Civil Procedure and the Establishment Clause: Exploring the Ministerial Exception, Subject-Matter Jurisdiction, and the Freedom of the Church

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 be 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 anti-discrimination 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, this Article suggests that the jurisdictional approach alone cannot provide an adequate constitutional foundation for robust protection of the freedom of the church. INTRODUCTION 44 I. Petruska's Mistake 52 II. JURISDICTION AND THE FREEDOM OF THE CHURCH 55 III. JURISDICTION AND THE STRUCTURAL ESTABLISHMENT CLAUSE ......... 63 IV. THE MINISTERIAL EXCEPTION, SUBJECT-MATTER JURISDICTION, AND THE FREEDOM OF THE CHURCH 69 A. The Difference Between Subject-Matter Jurisdiction and Failure to State a Claim 70 B. The Ministerial Exception as a Limitation on Adjudicatory Power ... 72 C. Subject-Matter Jurisdiction Characteristics ofthe Ministerial Exception 81 D. Qualified Immunity or Sovereign Immunity? 85 E. Does It Matter? 90 1. Clear Affirmation ofthe Penultimacy ofthe State 91 2. Issues Related to Removal and Supplemental Jurisdiction ....... 97 CONCLUSION 101 INTRODUCTION What sort of defense is provided by the ministerial exception to employment discrimination claims? The ministerial exception "bars civil courts from reviewing decisions of religious organizations relating to the employment of their ministers."1 Invoking this doctrine, courts routinely dismiss claims of race and sex discrimination brought by ministers against their religious employers under Title VII and other federal and state anti-discrimination laws.2 The doctrine serves to protect religious organizations from secular control or manipulation in the choice of employees who perform spiritual functions by "precluding] any inquiry whatsoever into the reasons behind a church's ministerial employment decision."3 Rooted in the First Amendment's protection for religious freedom, the exception recognizes that the Constitution protects "the unfettered right"4 of a church to make such employment decisions. …