Wednesday, January 11, 2012

The Ministerial Exception

A 9-0 ruling from the U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012).  Even the concurring opinions by Justices Thomas and Justice Alito (with Kagan) are only making very minor additions to the core argument by Chief Justice Roberts.  The teacher who filed suit against her employer was considered a minister of the Evangelical Lutheran Church, and her employment contracted required her to resolve differences through the mechanism of 1 Corinthians 6:1-7, rather than suing in the courts. For the government to interfere with a church's internal decision making process concerning ministers would violate both the free exercise clause and the establishment clause.  These take precedence over any federal laws concerning disability discrimination claims.

I found Roberts' decision quite interesting to read.  In particular, he mentions Madison's veto in 1811 of a Congressional bill chartering a Protestant Episcopal Church in Alexandria (at the time, still in the District of Columbia).  A reader commented a while back, asserting that Madison's veto (upheld by Congress) indicated that the establishment clause prevented any action at all even slightly supportive of religion:
During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes.
 Yet Roberts' explanation, which matches what I can find at 22 Annals of Congress 982-3, is that Madison's concern was not that Congress was incorporating a church, but the level of control that it provided over that church:

The bill enacts into, and establishes by law, sundry rules and proceedings relative purely to the organization and polity of the church incorporated,  and comprehending even the election and removal of the Minister of the same; so that no change could be made therein by the particular society, or by the general church of which it is a member, and whose authority it recognises.”  Id., at 983 (emphasis added)
 In addition, Madison was concerned that the charter provided that the church was given authority to provide for poor relief and education for poor children.  The language of his veto message is not abundantly clear, but it seems as though his concern is that the charter made this church effectively an arm of the government, presumably because it would receive some legal status associated with poor relief or education.

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