Tag Archives: Ministerial Exception

Can a Church Refuse to Sell Property Because of a Buyer’s Religion?

Here’s a bleg for you law and religion fans. Rod Dreher had an interesting post last week about the continuing division in the Episcopal Church over doctrinal issues. Several parishes, and even a few dioceses, if I’m not mistaken, have sought to leave the Episcopal Church because of the church’s liberal stand on issues like homosexuality. These parishes typically affiliate with Anglican bishops who remain committed to traditional doctrine.

Often, the departing congregations wish to maintain control of church property. Because of the way the relevant deeds and other legal documents are written, though, and because of the church autonomy principle, the congregations typically lose. Rod reports that the Episcopal Church has spent about $26 million litigating all the cases–an astounding figure, when you think about it.

All this is straightforward, legally speaking. But Rod’s post raises an issue I hadn’t thought about. When a departing parish in Binghamton, New York, sought to purchase its church building for $150,000, the Episcopal Church refused to sell. Apparently, the Church’s presiding bishop, Katharine Jefferts Schori, has adopted a policy of refusing to sell church property to any group that intends to affiliate with an Anglican bishop. The Episcopal Church has sold off property to Baptists, Methodists, Jews, and Muslims, but not Anglicans. In the Binghamton case, the Church eventually sold the property to a mosque which paid only $50,000 for it–one-third what the departing congregation had offered to pay.

So, here’s the question. Is it legal for a church to refuse to sell church property solely because of the buyer’s religion? You’d think there would be an easy answer, but I haven’t been able to find one. The federal civil rights laws prohibit religious discrimination in residential sales, but that wouldn’t apply to church buildings. Some state civil rights laws apply to commercial property, but there are exemptions for religious groups–and anyway, these cases don’t involve commercial property, either. In the federal employment anti-discrimination laws, a specific exception exists for religious bodies that discriminate on the basis of religion, and a couple of years ago, in the Hosanna-Tabor case, the Supreme Court held that the Constitution allows religious bodies to discriminate with respect to the employment of ministers. Would there be an analogous carve-out from non-discrimination principles for churches that do not wish to sell their sanctuaries to religious rivals? Any ideas?

Conversations: Marc DeGirolami

This summer, Harvard University Press published The Tragedy of Religious Freedomby our very own Marc DeGirolami (left), CLR’s Associate Director. In the book, Marc argues for a “tragic” understanding of religious freedom, one “that avoids the twin dangers of reliance on reductive and systematic justifications, on the one hand, and thoroughgoing skepticism about the possibility of theorizing, on the other.” This week, Marc answers some questions about his book. Among other things, he discusses the differences between “tragic” and “comic” legal theories; the value of history and tradition in judicial decision-making; and the inevitability of judicial discretion. He also explains why the Court got religious freedom wrong in Employment Division v. Smith and right in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. 

CLR Forum: Marc, explain what you mean by “comic” and “tragic” approaches to law generally. Why do you think religious freedom, in particular, should be addressed from a tragic perspective?

DeGirolami: The terms comic and tragic are ancient and have been used in classical, literary, and philosophical settings. I draw on some of these meanings in the book, but I use comic in the legal context to mean two things: (1) a preference for systematic ordering of the law by reducing legal values either to one or to a small set, in the belief that human society is progressively improved by that reduction; and (2) the marginalization of the loss of other values in the process of accomplishing (1). Tragic approaches to the law resist both of these points. A tragic approach to law says that the reasons we value a practice like religious freedom are plural and cannot be reduced. Each value struggles to avoid absorption and subordination by the others. The clash of values results both from the limits of human reasoning and from the conflict of human interests and aspirations. So in the face of conflict in law, a tragic approach affirms that the comic impulse to reduce legal values, and systematically to marginalize those that are subordinated, will exacerbate conflict and end up deforming, and perhaps eventually destroying, important social practices and institutions.

CLR Forum: You single out Employment Division v. Smith, Justice Scalia’s famous opinion in the peyote case, as an example of the misguided “comic” approach and argue that it should be gradually dismantled. What’s so wrong with Smith? And why not just overrule it? 

DeGirolami: Yes, I am critical of Smith and believe it to be an example of a comic approach. Smith reduced all possible values of free exercise under the Constitution to a single value: formal neutrality. A neutral rule that is applied generally no longer can violate the Free Exercise Clause of the Constitution after Smith, no matter how severely the rule burdens the religious free exercise of an individual or a group and no matter how insubstantial the government’s interest in enforcing the rule on a religious claimant. The Smith decision attempted to accomplish both of the comic points I listed above. It wanted to bring system Continue reading

UK Supreme Court Decides Important Ministerial Employment Case

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).

Glickstein on the Ministerial Exception

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.

