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In Defense of the Ministerial Exception Christopher C NORTH CAROLINA LAW REVIEW Volume 90 | Number 1 Article 2 12-1-2011 In Defense of the Ministerial Exception Christopher C. Lund Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Christopher C. Lund, In Defense of the Ministerial Exception, 90 N.C. L. Rev. 1 (2011). Available at: http://scholarship.law.unc.edu/nclr/vol90/iss1/2 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. IN DEFENSE OF THE MINISTERIAL EXCEPTION* CHRISTOPHER C. LUND** Over the past forty years, courts have developed the "ministerial exception," a legal doctrine which immunizes churches from employment-based claims brought by their clergy (and others with significant religious duties). The lower courts all recognize this exception. But its contours remain fiercely disputed.And the Supreme Court has never clarified its boundaries or even confirmed thatit exists at all. This Article defends the ministerial exception and tries to flesh out its various rationales in a systematic and comprehensive fashion. It suggests that the ministerial exception may be profitably thought of not as a single indivisible whole, but rather as the overlap of several different discrete immunities, each backed by different justifications. It divides the ministerial exception into three components-a relational component, a conscience component, and an autonomy component. Examining each component separately, this Article tries to offer a richer explanation as to why we have this thing called the ministerialexception. This Article comes at an opportune time. Nearly forty years alter the birth of the ministerialexception in the lower courts, the first ministerial exception case is now before the Supreme Court of the United States. The case is Hosanna-Tabor v. EEOC, and the Court will have to decide both whether the ministerialexception * © 2011 Christopher C. Lund. ** Assistant Professor of Law, Wayne State University Law School. I would like to thank a number of people for thoughtful comments at various stages of this Article- Sarah Abramowicz, Richard Albert, Greg Bowman, Kathleen Brady, Kingsley Browne, Marc DeGirolami, Mary Jean Dolan, Chad Flanders, Lance Gable, Rick Garnett, Caroline Giordano, Michael Helfand, Paul Horwitz, John Inazu, Kerry Kornblatt, Douglas Laycock, Justin Long, Michael McCann, Aaron Perzanowski, Eric Rassbach, Steven Smith, Charles Sullivan, Robert Tuttle, Howard Wasserman, and Steven Winter. All errors, of course, are mine. By way of disclosure, I served as counsel of record for the amicus brief filed by the Lutheran Church-Missouri Synod that is cited infra in note 150. None of the views expressed here, however, should be attributed to the Lutheran Church-Missouri Synod. NORTH CAROLINA LA WREVIEW [Vol. 90 exists and what it covers. After looking at the ministerial exception in general, this Article concludes by offering some thoughts on the issues presentedin H osanna-Tabor. IN TR OD U CTIO N ..................................................................................... 2 I. SETTING THE STAGE FOR THE MINISTERIAL EXCEPTION ..... 6 A. An Introduction to EmploymentLaw ............................... 6 B. An Introduction to Church Autonomy ............................. 10 1. The Religion Clauses in Brief ..................................... 11 2. Church Autonomy in the Context of Church- Property D isputes ........................................................ 12 3. Church Autonomy in the Context of Church- C lergy D isputes ............................................................. 17 4. Church Autonomy Meets Employment Law: The Case of CatholicBishop ............................................... 19 II. CHURCH AUTONOMY AND EMPLOYMENT LAW TOGETHER: AN INTRODUCTION TO THE MINISTERIAL E X CEPTIO N ............................................................................... 20 III. THE RELATIONAL COMPONENT ............................................. 23 IV. THE CONSCIENCE COMPONENT ............................................... 31 V. THE AUTONOMY COMPONENT (THE MINISTERIAL EXCEPTION SIMPLICITER) ...................................................... 35 A. The ReinstatementProblem ............................................... 38 B. The RestructuringProblem ............................................... 42 C. The ControlProblem ....................................................... 45 D . The Inquiry Problem.......................................................... 51 VI. THE DOCTRINAL OBJECTION ................................................... 