Ministerial Exception, Shministerial Exception, Part II

In my first post on the ministerial exception, I said that my next post on the subject would begin my critique.  Apparently I was wrong.  As I was thinking over my next post (at the gym, no less!), it occurred to me that I should address another important doctrinal wrinkle as a segue to my critique.  The issue is whether the Supreme Court's landmark Free Exercise Clause decision in Employment Division v. Smith, 494 U.S. 872 (1990), effectively abrogates the ministerial exception.

To put Smith in context, it is useful to know something about the Court's pre-Smith Free Exercise Clause doctrine.  Starting in the mid-1960's, the Court applied "strict scrutiny" to laws that substantially burden a person's free exercise of religion.  Strict scrutiny is the most demanding level of review in constitutional law, requiring the government to show that the challenged law is necessary to achieve a compelling government interest.  It is conventional con law wisdom that few laws will be constitutional under this test, prompting one academic to call the test "'strict' in theory and fatal in fact." (An article by Adam Winkler shows that many laws, especially in the religious freedom context, in fact survive strict scrutiny.)

For example, in Sherbert v. Verner, 374 U.S. 398 (1963), the Court applied strict scrutiny to strike down a state unemployment compensation law.  The law denied benefits to a Seventh-Day Adventist who was fired for refusing to work on Saturday, which was her Sabbath.  The Court held that forcing a person to choose between unemployment and her Sabbath day substantially burdened the free exercise of religion.  Applying strict scrutiny, the Court then held that denying benefits to a Seventh-Day Adventist was not necessary to the government's interest in preventing fraudulent benefit claims.

Sherbert created a potential problem for the Court.  Given the diversity of religions in the United States, as well as the pervasiveness of the modern regulatory state, a wide array of state and federal laws arguably burden the free exercise of religion.  For example, post-Sherbert, the Supreme Court heard cases raising free exercise challenges to a state law that required photos on driver's licenses (Jensen v. Quaring, 472 U.S. 478 (1985)), and a federal law that required a social security number for aid eligibility.  (Bowen v. Roy, 476 U.S. 693 (1986))  The Court became worried that the approach adopted in Sherbert would license lower courts to run roughshod over state and federal law in the name of free exercise.

(As a side note, I have been researching the papers of Justices Harry Blackmun and Lewis Powell on Religion Clause cases.  A published essay as well as a current work-in-progress look at what the justices papers say about the Court's move from the Sherbert approach to the test in Smith.)

The plaintiff in Smith sought strict scrutiny for a state law that denied him unemployment benefits on account of his admitted use of the hallucinogenic substance peyote.  All parties agreed that the claimant's peyote use was part of his sincerely held religious beliefs, and that the state law did not exempt such use.  Under the Sherbert approach, the Court should have asked whether the state law substantially burdened the claimant's right to exercise his religion, and if so, whether the law survived strict scrutiny.

Instead, the Court switched gears, changing the test for Free Exercise claims.  In place of the Sherbert approach, the Court adopted the following test.  First, a court must ask whether the challenged law is neutral and generally applicable.  A law is neutral and generally applicable if it covers conduct regardless of whether the conduct is religiously motivated.  For example, in Smith, the state law barred unemployment compensation for all drug use, regardless of whether the use was religious.  Conversely, in the case Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993), a local animal cruelty law was not neutral or generally applicable because it banned only religious animal sacrifice by the Lukumi Church.

Second, if the law is neutral and generally applicable, the Court will apply rational basis review, which is the most lenient for of constitutional scrutiny, requiring only that the challenged law be rationally related to a legitimate government purpose.  (In short, strict scrutiny means that the government loses, and rational basis review means that the government wins.)  Strict scrutiny applies only if the law is not neutral or generally applicable.  (The Court treats neutrality and general applicability as separate requirements; the narrow distinction between the two, however, is not important for present purposes.)  In Smith, the state unemployment compensation exclusion easily survived rational basis review.

