The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I am happy to publish this guest post from Professor James Phillips, who will start at Chapman University this fall. James was counsel on an amicus brief in Our Lady Of Guadalupe on behalf of several religious groups.
Monday witnessed oral arguments in two consolidated cases involving the Ministerial Exception: the doctrine independently born of both the Establishment and Free Exercise Clauses that prohibits government interference in the selection, retention, and control of religious organizations ministers. And the back-and-forth between the Justices and the attorneys exposed three interconnected fallacies that appears to be driving much of the conversation in the cases. Laying bear these fallacies shows how one naturally leads to the other and ultimately to a fundamental misunderstanding of the constitutional protections afforded by the Religion Clauses. Correcting these errors points in a different direction than much of the discussion during oral argument—toward a test focused on the views and directives of the religious organizations regarding their "ministers" rather than the minutia of employees' actions.
The "Ministerial" Exception Misnomer
The first error is the very name of the doctrine itself. Legal names have consequences. While a rose by another other name may smell the same, the name we give doctrines or constitutional clauses colors the perception of the underlying law. This is what psychologists label "framing effects." As Donald Kochan has pointed out, imagine how differently we would perceive the "Takings" Clause if we called it "The Keepings Clause"? Or how might our views of the "Free Speech" and "Free Press" clauses be significantly altered if instead we referred to them as the "Censorship Clauses"? Names matter in the law.
Justice Alito hinted at this in the oral argument yesterday, though his concern with the name "Ministerial" Exception stems from its potential discriminatory effect: "I would be more comfortable if we jettisoned the whole term 'ministerial exception' because I do think it's discriminatory . . . ." OA Transcript, at 73:1-4 (Alito, J, speaking). That concern is well-placed since Catholics, Jews, Muslims, and Hindus, for example, do not have "ministers," a term that is Protestant in its origins.
But while well-placed, it does not go far enough. There is a bigger problem with the doctrine's name than discrimination—the constitutional protection afforded by the exception does not flow to the "ministers" themselves, but to the religious organizations that employ them. Thus, the name diverts the constitutional focus from the very actor that is protected to the actor that is not. And as that next section shows, that can have a distorting effect on the doctrine. Rather than the "Ministerial" Exception, the doctrine should be labeled the "Religious Organizations Exception." That would not only avoid the discriminatory nature of the label that Justice Alito worried about, but keep the focus on the object of the constitutional protection.
The Wrong Actor Error
With the misnamed exception focusing on "ministers," it is perhaps not surprising that most of the Justices and attorneys alike repeatedly focused on the actions of ministers to determine whether the constitutional protection was triggered. For instance, Justice Thomas floated the hypothetical of a "chemistry teacher who's a nun who starts class with—chemistry class with the Hail Mary, or the lay teacher who teaches religion but does it in a very straightforward, objective way." OA Transcript, at 31:9-13 (Thomas, J., speaking). In response to a hypothetical situation of a math teacher at a Jewish school, petitioners' counsel responded that whether such was covered by the exception "really depends on how that cashes out in actual practice." OA Transcript, at 19:25-20:4. And respondents' counsel perhaps fell into this trap the most explicitly when he argued that "the real issue in front of the Court" is
not whom the religion considers to be its ministers or even whom the religion considers to be performing its most important religious functions. It's who among employees of religious employers are performing such—such vital duties to the establishment of the church that any qualification requirements or any legal enforcement having to do with their rights or—or qualifications would necessarily run afoul of the Establishment Clause?
OA Transcript, at 89:1-12 (Fisher, Mr., speaking).
But this gets the analysis backwards. Looking only to the actions of an alleged "minister" rather than the views and directives of a religious organization lets the tail wag the constitutional dog. If a "minister" fails in her duties it should not deprive the religious organization of its constitutional protection. Otherwise the law creates a perverse incentive for employees to sabotage the constitutional exception by secularizing their job performance so that the exception is not triggered. Rather, the focus should actually be on "whom the religion considers to be performing its most important religious functions." Justice Gorsuch understood this, as reflected in his questions about deference to religious organizations' own sincerely held religious views as to which of their employees were ministers. See OA Transcript, 45:23-48:14; 90:16-24. Though even that position may not go as far as the Constitution requires.
