Religion & Law

Kalscheur on the Ministerial Exception

By Rick Garnett

MOJ-friend and -veteran Greg Kalscheur (Boston College) has a must-read paper on SSRN, "Civil Procedure and the Establishment Clause:  Exploring the Ministerial Exception, Subject Matter Jurisdiction, and the Freedom of the Church."  Here is the abstract:

What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception bars civil courts from reviewing the decisions of religious organizations regarding the employment of their ministerial employees. While the exception itself is widely recognized by courts, there is confusion with respect to the proper characterization of the defense provided by the exception: should it seen as a subject matter jurisdiction defense, or as a challenge to the legal sufficiency of the plaintiff's claim? This Article argues that articulating the right answer to this question of civil procedure is crucial to a proper understanding of the role that the ministerial exception plays as a constitutional protection for the religious freedom of churches and other religious institutions. The Article explores the ministerial exception to antidiscrimination law as a case study of the extent to which the U.S. Constitution adequately protects the freedom of the church. The ministerial exception is best understood as a subject matter jurisdiction defense, and getting the right answer to this civil procedure question is not just a matter of citing the right procedural rule in the defendant's motion to dismiss. Instead, careful attention to this question leads to a better understanding of the foundations of our constitutional order. When courts clearly and consistently treat the ministerial exception as a limitation on their subject matter jurisdiction, they make a powerful statement about the foundations of limited government - they affirm the penultimacy of the state. Yet, even though the jurisdictional approach to the ministerial exception does provide crucial protection for one dimension of institutional religious freedom, the Article suggests that the jurisdictional approach alone cannot provide an adequate constitutional foundation for robust protection of the freedom of the church.

As MOJ readers know, I believe the questions Fr. Kalscheur is asking are at the heart of the religious-freedom conversation.  Any reactions to the paper?

Full post as published by Mirror of Justice on March 25, 2008 (boomark / email).