Academic

Ministerial Exception, Schministerial Exception, Part III

By Paul McGreal

In my last post, which seems like weeks ago (probably because I was out sick for a day, and then had to draft my first class schedule as associate dean, but that's a story for another post), I discussed whether the ministerial exception survives the Supreme Court's decision in Employment Division v. Smith. In this post, I begin my critique of the exception with a brief point about the vulnerable position of ministers to employment discrimination. The point draws on the strongest form of the economic argument against anti-discrimination laws. That argument holds that anti-discrimination laws are not necessary, as a general matter, because discrimination will be unprofitable in an efficiently functioning employment market.  Consequently, discriminating firms will be competed out of business. The argument has been made by Gary Becker (The Economics of Discrimination), Richard Epstein (Forbidden Grounds), and others.

The economic argument begins with the proposition that job skills are distributed between the genders and among racial and ethnic groups, and so firms that refuse to hire workers on account of gender, race, or ethnicity inevitably pass over more qualified workers. The more qualified workers are then free to offer their services to competing firms that do not discriminate. By hiring the better workers, the non-discriminating firms will be at a comparative advantage to their discriminating counter-parts; the non-discriminating firms will eventually compete the discriminating firms out of the market.

Of course, there are critiques of this version of the economic case against anti-discrimination laws.  For present purposes, however, I want to accept this account. Note that the argument rests on the assumption of competition among firms for workers. The model does not work, however, if there is an employer monopoly. This is because the discriminated-against employee has no other firm to shop her talents to, and the discriminating firm has no competitors to punish the inefficient discriminatory employment behavior.

In some denominations, the minister and the church stand in the same position as an employee and a monopolist employer.  So even under the strongest form of the economic argument, the minister would merit legal protection. The market will only protect ministers who have the ability to offer their services to competing churches. In a hierarchical church, however, that may not be possible because a person who is dismissed as a minister could be foreclosed from future ministerial service in that faith. The economic argument will work only if the minister could easily offer her services as minister to churches in other faiths. For this to be so, the minister would have to see one faith as a substitute for another. Yet, for many persons of faith, that is just not so ? religion is revealed as the proper path to salvation, and being forced to follow another faith would violate deeply held beliefs. If religious conversion is out of the question, the church would effectively hold a monopoly on employment as a minister of that faith.

At this point, you might ask what this discussion has to do with the issue whether the Religion Clauses of the First Amendment require a ministerial exception to federal employment discrimination laws. After all, as we learned post-Lochner, the Constitution is not a guarantee of economic efficiency. All true, but my point in this post is not a constitutional one. Rather, I want to assert at the outset that the government's interest in combating employment discrimination is particularly acute in the church-minister context because a church may be a monopolist in the minister employment market. In such cases, the government's interest in regulating is particularly strong, which would be relevant to whether the government could overcome a heightened form of constitutional scrutiny.

Full post as published by The Faculty Lounge on February 25, 2010 (boomark / email).