Tag Archives: Hosanna-Tabor

UK Supreme Court Decides Important Ministerial Employment Case

Posted on May 15, 2013 by | Leave a comment

Yesterday, the UK’s Supreme Court decided an important ministerial employment case, President of the Methodist Conference v. Preston. In many respects, Preston tracks the US Supreme Court’s recent ministerial exception case, Hosanna-Tabor, though the British case does not refer to Hosanna-Tabor and doesn’t explicitly address church autonomy concerns.

In Preston, a Methodist minister sought relief under UK employment law for unfair dismissal. The question turned on whether Preston was an “employee” for purposes of the law, which, in turn, depended on whether she worked for the church under a “contract of employment.”  By a 4-1 vote, the Supreme Court held that she did not.

In the past, Lord Sumption’s opinion explained, UK cases drew a bright line between clergy, who were understood to hold offices of an essentially spiritual nature, and mere employees. But these rulings depended on “social instincts” that do not obtain in today’s more “secular and regulated context.” Today, the question turns on the precise terms that govern a minister’s employment. In other words, the UK courts must apply what Americans would recognize as a “neutral principles of law” approach. Courts must look at the terms of a minister’s employment in light of the surrounding circumstances to see what the parties reasonably intended.

Here, Lord Sumption wrote, the context made plain that Methodist ministers like Preston are not contractual employees. Preston had no contract with the church; her employment was governed completely by the church’s constitution. Her ordination, conferred by the laying on of hands, was understood to be a lifelong covenant. Her stipend was not seen as consideration for her work, but as a subsidy to allow her to serve the Lord. In short, by its terms, ministry in the Methodist Church was “a vocation, by which candidates submit themselves to the discipline of the church for life.” No special circumstances in Preston’s case altered this conclusion.

In its insistence on looking to the particular circumstances of a plaintiff’s employment, Preston echoes the flexible approach to the definition of minister that one sees in Hosanna-Tabor. Unlike the American court, though, the British court didn’t much address the underlying church autonomy values that ministerial exceptions serve. In large part, this reticence results from the different texts the courts were construing. Preston is a straightforward statutory question without constitutional implications; Hosanna-Tabor, by contrast, depends on an understanding of the Free Exercise and Establishment Clauses of the First Amendment.

(H/t: Law & Religion UK).

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Posted in Commentary, Mark L. Movsesian

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Glickstein on the Ministerial Exception

Posted on April 3, 2013 by | Leave a comment

Jed Glickstein (Yale Law School) has posted Should the Ministerial Exception Apply to Functions, Not Persons? The abstract follows.

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court confirmed what the lower courts had been saying for some time: the First Amendment prohibits the application of the employment discrimination laws to the relationship between a church and its ministers. Despite Hosanna-Tabor’s significance, however, the so- called ministerial exception remains in flux. For one thing, it is still unclear who will be deemed a “minister” for purposes of the doctrine. The answer to that foundational question may be more complicated than it appears. Thus far, courts and commentators have assumed that ministerial status is binary; a given employee either is a minister (in which case the First Amendment completely bars her suit) or she is not (in which case her suit proceeds like any other). That way of thinking may make sense for the easy cases, but it fits uneasily with the wide range of positions that have been labeled ministerial by the lower courts. This Note accordingly suggests an alternative framework that more closely tracks the functional considerations that underlie the ministerial exception. In short, it argues that a revised exception — one that applies to ministerial functions, not ministerial persons — better strikes the balance between antidiscrimination values and religious liberty that the First Amendment requires.

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Posted in Dylan W. Sherwood, Scholarship Roundup

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Hurst on Hosanna-Tabor and Separationism

Posted on March 20, 2013 by | Leave a comment

Alan Hurst (BYU – J. Reuben Clark Law School) has posted Hosanna-Tabor and the Exaggerated Decline of Separationism. The abstract follows.

Scholars generally agree that the separation of church and state, as an approach to the Religion Clauses, has been in decline for decades. Yet the Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran School v. EEOC is strongly and unanimously separationist, and none of scholars’ explanations for separationism’s decline adequately explain Hosanna-Tabor.

I argue that previous scholarship fails to explain Hosanna-Tabor because it has been insufficiently attentive to what “separationism” means and the ways in which separationist approaches to the Religion Clauses can differ from each other. It has therefore failed to appreciate the ways in which the Supreme Court’s separationist principles have evolved rather than being repudiated, in particular the Court’s increased willingness to see free private choice as an adequate buffer between church and state and the Court’s increasingly narrow understanding of what counts as religion for separationist purposes.

