Publication Date

2011

Abstract

On October 5 2011 the Supreme Court will hear oral arguments in HosannaTabor Evangelical Lutheran Church School v EEOC a case in which the Court will consider the existence and nature of the socalled ministerial exception the judicial doctrine that gives churches legal immunity in employment discrimination cases brought by ministerial employees The case promises to be one of the more important churchstate decisions in recent years In conjunction with the second Annual Law and Religion Roundtable the Northwestern University Law Review Colloquy will be publishing several pieces on the caseIn this contribution to the Colloquy I argue strongly in favor of the ministerial exception concluding that it is a necessary part of a principle fundamental not only to the Religion Clauses but to the Western churchstate settlement more broadly that in an important sense church and state each represent separate distinct sovereigns or jurisdictions Whatever else that settlement means it requires at a minimum that the state cannot involve itself in questions related to the selection and status of church leaders or membersI argue however that our focus on the question of power is inadequate More important perhaps than the question whether the ministerial exception ought to exist is how we ought to behave if it does Supporters of the ministerial exception "“ and I count myself among them "“ are morally obliged to give thought to how churches ought to behave toward their employees in cases in which those employees may be entitled to no legal remedy I argue that the ministerial exception should be thought of as a responsibility or burden for churches not just a license to act without legal consequence Furthermore where the law treats churches and other First Amendment institutions as entitled to a substantial degree of legal autonomy we ought to think carefully about the role of both debate within the institution and public criticism of that institution in encouraging sound and responsible conduct by those actors There are good reasons to champion the kind of institutional autonomy and pluralism represented by the ministerial exception and to avoid thinking of the state as the font of all power and the solution to all problems but taking that step requires us to think much more carefully about institutional responsibility and about the civic duty of citizens to monitor and critique our key nonstate institutions HosannaTabor should mark the beginning of an important conversation not the end

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