Ave Maria Law School invokes ministerial exception in wrongfultermination suit

[Douglas Laycock]

That's a related but quite distinct argument.  The argument in cases like FAIR and Dale is that the organization has a message, and the particular employee is countermanding or undermining that message.  It potentially applies to any position, but it requires a specific conflict between something the employee is saying or doing and some message the employer is trying to communicate.  

The argument in the mininsterial exception is that some positions are so sensitive, we can't let courts review employment decisions at all.  The risk of judicial error is too for such a sensitive position, and imposing a religious leader on a church that no longer accepts him as a leader is a First Amendment problem even if there was discrimination that would be actionable in other contexts.  This rule applies only to a narrowly defined set of positions, but with respect to that set of positions, the employer wins.  Nothing more is required.  

Even the FAIR and Dale argument is tough for universities to make out with respect to faculty, given the tradition, and accreditation requirement, of academic freedom.  The AAUP rules say that a religious umiversity can disclose in advance any mission-related limitations on academic freedom.  Courts have not clearly adopted those rules, although they can plausibly be read into employment contracts at many schools, and some forces within the AAUP have been trying to wiggle out of the religious limitation clause for decades.  The AAUP rules were jointly adopted with an association of colleges and universities, so unilateral amendments are of doubtful status.   

Quoting stevesan at umich.edu: 

> Didn't the Court reject a similar sort of expressive association 
> argument in Rumsfeld v. FAIR, the military recruiters case?  I seem 
> to recall it said that an asserted right by a law school not to be 
> forced to associate with people or ideas it found disagreeable was 
> simply too attenuated from the primary purpose of the First Amendment 
> in the higher education context: to protect a robust marketplace of 
> ideas. 
> 
> Steve Sanders 
> 
> Sent via BlackBerry from T-Mobile 
> 
> -----Original Message----- 
> From: Rick Duncan <nebraskalawprof at yahoo.com> 
> 
> Date: Tue, 30 Jun 2009 21:28:17 
> To: Law & Religion issues for Law Academics<religionlaw at lists.ucla.edu> 
> Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful 
>         termination suit 
> 
> 
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Douglas Laycock 
Yale Kamisar Collegiate Professor of Law 
University of Michigan Law School 
625 S. State St. 
Ann Arbor, MI  48109-1215 
  734-647-9713 

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