The Ministerial Exception and the Church’s Jurisdiction

Pat Smith

In Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___ (2020), the Supreme Court, in a seven to two decision, expanded the so-called ministerial exception to employment laws. In a sense, the decision is a victory for Christians (and, indeed, believers of any stripe), especially in the wake of the expansion of Title VII in Bostock v. Clayton County. The flexible, totality-of-the-circumstances standard announced by the Court will undoubtedly provide ample protection to Catholic schools. But it is worth considering the distinction between the majority’s test and the approach advocated by Justice Clarence Thomas in his concurrence, especially if one rightly views “religious liberty” as the wrong way to think about these issues. 

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The Ministerial Exception and the Liberty of the Church

Yves Casertano

Is a Catholic school teacher a “minister” of the Catholic Church? Notwithstanding the more laity-centric ecclesiology of the past several decades and the proliferation of “ministers” and “ministries” in the average parish, most Catholics would answer in the negative. While the Catholic Church employs a multitude of lay people in important functions, particularly in schools, calling them “ministers” is indeed a stretch. In today’s dissenting opinion in Our Lady of Guadalupe School v. Morrissey-Berru, Justice Sotomayor emphasized this incongruity. She claimed that the “ministerial exception” to employment laws is meant to address concerns about state meddling in the leadership and governance of religious communities. Relying on the more common understanding of “minister”, Justice Sotomayor suggested that the exception should only apply to those individuals who serve a “unique leadership role” in religious community, which does not include “[l]ay faculty . . . who teach religion at church-affiliated schools.”

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Fidelity and Faithfulness

Adrian Vermeule

A brief look at the chasm separating Chiafalo v. Washington‘s originalist interpretation of and the Founders’ intent regarding the Electoral College.

In Chiafalo v. Washington, the Supreme Court ruled today by a 7-2 vote that, in the light of “our whole experience as a Nation,” States may subject “faithless electors” — members of the Electoral College who vote for a candidate other than the one to whom they are pledged — to statutory penalties such as a monetary fine. The Framers may have expected electors to make independent judgments, but, alas! “[w]hether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page.” And “established practice,” developed since the 19th century, authorizes States to reduce electors to a pass-through mechanism. As early as 1864, the English barrister J.F. Stephen had observed acidly that “the election of the President by electors chosen by the people at large was supposed to be a security for the appointment of men of high character and ability. The security turned out to be worthless, inasmuch as for many years past, the electors have always been so completely pledged before their election that they might as well be dispensed with altogether.”

Of course “faithlessness” is ambiguous here; fidelity to the State-enforced pledge might be seen as infidelity to the original conception of the Electoral College itself, which as Stephen noted was intended by its creators and explained to the ratifiers as an independent body of notables deliberating in the public interest. Indeed, the whole line of development that culminates in Chiafalo would certainly startle the members of the Convention. As Max Farrand said of the Electoral College scheme in 1913, “of all things done in the convention the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”

If originalism is “our law,” it is apparently so in some very special, epicyclical sense that does not bar the Nation’s developing norms and traditions from so “informing” the interpretation of the written law as to essentially reverse the Framers’ publicly stated expectations about a central mechanism of the constitutional plan. One may say all sort of things to square such a result with originalism — heroic work can be and has been done with concepts like “construction” and “liquidation,” and the Court gestures briefly at the latter phrase — but the sheer amount of work one has to do merely raises questions about the value of the originalist enterprise itself, just as one might question the value of a car that must constantly be repaired. In a world in which post hoc developments can undo what was, in any rationally purposive sense, thought to be a linchpin of the constitutional plan, it is at best unclear what the force of calling oneself an “originalist” really is, or why anyone should care.

