblivious to these problems. Nevertheless, it dodges these questions in the current case, pointing out that there will be plenty of time to decide them in the future. And it will have years of prior experience in the circuit courts to work with in order to come up with manageable rules.
When it does so, however, the seemingly absolute rule of Hosanna-Tabor may prove less absolute that it currently appears, and the unanimity presented in this decision will likely give way as well. Posted
by JB [link]