Interesting RFRA-ADEA case

[Scarberry, Mark]

Judge Winter's majority opinion does not quite say that RFRA displaces a
Free Exercise-based ministerial exception. It does say that RFRA displaces
judge-made common law that would limit application of the ADEA, including
what the court calls a 
"ministerial exception" that some courts had applied to limit application of
federal law. The court does not distinguish clearly between statutory
interpretation that would limit application of federal law and 1st Amendment
free exercise limits on federal law: "Whatever the merits of that
[ministerial] exception as statutory interpretation or policy, it has no
basis in statutory text, whereas the RFRA, if applicable, is explicit
legislation that could not be more on point. Given the absence of other
relevant statutory language, the RFRA must be deemed the full expression of
Congress's intent with regard to the religion-related issues before us and
displace earlier judge-made doctrines that might have been used to
ameliorate the ADEA's impact on religious organizations and activities." 

I read that to say that to the extent courts have interpreted statutes as
not governing employment of clergy so as to protect religious freedom (on
the assumption that Congress would not have wanted to interfere with
employment decisions regarding clergy), such statutory interpretation
approaches are displaced by RFRA, which is (1) constitutional as applied to
federal law and (2) Congress's last word on how it wants courts to deal with
federal statutes that interfere with religious exercise. That seems wrong to
me -- interpretations of particular statutes should not be eliminated by the
across-the-board RFRA -- but note that the court never comes out and says
that the Free Exercise clause would not be violated by application of the
ADEA to clergy employment cases. Rather, the court treats the ministerial
exception cases as being about statutory interpretation, and then says that
RFRA covers that territory now. 

There is certainly no holding that the Free Exercise clause does not
prohibit application of the ADEA to clergy employment cases. One might
expect that if there is a statutory ground for resolving a case in favor of
the church, such as RFRA -- or, on the court's view of it, the pre-RFRA
ministerial exception as a technique of statutory interpretation -- then
that ground would be used so that the court would not need to reach the
constitutional Free Exercise issue.

I recognize, though, that the court's failure to rely on a constitutional
ground that could decide the case even while remanding to the district court
for application of RFRA, could suggest that the court does not think there
is a constitutional issue at all here. Further, to the extent the court
treats pre-RFRA ministerial exception cases as statutory interpretation
cases rather than as Free Exercise Clause cases, the court in effect is
saying that there is not, as yet, authority for the proposition that the
Free Exercise clause requires a ministerial exception. But the court could
just be avoiding the constitutional issue in hope that the case can be
decided on statutory RFRA grounds. And note that the constitutional issue
could still be open for decision in the unlikely event that on remand the
district court (or on further appeal, the circuit court) were to conclude
that application of the ADEA here survives the test of RFRA. In fact, I
think on remand the district court would be free to consider the Free
Exercise clause, and to determine that it and RFRA both preclude application
of the ADEA. The district court might have to treat application of the Free
Ex. Clause as a case of first impression, given the circuit court's
interpretation of prior ministerial exception case law, but that would not
prevent the district court from finding that the Free Exercise clause
protects the church. I'd expect the church (actuall the bishop, I suppose)
to argue on remand both RFRA and Free Exercise, to obtain a favorable
judgment on both grounds, and to win any appeal on the RFRA ground without
the 2d Circuit reaching the Free Exercise issue.

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of SIDLEMAN at wi.rr.com
Sent: Wednesday, February 22, 2006 2:09 PM
To: religionlaw at lists.ucla.edu
Subject: Interesting RFRA-ADEA case


Very interesting decision out of the Second Circuit -- Hankins v. 
Lyght, No. 04-0743-CV, 2006 WL 354326 (2d Cir. Feb. 16, 2006).  Two
determinations, in particular, are noteworthy:

1) In a private suit for age employment discrimination (pursuant to an EEOC
right-to-sue letter), RFRA can be raised as a defense against the
(private) plaintiff.

2) RFRA displaces the ministerial exception, which the court suggests is
(was) ordinary federal common law.

Any thoughts on these rulings?

Scott Idleman
Marquette University Law School

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