These evolving aspects of the Court’s approach to separationism help make sense of Hosanna-Tabor, in which free private choice was not an issue and the church’s interests at stake were clearly part of the religious sphere. Further, they lead to a few predictions about the future of separationism and recommendations for pro-separationist scholars and activists.

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Posted in Dylan W. Sherwood, Scholarship Roundup

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Hatzis on Anti-Discrimination Law and Clergy in the U.K.

Posted on November 21, 2012 by | Leave a comment

Nicholas Hatzis (University of Oxford) has posted The Church-Clergy Relationship and Anti-Discrimination Law. The abstract follows.

Should antidiscrimination norms apply to the relationship between a religious group and its clergy? In Hosanna-Tabor Evangelical Lutheran Church v EEOC the US Supreme Court affirmed the existence of a “ministerial exception” which bars discrimination claims by ministers of religion against their church. In 2005 the House of Lords had reached the opposite conclusion, ruling, in Percy v Board of National Mission of the Church of Scotland, that the decision to dismiss an ordained minister was not a spiritual matter falling outside the scope of secular law. This article examines the constitutional foundations of the ministerial exception, argues that Percy ignored important aspects of church autonomy and suggests that courts should consider creating a narrowly tailored rule exempting decisions to appoint or remove clergy from the scope of anti-discrimination law.

 

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Posted in Dylan W. Sherwood, Scholarship Roundup

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Strasser on Hosanna-Tabor, the Ministerial Exception, and the Constitution

Posted on October 31, 2012 by | Leave a comment

Mark Strasser (Capital University Law School) has posted Making the Anomalous Even More Anomalous: On Hosanna-Tabor, the Ministerial Exception, and the Constitution. The abstract follows.

In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the lower courts and to greater inconsistency in the judgments issued when religious employees have allegedly been subjected to prohibited discriminatory practices. Further, by mischaracterizing the past jurisprudence, the Hosanna-Tabor Court has muddled what was previously fairly clear, and thus will not only have put a wide range of religious employees at risk but will have made the Religion Clauses jurisprudence more generally even less understandable.

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Posted in Dylan W. Sherwood, Scholarship Roundup

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Is Conservative Judaism a Cartel?

Posted on August 27, 2012 by | 3 Comments

CLR Forum reader John McGinnis points out an interesting article in the New York Times this weekend, about Duke Law Professor Barak Richman’s quest to have the courts declare Conservative Judaism’s rules for naming rabbis a violation of the Sherman Act. It’s not entirely clear from the Times article, but, as I understand it, synagogues that affiliate with Conservative Judaism must select rabbis from lists approved by the Rabbinical Assembly, a membership association of Conservative rabbis.  Richman believes this mechanism makes the Rabbinical Assembly an illegal “cartel” that “harms both the economic welfare and the religious interests of individual congregations.” He argues that the ministerial exception properly applies only to hierarchical religions and employers, not “congregational denominations,” like Conservative Judaism, in which individual congregations, not the central body, employ clergy. You can read his argument in an amicus brief he filed, along with several other antitrust scholars, in the Hosanna-Tabor case.

I don’t know whether this mechanism would violate the Sherman Act in a commercial setting. I’m confident the logic of the ministerial exception applies here, though. From what I can gather, Conservative Judaism is a hybrid polity, not hierarchical but not strictly congregational, either. Authority seems to be shared between the central body, the United Synagogue of Conservative Judaism, and local congregations. It hardly seems inappropriate to require local congregations that affiliate with the central body to choose clergy the central body approves; otherwise, the central body could lose control over the movement’s meaning and message. Although Professor Richman is correct that the rules impinge on individual congregations’ power to choose whomever they wish as clergy, that’s just a consequence of affiliating with the central body. If congregations want total freedom of choice, they can organize outside the Conservative movement and select whomever they wish.

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Posted in Commentary, Mark L. Movsesian

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DC Court of Appeals: Ministerial Exception Does Not Bar Minister’s Breach of Contract Suit Against Church

Posted on August 14, 2012 by | Leave a comment

Here’s a reminder that, even after Hosanna-Tabor, the ministerial exception does not bar all lawsuits clergy bring against church employers. The DC Court of Appeals has allowed a minister’s breach of contract claim against her former congregation to go forward, notwithstanding the congregation’s claim of immunity. The Rev. Deloris Prioleau, an ordained AME pastor, had a series of one-year employment contracts with the Cornerstone AME Church in DC. When Cornerstone failed to pay Prioleau $39,000 it owed her on her final contract, she brought a breach of contract action. Last week, the DC Court of Appeals ruled that the action could proceed under the “neutral principles of law” approach. Prioleau’s suit, the court said, appeared to be “a straightforward contract case, uncomplicated by ecclesiastical considerations.” Moreover, the ministerial exception did not apply. Prioleau had not challenged Cornerstone’s “authority to hire, to fire, or to assign her duties” and did not seek “reinstatement.” (Oddly, the court did not discuss Hosanna-Tabor itself). The court ended its opinion with a warning, however:  ”if it becomes apparent … that this dispute does in fact turn on matters of doctrinal interpretation or of church governance, the trial court may grant summary judgment to avoid ‘excessive entanglement with religion.’” The case is Second Episcopal District African Methodist Episcopal Church v. Prioleau, 2012 WL 3243190 (D.C. Court of Appeals, Aug. 9, 2012).

