Caroline Corbin has a third post at Concurring Opinions arguing against the ministerial exception to anti-discrimination laws. The post makes a couple of claims. One is that many discrimination suits do not raise religious questions:
For example, imagine a church fires a teacher who has an extramarital affair, arguing that she violated the church’s proscription against sex outside marriage. In a sex discrimination case, the issue of whether sex discrimination has occurred depends on whether the school applies the religious policy equally to male and female teachers. The court will not have to resolve any doctrinal dispute or otherwise evaluate the religious merit of the proffered reason: no one questions the school’s religious belief that sex outside of marriage is forbidden.
I still think this doesn't acknowledge the real-world problem of plaintiffs arguing "pretext." The facts above are simple and clean, but most real cases are more complicated. Either the church's proferred reason for dismissing the plaintiff is more nuanced--an asserted judgment call about his or her suitability or performance--or the church tries to distinguish other instances (say, the male ministers who weren't dismissed) on some ground. Even in the case of the extramarital affairs, for example, if the church says that other ministers were sufficiently repentant while the plaintiff was not, the court now faces religious questions: is there a difference concerning repentance in the two situations; did the church have a reason for starting to emphasize repentance more than in the past; etc.
There are hypotheticals--and some cases--that don't raise religious questions. But one ground for the ministerial exception is that most real-world cases will involve some such question. To some extent it's a prophylactic rule, I suppose, but that doesn't make it unjustified.
Second, Prof. Corbin's premise is that "no religious determinations by courts" is the only ground for the ministerial exception. And in her argument, "no religious determinations" operates as a freestanding, disembodied principle. I think that's wrong. The rule against religious determinations, while correct, is part of a broader notion of church-state separation as autonomy of religious life from government involvement. If the rule is not embedded in such a broader vision, I don't see why we should care about it. Overriding religious organizations' decisions on clergy is, at least presumptively, a violation of that broader vision of separation/autonomy.
Focusing only on "no religious determinations," and treating it as a stand-alone rule, leads Prof. Corbin to conclude that it's the ministerial exception, not the involvement of government in a clergy dispute, that violates the Establishment Clause--because to apply the exception, the court has to make a religious judgment about who is a "minister." Of course, the same is true any time the court has to define what's "religious" and therefore falls under the Free Exercise or Establishment clauses. To me, this shows that the "no religious determinations" principle can't stand alone; taken by itself, it makes the Religion Clauses themselves unconstitutional. The "no religious determinations" rule works together with other principles against government involvement in religious life--like the principle that government should not decide who will serve as clergy. It does not work by itself and in conflict with those other rules.