New York Court Dismisses Breach of Contract Suit Under Ministerial Exception

In New York’s first application (and extension) of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a state court has dismissed a wrongful termination law suit filed by an ordained minister of the United States Methodist Church and a former employee of the General Commission on Christian Unity and Interreligious Concerns (GCCUIC), an arm of the Church devoted to ecumenical work.  The Book of Discipline of the Methodist Church set out the plaintiff’s job responsibilities, which included interfaith dialogue as well as proselytism.  It also stated that those in the plaintiff’s position:

shall be persons who model themselves after the servanthood of Jesus Christ. They shall be persons of genuine Christian character who love the Church and are committed to the oneness of the body of Christ, are morally disciplined and shall uphold the doctrinal and ethical standards of The United Methodist Church as set forth in the Doctrinal Standards and Social Principles, and are competent to administer the affairs of a general agency[.]

The plaintiff was fired, it seems, after a falling out with his superior.  He claimed that he was wrongfully terminated and that Hosanna-Tabor did not apply because his job was secular.  Though the court recognized that Hosanna-Tabor did not extend to breach of contract or tort actions, it disagreed.  Here is a good chunk of the court’s thorough analysis, which engages in very much the sort of particularist methodology laid out in Hosanna-Tabor as necessary to understand the nature of the employee’s position:

Unlike Hosanna-Tabor, it is undisputed that Mills is an ordained minister. He has several years of religious education and held ministerial positions before and after his employment with the GCCUIC. Pursuant to Hosanna-Tabor, the fact of his ordination is relevant to this inquiry. Nonetheless, Mills argues that the ministerial exception does not apply because his job duties with the GCCUIC were wholly secular. For the following reasons, this Court disagrees.

In Hosanna-Tabor, the Court noted it was relevant that “significant religious training and a recognized religious mission underlie the description of the employee’s position” (id. at 708). The GCCUIC required candidates for the Associate General Secretary position be “persons who model themselves after the servanthood of Jesus Christ” with a masters level education in theology, experience with ecumenism and interfaith relations, and “[t]heological acumen.” Therefore, it is evident that the position requires “significant religious training.”

As to whether “a recognized religious mission underlie[s] the description of the employee’s position,” the record indicates that the focus of the Associate General Secretary position is to “promote and further theological dialogue with other Christian Communications and interfaith partners” and to promote the purposes of the GCCUIC. Mills characterizes the purposes of the GCCUIC as “to advocate and work toward the full reception of the gift of Christian unity and to strengthen relationships with other living faith [sic] and to dialogue with persons of other faiths, cultures and ideologies” (Opp. Mem. at 2-3).2 Despite Mills’ arguments to the contrary, these are clearly religious purposes and a “recognized religious mission” underlies his job description.

Similar to the manner in which Hosanna-Tabor “held Perich out” as a minister, the GCCUIC held Mills out as a minister by classifying him as a ministerial employee and designating him as a clergyperson assigned to an “extension ministry.” Mills held himself out as a minister by claiming the housing tax exemption and presenting himself as a minister while conducting official GCCUIC business, and by wearing his collar and ministerial attire during business travel.

Pursuant to Hosanna-Tabor, even if Mills performed primarily secular duties, the ministerial exception will apply if his job duties “reflected a role in conveying the Church’s message and carrying out its mission.” The record indicates that Mills acted as a representative of the GCCUIC and The Methodist Church by participating in ecumenical dialogues with a variety of interfaith organizations and ministries where he “articulat[ed],” communicated, and interpreted the “perspectives positions, traditions” and the history of The United Methodist Church. During the course of his employment, he also wrote and published a variety of ecumenical writings and presentations which he touted as professional accomplishments in at least one performance review with the GCCUIC. On at least one occasion, he performed ministerial duties when he “preach[ed] during the Week of Prayer for Christian Unity.” Given all of these factors, it is clear that Mills had a role in conveying the Church’s message and carrying out its mission.”

Furthermore, adjudication of Mills’ claims would require this Court to interpret various sections of the Book of Discipline, a constitutionally questionable endeavor at best, given the religious nature of the text. Specifically, this Court would be obliged to examine Mills’ behavior and determine whether his termination was justified under paragraph 711 of the Book of Discipline which enumerates reasons that an Associate General Secretary may be terminated. Because New York law does not have legal standards for “immoral conduct” or “breach of trust,” there is no basis in law for this Court to determine whether Mills violated these provisions.

The case is Mills v. Standing General Commission on Christian Unity (No. 601640/2009, Jan. 29, 2013).

Sunday Forum at Grace Church

For any readers who are local and free on Sunday morning: I will be giving an informal talk at Grace Church in the Village.  Here is the church’s description:

“Do religious organizations have special constitutional protection from government regulation? Professor Tebbe will explain and lead discussion on recent Supreme Court rulings on employment discrimination and challenges to the Affordable Care Act.”

http://gracechurchnyc.org/2012/12/03/dec-9-the-sunday-forum-10-am-the-church-and-state-series-continues/

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

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.