57 VII. THE SCOPE OF THE MINISTERIAL EXCEPTION AND A CLOSER LOOK AT HOSANNA-TABOR v. EEOC.................... 61 A. TheFacts ofHosanna-Tabor ............................................ 61 B. The ProperScope of the MinisterialException ............... 64 C O N CLU SIO N ......................................................................................... 71 INTRODUCTION A hallmark of American law is that employers cannot use things like race, sex, and age as criteria in employment decisions.' Whether employers are public or private, the law generally forbids such discrimination. But an equally august principle in American law is 1. See infra Part L.A (providing an introduction to employment law). 2011] IN DEFENSE OF THE MINISTERIAL EXCEPTION 3 that of religious liberty. Religious organizations have long had, as a matter of constitutional right, freedom to choose their leaders without being hindered, second-guessed, or supervised by the state. In recent years, these two principles have collided. The result has been the "ministerial exception." Lower courts have held that churches are generally immune from employment-related claims brought by their ministers (and others with highly religious duties), but that churches have no such immunity from claims brought by other employees.2 While courts agree on the broad contours of the ministerial exception, they disagree on many of the specifics. Courts differ on some straightforward matters-like which job positions count as ministerial.3 But they also divide on trickier and more conceptual questions-like whether the ministerial exception should protect religious organizations in the absence of any religious doctrine requiring discrimination4 and whether it should apply in cases where the minister continues to work for the church.' A storm of recent articles push things in another direction, arguing that the ministerial 2. See discussion infra Part II (providing an introduction to the ministerial exception). This Article uses the word "church" throughout to refer collectively to religious organizations like churches, temples, and mosques without intending any exclusively Christian reference. Other articles do the same. See, e.g., Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and theRightto Church Autonomy, 81 COLUM. L. REV. 1373, 1373 n.2 (1981). 3. Courts have, for example, come to quite different conclusions about whether parochial school teachers fall within the ministerial exception. Compare Coulee Catholic Sch. v. Labor & Indus. Review Comm'n, 768 N.W.2d 868, 892 (Wis. 2009) (holding that such a teacher falls within the ministerial exception), and Clapper v. Chesapeake Conference of Seventh-Day Adventists, No. 97-2648, 1998 WL 904528, at *8 (4th Cir. Dec. 29, 1998) (same), with EEOC v. Hosanna-Tabor Evangelical Lutheran Church & Sch., 597 F.3d 769, 782 (6th Cir. 2010) (holding that such a teacher does not fall within the ministerial exception), and DeMarco v. Holy Cross High Sch., 4 F.3d 166, 172 (2d Cir. 1993) (same). 4. Compare Petruska v. Gannon Univ., 448 F.3d 615 (3d Cir. 2006), withdrawn upon grantof reh'g, 462 F.3d 294 (3d Cir. 2006), available at 2006 U.S. App. LEXIS 13135, at *28 (holding that the ministerial exception generally only shields churches when they argue that the discrimination was required by their religious tenets), with Petruska v. Gannon Univ., 462 F.3d 294, 312 (3d Cir. 2006) (rehearing the case after the decision in the first Petruska and holding that the ministerial exception provides blanket protection for churches with regard to employment discrimination claims by ministers). 5. Courts seem more comfortable deciding such cases because they do not present the danger of a church being forced to rehire a minister against its will. See Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 959 (9th Cir. 2004) (letting hostile work environment claims proceed). Butsee Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1246 (10th Cir. 2010) (holding that such claims are barred by the ministerial exception). NORTH CAROLINA LA WREVIEW [Vol. 90 exception should be abolished altogether or at least dramatically narrowed.6 This Article defends the ministerial exception against its critics. It aims to provide a fuller account of why a ministerial exception makes some sense. At the conceptual level, it argues against those who would see the ministerial exception as a single entity with a single theory of justification.7 It proposes instead that the ministerial exception is better viewed as the combination of a number of distinct but overlapping immunities, each backed by a variety of rationales. It suggests that the ministerial exception can be helpfully divided into
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