Saturday, February 25, 2012

Wasserman on the Jurisdictionality of the Ministerial Exception

Now available in the University of Pennsylvania Law Review’s PENNumbra is Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exemption by Prof. Howard Wasserman (Florida International). It begins:

On January 11, 2012, the Supreme Court decided the first significant case of the October 2011 Term, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. A unanimous Court held that a “called” teacher (a commissioned Lutheran minister) teaching secular subjects from a Christ-centered perspective could not prevail in an action challenging her termination under the Americans with Disabilities Act (ADA). The Court for the first time recognized the “ministerial exemption” to the ADA and other federal employment discrimination laws, affirming the uniform position of the federal courts of appeals . . . A second open issue surrounded the ministerial exemption prior to Hosanna-Tabor: its proper jurisdictional characterization. Is the exemption a jurisdictional limitation or an aspect of the merits of a claim? Does it reflect a First Amendment limitation on the reach of substantive secular law into matters of faith, doctrine, and church governance? Or does it limit the adjudicative jurisdiction of the courts in which such disputes might be resolved? Put differently, if and when the ministerial exemption defeats a claim in federal court, does the claim fail because the court lacks subject matter jurisdiction or because the plaintiff’s claim fails on the merits?


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