Because lower courts developed the ministerial exception before Smith, the question arose whether Smith meant the death of that exception.  After all, Title VII is a neutral and generally applicable law -- that is, Title VII applies to all employers, religious and secular.  Under Smith, then, the government's decision to not exempt religious employers from Title VII would be subject to mere rational basis review, which would mean Title VII lives, and the ministerial exception is dead.  It seems pretty straightforward.  So, why has every circuit to consider the question come to the opposite conclusion?

The answer is somewhat tricky, requiring a close reading of the Court's reasoning in Smith.  To perhaps oversimplify a bit, the Court's change from the Sherbert approach to the Smith approach was based on two main grounds.  First, as noted above, Sherbert invited an avalanche of free exercise exemptions that threatened to anoint each person of faith as a law unto herself.  The ministerial exception seems to run afoul of this rationale -- by allowing religious employers to discriminate against ministers and other similar employees with impunity. This Smith rationale, then weighs against the ministerial exception.

The second Smith rationale had to do with avoiding judicial decisions on religious beliefs.  Recall that the Sherbert test required courts to decide whether the challenged law substantially burdened a person's exercise of religion.  This inquiry might require a court to assess the importance or centrality of particular religious beliefs or practices.  The  Smith Court summarized the problem as follows:

Nor is it possible to limit the impact of respondents' proposal by requiring a "compelling state interest" only when the conduct prohibited is "central" to the individual's religion. It is no more appropriate for judges to determine the "centrality" of religious beliefs before applying a "compelling interest" test in the free exercise field, than it would be for them to determine the "importance" of ideas before applying the "compelling interest" test in the free speech field. What principle of law or logic can be brought to bear to contradict a believer's assertion that a particular act is "central" to his personal faith? Judging the centrality of different religious practices is akin to the unacceptable "business of evaluating the relative merits of differing religious claims." As we reaffirmed only last Term, "[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds." Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.

The Court cited the church autonomy cases in support of this position. In short, churches, not courts, should decide questions of religious doctrine and theology.

The second Smith rationale weighs in favor of the ministerial exception. To see how this argument goes, consider the church employment hypothetical from my prior post. A church fires its minister because, in the opinion of the church leaders, the minister has behaved inconsistent with church teachings. The minister, however, claims that the church leaders really fired her because of her gender, and that the "church teachings" rationale is a pretext for gender discrimination. To prevail, the minister must prove that gender was a motivating factor in her termination. The church will defend by arguing that the sole reason for firing the minister was behavior inconsistent with church teachings. To assess the credibility of the church's gender neutral explanation for the firing, the court must inquire about what is required by church teachings, and when a minister's behavior is sufficiently inconsistent with those teachings to justify termination. These are precisely the type of questions that Smith says are no business of the courts.

So there you have it – the Smith rationales are split on the ministerial exception. On the one hand, allowing the exception threatens to make churches "laws unto themselves" when it comes to employment discrimination against ministers. On the other hand, allowing a minister's Title VII claim invites courts to answer forbidden questions of church doctrine and theology. Given Smith's apparent ambivalence, it is no surprise that every circuit to consider the issue has held that the ministerial exception survives Smith. After all, the ministerial exception is existing circuit precedent, and nothing in Smith requires abandoning that doctrine. My proposal, which I will discuss in a later post, advocates allowing a Title VII claim that steers a narrow course between the Scylla of the "avalanche of exemptions" and the Carbides of church autonomy.

Comments

[Marc DeGirolami]

There is an argument that you do not consider for the conclusion that Smith is inapposite when dealing with the ministerial exemption. It is that Smith dealt with an individual free exercise right, while the ministerial exemption is really about the liberty of institutions, or "churches," to direct their internal affairs. That is, the ministerial exemption has been held to involve matters of institutional autonomy and it has been applied for the last roughly half century with an eye toward separationist concerns.

One can disagree with this view, of course, and I believe that, e.g., Caroline Corbin has done so in recent work. Paul Horwitz, by contrast, in his work on institutionalism, defends it. But whatever way you come out, it is still an argument that weighs against the application of Smith to the ME.

[insulation government grant]

the credibility of the church's gender neutral explanation for the firing, the court must inquire about what is required by church teachings, and when a minister's behavior is sufficiently inconsistent with those teachings to justify termination.