Ave Maria Law School invokes ministerial exception inwrongfultermination suit

[Volokh, Eugene]

        I take it also that the freedom of expressive association argument wouldn't block Safranek's breach of contract claim; presumably, freedom of expressive association rights, like free speech rights, may be partly waived by contract.  An excessive entanglement with religion argument might block a breach of contract claim, however, if interpreting the contract would require considering religious doctrine.

        Also, the ministerial exemption has been treated by lower courts as presuming that any inquiry into the church's motives for firing would be impermissible; there's no need to show, for instance, that the church feels any obligation to discriminate based on race, sex, etc., or whatever the forbidden basis might be.  Thus, the Catholic Church would be protected against race discrimination lawsuits as well as sex discrimination lawsuits by its clergy, even if it denies that its religion requires it to discriminate based on race.  I take it that following Boy Scouts v. Dale, the protection of expressive associations' decisions is not absolute; the Boy Scouts, for instance, wouldn't be able to claim a defense against a race discrimination claim, at least unless they were willing to assert that their message supported such discrimination (and were able to support this with at least some argument about how its message did so, though some deference would be given to their own interpretation of their message).  It may well be that Ave Maria couldn't plausibly make any such assertion as to Safranek's noncontract claim, which is that he was terminated because he blew the whistle on allegedly illegal practices.

        Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of David Cruz
> Sent: Tuesday, June 30, 2009 10:56 PM
> To: stevesan at umich.edu; Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Ave Maria Law School invokes ministerial exception
> inwrongfultermination suit
>
> Writing only of Steve's Rumsfeld argument, the Court did there note
> that recruiters did not become a permanent part of a law school
> community.  That could distinguish a tenured or tenure-track faculty
> member (though I express no opinion herein about whether that
> distinction should lead to a different outcome).
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
> On Jun 30, 2009, at 9:51 PM, "stevesan at umich.edu" <stevesan at umich.edu>
> wrote:
>
> > 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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