The Volokh Conspiracy
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I always very much appreciate the work of Stanford Law School Prof. Michael McConnell, one of the very top Religion Clauses scholars in the nation, and am thus delighted to pass along this guest post on the Supreme Court's ministerial exception oral arguments. (Note that he and I signed the same amicus brief in the case; note also that his and Doug Laycock's names are quite appropriately listed at the beginning of the signatories' list, and the rest are in alphabetical order.)
Monday's argument in the ministerial exception cases, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, made me realize the cases are more difficult than I had originally thought. Not that the outcome is really in doubt. Especially in light of the Alito-Kagan concurrence in Hosanna-Tabor, there seems to be broad agreement that religious schools have a First Amendment right to choose who will teach the faith to the next generation. But neither side put forward an analytical framework for future cases that gained much traction.
[1.] This is a case that never should have come to the Court. Hosanna-Tabor, a unanimous decision, involved a teacher whose function was almost indistinguishable from that of Morrissey-Berru and Biel, except as to factors, such as title, that should not make a difference (especially under the Alito-Kagan concurrence). The Ninth Circuit decisions in favor of the teachers and against the religious schools appear to have been motivated more by resistance to Hosanna-Tabor than to genuine differences in the cases—the ideological mirror image of the Fifth Circuit's narrow factual distinction of Whole Woman's Health in this year's abortion clinic cases. In ordinary times, we should expect the Courts of Appeals to take their cue from a unanimous Supreme Court, not to confine the Court's decision to its specific facts.
[2.] Our system of case-by-case constitutional adjudication works best when the case under review itself raises the difficult fault-line issues that need clarification. It does not work well when the case itself is straightforward and the disagreement is over hypotheticals. There is a reason that Article III is confined to actual cases and controversies. Monday's argument was a splendid illustration of the pitfalls of adjudication by hypothetical.
[3.] The defects in the teachers' "formalistic" test (their term), based on title and training, were most evident.
Chief Justice Roberts focused (at 54) on the problem that the formal-title approach is manipulable: "if you want broad protection, you just start handing out titles to everybody." This is a serious problem. It is much less costly to switch titles than to change the responsibilities of a job—even assuming that religious institutions are spending their time trying to avoid application of employment discrimination laws.
But in my opinion, the more serious issue is that different religious faiths have different attitudes toward titles, often for theological reasons. My own denomination, Presbyterianism, deliberately abandoned the title of "priest" to describe the worship leader of the congregation, substituting the less-sacerdotal title of "teaching elder," precisely because of the Reformed Protestant doctrine of the priesthood of all believers.
Quakers have no ordained clergy at all, but this does not mean they do not have religious leaders or persons performing religious functions. Our Founders, recognizing that Quakers have no "ministers" as such, framed legislation in terms that allowed that denomination to make good-faith judgments for itself about its religious functions.
The term "rabbi" sounds religious to modern ears, but I am told the Hebrew just means "teacher." In the Church of Jesus Christ of Latter-day Saints, young men of good standing in the Church become priests in the Aaronic order at age 12, after going through an ordination ceremony involving the laying on of hands. That does not mean every task they might perform in the Church is a "ministerial" function.
Imams are worship leaders, but in most Islamic communities are not specially trained or ordained. It would be wrong to base constitutional categories on the title on the nametag, when the idea of title varies so widely among faiths.
At one point in the argument, counsel for the teachers, my friend and Stanford colleague Jeff Fisher, seemed to recognize the difficulty. Faced with challenging questions from the Justices about the formal-title rule, he stated that that "we wouldn't rely solely on titles" and that "[f]unction should be part of the analysis to make sure that you're not disadvantaging minority religions" (56, 80). Just so. Title might be part of the analysis, so long as consideration of title is sensitive to the particular ecclesiastical context. But it cannot be a "test."
Respondents' alternative formalism—an emphasis on training—would be even worse. Controversy over the need (or not) for formal religious training was one of the most prominent flashpoints in the struggle for disestablishment in the late eighteenth and early nineteenth centuries. Old-line Congregationalists (among others) placed great weight on having a "learned clergy," and worried that unschooled zealots would lead the flock to heretical extremes of "enthusiasm." Followers of the First Great Awakening disdained professional clergy (whom they called "hireling priests") and insisted that the gospel must be advanced by preachers who had experienced the saving grace of Jesus Christ, regardless of education. Let us not reintroduce establishmentarian distinctions today that were discarded at the time of the first disestablishments.
The Respondents propounded these formalistic distinctions in a commendable attempt to keep the courts out of the business of making theologically-sensitive, context-specific judgments about religious roles. But their attempt to craft crisp-and-clear criteria ended up treating different religious traditions differently, which violates a core principle of the Religion Clauses.