 

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

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.

Thanks to Barak Richman and Dan Crane

Thanks to Barak Richman and Dan Crane for participating in our first online debate at CLR Forum, “Are Conservative Rabbis a Cartel?” You can follow the posts by scrolling to the “Debates” category over on the right. We’re very grateful for the thoughtful and fun exchange. Come back soon!

Establishment Clause Creep and Antitrust Creep

This will be the end of the line for the back-and-forth between Barak and me, so let me thank Barak for his very thoughtful and cordial correspondence on these interesting questions.  This is not a moment to say “see you in court,” but to hope that our dialogue has furthered our respective understanding of the issues.

In earlier posts, I hinted that application of the antitrust laws to rabbinical or pastoral hiring practices would run afoul of the Establishment Clause, particularly in light of the Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church, which recognized a “ministerial exception” to the application of antidiscrimination law to the hiring of religious ministers.  In my view, a fair reading of Hosanna-Tabor would prevent an antitrust suit involving rabbinical hiring.  However, for purposes of this post, I would like to respond more generally to Barak’s claim that “entanglement” concerns lead to “Establishment Clause creep,” insulating from legal review the harmful decisions of religious organizations.

Barak’s concerns over “creep” fall into two categories.  One concerns the externalization of costs from religious organizations to others–his example of people cutting across the neighbor’s lawn to get to church.  This is an easy case for me, because religious organizations should not be allowed to justify externalizing costs onto others in the name of religious independence.   Of course,  one could argue that all purely private activities end up externalizing costs or benefits onto others (i.e., functional families make for happy neighborhoods, dysfunctional ones for unhappy neighborhoods), but I’m confident that sensible lines can be drawn between what is mostly internal and what is significantly external.

What about cases where the harms, if any, are all or mostly internalized within the religious organization or by its members?   Consider two examples:  ritualistic human sacrifice of willing victims and regulations applied to require churches to install wheelchair ramps.  In neither of these cases is the Establishment Clause or free exercise defense plausible.   In the human sacrifice case, the act is  morally abhorrent and the legal prohibition clear.  Any ostensible free exercise interest is outweighed by the state’s legitimate interest in preserving human life and there is no danger of entanglement.  In the wheelchair ramp case, the legal requirement concerns a physical structure far enough removed from the purposes and values of the religious organization that there is little risk that enforcing the building code would require civil authorities to inquire into the existential purposes of the church and their relationship to the civil law.

Not so for antitrust law (and perhaps other business torts as well).  Antitrust is not justified on the grounds that collaboration among rivals is inherently immoral or  injurious.  Rather, it is justified on instrumental grounds–that competition among business firms tends to increase output and decrease prices to the benefit of consumers.  As I said in earlier posts, it’s awkward to apply this assumption wholesale to religious organizations, since many such organizations would resist the idea that they are ordinary economic actors or exist in order to achieve a better deployment of society’s scarce social resources.  And most religious groups would strongly deny that they would function better if they fostered internal economic rivalry.

For example, for mendicant orders like the Franciscans, the “employees” are bound to an oath of poverty.   They are expressly prohibited from being Chicago School “rational profit-maximizers.”  If the Franciscan order put in place rules to prevent local parishes from trying to attract Franciscan monks through promises of higher compensation, that would run counter to the Sherman Act’s assumption that economic rivalry results in an optimal allocation of resources.  But I’m doubtful that the Sherman Act’s assumption generally holds in the religious organization context.  And, even if it sometimes might hold, it would be  troubling to ask courts to sift through the evidence on different religious organizations to determine when it does hold and when it doesn’t–when the existential purposes of a particular sect would be furthered by greater economic rivalry and when they would not.  That, in my view, would raise serious entanglement problems.  Do we want courts deciding what degree of poverty is appropriate for Franciscan monks?

[I’m amending my post from last night to add a further anecdote from the Christian tradition that illustrates the problem.  In the gospel accounts, when Jesus enters the temple he finds merchants engaging in commerce and drives them out with a whip, saying that God’s house should be one of prayer, not of thievery.  Many churches today are reluctant even to sell sermon tapes or Christian books in the church foyer because of this and similar admonitions.  That this is a concern in the Christian tradition does not make it universally a concern, but it does suggest an entanglement problem if courts were to undertake an inquiry into when commercial transactions are permissible, and when not, within a particular religious tradition.]

In short, I’m less concerned about Establishment Clause creep than about antitrust creep.  Economic rivalry is good sometimes, but not always.  Unlike Barak, I wouldn’t start with the assumption that antitrust law should apply universally to all human endeavor unless a special exception is warranted.  I would start with the assumption that antitrust should apply to business and commerce and only extend it to other endeavors if the case for extension were clear and unencumbered by competing religious, social, or moral values.  As to rabbinical collusion, I’m not persuaded that case has been made.