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Posted in Commentary, Mark L. Movsesian

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Bartrum on The Ministerial Exception and the Limits of Religious Sovereignty

Posted on July 30, 2012 by | Leave a comment

Ian C. Bartrum (U. of Nevada, Las Vegas, William S. Boyd School of Law) has posted The Ministerial Exception and the Limits of Religious Sovereignty. The abstract follows.

In January, the Supreme Court announced its decision in Hosanna Tabor v. EEOC and gave its official blessing to the controversial bit of doctrine known as the “ministerial exception.” The exception, which has been alive in the Circuit Courts for nearly forty years, exempts religious organizations from employment discrimination laws in the context of “ministerial” hiring decisions. Thus, such organizations are free to discriminate against ministerial employees not only on the basis of religion—which various statutory exemptions already permit—but also on the basis of race, gender, sexual orientation, and disability. Several thoughtful and well-­‐respected voices have suggested that this effectively places churches “above the law,” and in some sense these criticisms seem to ring true. The constitutional justification often offered for this state of affairs, however, is that churches are not so much above the civil law, as simply outside of its jurisdiction. That is, while we may disapprove of the ways that a church selects its leadership—indeed, we may even believe that certain hiring practices are illegal—our constitutional structure simply does not empower the government to intervene in matters of church governance. And we have structured our Constitution in this way based, in large part, on the liberal Lockean conviction that church and state operate within separate and incommensurable spheres.

Carried to its logical extreme, however, this conception of separate and independent religious sovereignty suggests that the bar to governmental intervention in church governance is absolute; that a church can do anything—including, presumably, perform sacrificial rituals—that its members believe essential to basic governance decisions. In truth, however, no one I know of holds this sort of extreme, absolutist view, and thus arises the theoretical puzzle this essay addresses. If religious sovereignty is not absolute—if the liberal check on the state’s power to invade church jurisdiction does not go “all the way down”—then where do the limits on that sovereignty lie, and how do we determine that a church has exceeded them? In what follows, I draw some lessons from Thomas Kuhn’s thoughts about the shared grounds on which scientists justify their choices between incommensurable theoretical paradigms. Ultimately, I conclude that we can and do make decisions about the scope of religious sovereignty by balancing constitutional purposes against one another in making what Kuhn called “value judgments.” In the case of the ministerial exception, it is my constitutional value judgment that racial discrimination both exceeds the limits of independent religious sovereignty, and justifies state intervention in church governance.

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Posted in Andrew R. Hamilton, Scholarship Roundup

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Corbin on The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

Posted on July 30, 2012 by | Leave a comment

Caroline Mala Corbin (U. of Miami School of Law) has posted The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Although Corbin addressed this issue last year, this updated article includes Corbin’s reflections post-decision. The abstract follows.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost. In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have.

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Posted in Andrew R. Hamilton, Scholarship Roundup

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Waters on Hosanna-Tabor’s Potential Impact on Reproductive Rights

Posted on July 11, 2012 by | Leave a comment

Jessica L. Waters (American University School of Public Affairs) has posted Testing Hosanna-Tabor: The Implications for Pregnancy Discrimination Claims and Employees’ Reproductive Rights. The abstract follows.

In April 2009 Jaretta Hamilton, a married elementary school teacher, was fired after her employer school learned that Hamilton became pregnant prior to her wedding. In October 2010 Christa Dias, an unmarried technology coordinator for two schools, was fired after her employer learned Dias was pregnant via artificial insemination. In 2011, Emily Herx, a married Language Arts teacher who was struggling with infertility, was fired after the school where she had been teaching for seven years learned that Herx was undergoing in vitro fertilization treatments. In the fall of 2011, Cathy Samford, an engaged middle school science teacher and volleyball coach, was fired after her employer discovered Samford’s pregnancy.

Can the employer schools of these four women legally fire them for attempting to become pregnant or actually becoming pregnant? Because the schools in question are religiously-affiliated schools, in the wake of Hosanna-Tabor Evangelical Lutheran Church v. EEOC the answer may be yes.
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Posted in Jordan Hummel, Scholarship Roundup

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