For reasons explained by Justices Alito and Kagan in their Hosanna-Tabor concurrence, attempts of the formalist variety do not map well onto America's religious diversity. The problem came to a head during oral argument, when Justice Alito asked Jeff Fisher whether his formal-title test would cover a full-time religion teacher who teaches religion exclusively, but who has no formal title or religious training. Fisher's response? "That person would probably not be a minister." (72). This, Justice Kagan said (at 81) "surprised" her. (That is what passes for strong language among the Justices.)
But that would be the inevitable (and unconstitutional) consequence of making title or training a prerequisite for ministerial status: If a religious group doesn't use the right title or provide the right training, then the government can decide who will, as Justice Kagan said (at 82), "teach religion and … bring up the next generation in important understandings of religious doctrine and practice."
[4.] Counsel for the schools, my friend Eric Rassbach, got into hot water by sticking to a test of "important religious functions" (language used in both the unanimous opinion in Hosanna-Tabor and the Alito-Kagan concurrence). He was barraged by questions, even by Justices seemingly sympathetic to his ultimate position, about how courts can determine what religious functions are "important."
This is a concern of long standing, and there is no clear answer. Justice Scalia reminded the Court that there is a difference between the right to be married in a church and the "practice of throwing rice at church weddings." (Employment Div. v. Smith.) But how would an outsider know which steps in the preparation of food are "important" to ensure that the meal is kosher? It may even vary from one Jewish community to another. That is why Justice Brennan objected to the requirement of "centrality" in Free Exercise Clause cases. (Lyng v. Northwest Indian Cemetery Protective Ass'n.)
Listening to these questions and seeing the inability of able counsel to deal with most of them, it became clear (at least to me) that the Court should not attempt in this case to draw the line. There is no serious doubt that teaching religion on a regular basis to young children is an important religious function. No Justice seemed to doubt that.
Moreover, there are lots of other easy cases out there. Justice Alito's concurrence in Hosanna-Tabor identified a few—leading the organization, conducting worship services or rituals, and serving as a messenger or teacher of the faith. If such functions are a meaningful part of an employee's job, there is no need for judicial second-guessing: That person is a "minister." (Or at least, that person is within the doctrine. I hope the Court will provide a more inclusive terminology.) The large majority of cases under the ministerial exception doctrine over the last three decades have fallen in these easy categories.
The most helpful thing the Court could do at this juncture is to endorse the Alito-Kagan concurrence, thus resolving the easy cases, and not attempt to analyze the more difficult ones in advance or in the abstract. That is the job of the lower courts (assuming they get over any spirit of resistance to the fundamentals of Hosanna-Tabor). Let the cases percolate; let lower courts distinguish one fact pattern from another.
At this point, we don't know what cases will present themselves. Different functions have different significance in different traditions. Even the same job may be at the core of one congregation's religious mission—but not another's. In the church I grew up in, for example, the music director was possibly the most important person in the church for teaching church history and doctrine in way that children and teenagers could appreciate. (I hope you are reading this from heaven, Helen Wick!) In another church, the choir director might be simply someone to teach kids how to sing on pitch. It all depends. That is why the Court should not rush in to supply answers in advance of real cases.
Another reason not to try to answer hard cases in advance is that they may not arise as often as the legal imagination imagines. The Justice rightly worried, for example, about nurses in hospitals run by religious denominations. They (or at least some of them) might present hard line-drawing problems.
But to my knowledge, in the three decades the ministerial exemption has been recognized in the lower courts, not a single hospital has claimed that its nurses are ministers. One reason may be that faith communities care (more than anyone else) about their own religious organization and self-understanding. It would feel creepy for a religious group to call an employee a minister who does not perform an important religious function, just for the purpose of thwarting the anti-discrimination laws. I am not saying it will never happen—just that hard hypotheticals may outnumber real-world controversies. (That has been true of the even harder line-drawing problem of the definition of "religion" under the First Amendment. I bet there have been fifty law review articles for every actual case of a borderline claim to be a "religion.")
[5.[ One point of notable agreement from yesterday's argument was abandoning the term "ministerial exception," and replacing it with a term like "ecclesiastical immunity." As I explained in an amicus brief, and as Justice Alito emphasized yesterday, that change would be an improvement. Few non-Protestant faiths use the term "minister" for those who teach their faith and guide their choices, and the law's reliance on it has resulted in some discrimination against minority groups.
Further, the doctrine is not a mere "exception" from certain statutory regimes, but rather a deeper First Amendment "immunity" from state entanglement in core internal church affairs. The Court should take this chance to say so.