That is because the Religious Organizations Exception is simply part of the broader constitutional protection frequently called the Church Autonomy Doctrine. That doctrine forbids the government from interfering in the internal affairs of religious organizations. And interfering in such organizations' selection, retention, or control of their ministers is just one manifestation of that constitutional prohibition. In other words, the Exception cannot be construed in a way that violates the broader doctrine of which it is a part.
Thus, for instance, it would violate the Constitution to tell a religious organization who it could or could not hire or fire for an employment position that may seem secular to a judge, but that is nevertheless crucial to that organization fulfilling its religious mission. Take the head of a religious organization's accounting department who is charged with overseeing the collection and use of an entity's sacred tithing funds according to approved religious practices and doctrines. To some that employee may not seem to be carrying out a "religious" function, but the function may still be important to the religious mission of that organization. Though for such functions to qualify, they would seem to need to be ones the religious organization has deemed to involve involving leadership and supervision since it would be hard to view an entry-level accountant as performing a function crucial to a religious mission. If such functions were not covered by the Constitution, then the government could interfere unwittingly in a religious organization's internal workings in a matter to cripple its ability to carry out its religious mission if otherwise neutral and generally applicable employment laws prevented the religious organization from exercising its autonomy in such scenarios. And that would be constitutionally verboten.
Focusing on the perspective of the religious organization rather than the nature of an employee's tasks also avoid the inter-religious discrimination that several of the Justices voiced concerns over, often in the context of the element of a formal title in the analysis. And titles could certainly lead to inter-denominational discrimination when one faith tends to use professional clergy whereas another uses a lay clergy for the exact same function.
But the problem is more than just with titles. For example, Justice Gorsuch voices concerns about formulating a test that results in "discriminating against minority religions that may have views about what's important that are unusual or different from our own." OA Transcript, at 46:7-10, 22-25. When counsel for the government proposed "a generalized functional approach that looks to the types of things that religions usually operate with across the board," id. at 47:25-48:4, Justice Gorsuch noted the problem with such an approach: "Oh, well there—there exactly is the problem, 'usually.' 'Usually.' And that—that discriminates in favor of majority conceptions about religious doctrine and teaching," id. at 48:3-9.
Precisely. A focus on the tasks of an employee rather than the perspective of a religious organization will lead to courts deciding that what some employee is doing is or is not religious. (Which leads to the final error, noted below). And that will discriminate against minority faiths. Imagine some new religion whose adherents believe that certain trees and plants are their deity. Rather than a chapel, temple, synagogue or mosque, they worship in a private park they own. In such a faith, the gardener—the person tasked with physically taking care of the religion's gods—would have enormous religious importance even if pruning and fertilizing are not the types of things we usually view as religious in this country. Focusing on the tasks of the gardener rather than the views and directives to him of the religious organization could lead courts to deprive minority faiths of protections the Constitution guarantees that they desperately need given their outsider status.
The Stopwatch Fallacy
This erroneous focus on the employee's tasks naturally leads to the analytical error of the stopwatch fallacy. Throughout the arguments, Justices and attorneys alike attempted to draw a constitutional line based on how many minutes an employee was engaged in a religious function. For example, respondents' counsel didn't view constitutional protection applying to a religious organization if a teacher only taught religion for "40 minutes a day." OA Transcript, at 75:7, 13-21. Justice Kagan raised a hypothetical about "[a] math teacher who is told to teach something about Judaism for 10 minutes a week." Id. at 18:23-25. And there were discussion about whether being a full-time versus a part-time religion teacher would make a constitutional difference.
Oddly, this focus on how much time an employee devotes to religious functions was already rejected in Hosanna-Tabor, which involved a religious school teacher whose "religious duties consumed only 45 minutes of each workday." 565 U.S. 171, 193 (2012). As the Chief Justice observed for a unanimous Court, "[t]he issue before us . . . is not one that can be resolved by a stopwatch." Id. at 193-94. Yet it's not surprising that so much of the analysis could revolve around counting minutes. Misnaming the doctrine naturally leads to focusing on the wrong actor. And that misplaced focus causes analysis that emphasizes the wrong facts.
There is no doubt that even without these interrelated errors, there will be tough cases and the occasional line-drawing difficulty. But that's just a function of applying the law to the real world, with all its messiness. Yet the by fixing these three errors, the Court can go a long way towards making sure that religious organizations of all stripes receive the protection the Constitution provides.