Adrian Vermeule

Revisiting Corporatism Eighty-Five Years After Schechter

Yves Casertano

Eighty-five years ago this past May, the Supreme Court struck down a statute that overhauled U.S. economic regulation according to principles promoted in a papal encyclical. The case was A.L.A. Schechter Poultry Corp. v. United States (“Schechter”),[1] the statute was the National Industrial Recovery Act of 1933 (“NIRA”), and the encyclical was Quadragesimo anno. NIRA, and the agency it created (the National Recovery Administration (“NRA”)), represented the high tide of the U.S.’s brief experiment with corporatism.[2] To the extent NIRA is remembered at all, it is often viewed as an unwieldy, ill-conceived–but perhaps understandable–response to the Great Depression. Among right-liberals in particular, NIRA is denounced as a shameful flirtation with an un-American authoritarian continental ideology. Indeed, the Supreme Court’s unanimous decision striking down NIRA seems to reflect distaste with the corporatist principles underlying the statute. Since 1935, however, the specific legal grounds on which the Supreme Court invalidated NIRA have either become obsolete or called into question and, in any event, Schechter’s concerns can be avoided in future legislation. Notwithstanding the historical importance of Schechter’s death-blow to American corporatism, neither Schechter nor any other constitutional principles foreclose reinvigorated corporatist reforms, which are as needed today as they were during the Great Depression.

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Et sic utor pro me

Pat Smith

In the ordinary gloss on a word in Gratian’s Decretum, D.10 c.1, one finds the phrase “Et sic utor pro me quo non utor contra me”—“And so I use for my sake what I do not use against myself.” Coming as it does in the context of Distinction 10, which is entirely about the relationship between imperial legislation and ecclesiastical law, the gloss seems to summarize the Church’s entirely pragmatic attitude toward civil law. Indeed, the pragmatism embodied by both D.10 c.1 and the gloss mentioned here seems almost modern, despite its great antiquity. Catholics today—especially Catholics considering primarily juridical questions, including the important question of the relationship between Church and state—may well find the Church’s historical pragmatism surprising. 

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John Roberts, Conservative

Rafael de Arízaga1 Comment

Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.

The Chief Justice’s decision to concur in the judgment in June Medical Services, L.L.C. v. Russo illustrates the usual political phenomenology of conservatism as the alleged antithesis to the principles of the liberal revolutions. Jaime Balmes, one of the great Catholic political philosophers and theologians of the 19th century, described the movement of all conservative political action in an 1844 article about the rise of moderate and conservative parties in Spain:

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True and False Humility

Adrian Vermeule1 Comment

Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.

A brief observation about the problems of judicial Burkeanism: In June Medical LLC v. Russo, the Chief Justice provided the decisive fifth vote to invalidate Louisiana abortion regulations, writing that the regulations were on all fours with similar Texas abortion regulations invalidated by a 5-3 vote four years ago in Whole Womens’ Health v. Hellerstedt. Although the Chief dissented in the earlier case, he claimed that his vote in June Medical was dictated by stare decisis. In the key passage of his concurrence in the judgment, the Chief appealed to the Burkean virtue of epistemic humility:

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Edmund Burke and the Tragedy of Conservatism

Edmund Waldstein, O.Cist.

Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.

In his appalling invocation of the principle of stare decisis in concurring with the United States Supreme Court’s overturning of a Lousiana statute meant to call abortionists’ bluff on the claim that killing babies is “health care,” Chief Justice John Roberts quotes a famous passage of Edmund Burke’s Reflections on the deference due to the wisdom of the ages. Several commentators have protested at this abuse of Burke’s principle. Thus, Yuval Levin points out that Burke himself held that precedents should only hold when they fulfill certain conditions:

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Don’t Let the Sunshine Fool You

Pat Smith

Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.

The 5-4 decision in June Medical Services, L.L.C. v. Russo is bound to satisfy no one. On one hand, the conservative Chief Justice John Roberts voted with the four liberal Justices to overturn Louisiana’s abortion restrictions. On the other hand, Roberts’s opinion, which as the narrowest concurrence is at least presumptively the controlling opinion, narrowly decides the case and represents in some respects a repudiation of the approach taken in Whole Woman’s Health v. Hellerstedt. On the whole, though, it is hard to see this as anything other than a major defeat for pro-life activists. The scope of the defeat, however, may not be fully apparent. 

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