ministerial exception

I have not yet had a chance to read Greg Kalscheur's article, but I'll just offer a quick comment. I know that is hazardous, but why should that stop me. (On March 21, 2008, the Second Circuit decided a case on this issue that appears to take the subject matter jurisdiction (smj) approach advanced in the article. Here is a link to the Second Circuit case.) I want to think this through again after reading the article, but the smj approach seems wrong. In the Second Circuit case, the plainitiff brought a Title VII claim and surely the federal courts have smj over those claims. It may be that the claim fails (e.g., because the employer doesn't have enough employees to be covered by Title VII) but that doesn't mean that the federal court didn't have smj over the Title VII claim. The claim would fail on the merits.

I am sure that Greg is making a broader point about whether the courts ought to intrude on the matters raised by the ministerial exception, but I think it confuses things (here I am speaking as a Civil Procedure teacher) to think of this as a matter of subject matter jurisdiction. The distinction between the merits and subject matter jurisdiction is common, but we shouldn't extend the confusion into an issue (ministerial exception) that is complex enough. The constitutional basis for the ministerial exception, if there is such a basis, should be front and center and we shouldn't be distracted by calling the matter one of "subject matter jurisdiction."

Richard M.