Wednesday, October 5, 2011

Summary and Analysis of the SCOTUS ministerial exception case

If you are just joining our coverage start here and read up. Here is my summary, analysis, and prediction.

Oh, one final quotation first:

JUSTICE SOTOMAYOR: So you're limiting your
test to whether that person is minister. So define
minister for me again.

MR. LAYCOCK: A minister is a person who
holds ecclesiastical office in the church or who
exercises important religious functions, most obviously,
including teaching of the faith.


Alito, Scalia, and Roberts come across as obviously favoring the parish's case. Thomas, as is his wont, was silent; but let us assume that he will go with the "conservative wing" and decline to let the government get involved in ecclesiastical employment disputes. Kagan, Sotomayor, and Ginsberg seem to be on the teacher's side. That leaves Kennedy and Breyer to make the majority.

Breyer truly seems to be a wildcard in this. Of all the justices he seems to me to be the one who truly read the case with the most open mind. He obviously favors sending this back to a lower court to decide some narrow issue - specifically whether or not this teacher was really fired for a religious reason or whether that was just a pretext.

Kennedy also did not like the fact that the teacher's case was tossed out without a hearing - but what he thinks the hearing should have been about was whether or not she was really a "minister." The "conservative" justices were obviously talking to him when they pointed out what a mess that would be in court.

So there seem to me to be three opinions there, with none of them having a majority. The conservatives, however, only have to pick up Kennedy. The "liberals" will need Kennedy and Breyer. So I'd say the odds are 60-40 that it goes for the parish and upholding a rather broad interpretation of the ministerial exception....BUT I think the price of Kennedy's vote might be an open door for lower courts to hear testimony on whether or not someone is really a minister in a "pretext" argument.

So here is my bold prediction. 5-4 for the parish on narrow grounds, but Kennedy will write a partly dissenting, partingly concurring opinion that says, yes, this woman has a piece of paper that says she is a "commissioned minister" so this case goes to the petitioner....but, lower courts should be able to review claims that are not so clear if the individual employee claims that the church is calling him/her a minster as a mere "pretext."



  1. I find the amicus brief of the LCMS (among others) interesting.

  2. Matt,

    Interesting is not the adjective I would use...but yes, there it is, the Missouri Synod's "official doctrine" in all its confusing splendor. Acts 6 is about female school teachers, not deacons! Now I get it!


  3. I was thoroughly disappointed with Montgomery's interview on Issues on this topic. Followed the official party line.

    Amazing though, isn't it, that after 150 years, it is the Supreme Court that is faced with deciphering the mush that is the "powerless pedagogy".


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