More thoughts on the ministerial exception and the "two realms"

On a Law and Religion-related listserv, a colleague wrote -- commenting on the AALS "hot topics" panel dealing with the Hosanna-Tabor case -- that:

Although only mentioned once on the panel, I think the worldview at stake
>> was the “two realms” understanding—that the State and the Church operate
>> in separate domains.  But there are problems with this view.  First, we as
>> a society do not really believe it.  The King’s criminal law now reaches
>> into the churches, fortunately, and a capitalist society will always
>> ensure that ministers’ contracts are honored by churches, in court if
>> necessary (as the Court in Hosanna-Tabor predictably reserved).
>>
>> But neither do religious believers accept the two realms.  For separate
>> realms can also mean marginalization of religion into a private space.
>> The next time believers want a national motto with the word God in it, the
>> objection will be raised that State and Church are indeed separate, as the
>> ministerial exception seems to imply.

I wrote, in response:

These are deep and interesting questions.  For what it's worth, I don't think the only or best alternative to a "warranted for prudential reasons carve-out from the state's otherwise applicable authority" view of the ministerial exception is an "absolutist" "two realms" model.  I *do* believe that a whole lot of our history is the story of the working out of, evolution of, wrestling with, and attacks on the Gelasian "two there are" description, but part of that story is (obviously) the development of nation-states and constitutional liberal democracies.  As I see it (I think!), my colleague Bob Rodes' use of the term "nexus" to describe church-state relations is helpful, and maybe describes things both more accurately and more attractively than, say, "two [temporal] realms."  In any event, I think we can (and should) say that the older, not entirely supplanted model lives on in the idea that political authority is limited in (at least) two ways:  constitutionally (through structural features with which we are familiar and also through Bill-of-Rights-type explicit constraints) *and* by the (even now) reality that there are other legitimate authorities and societies, besides political authorities and societies.  This is not absolutism -- it does not absolutize either the liberal state or the "two realms" image -- and it's not even "autonomy" in a full-blown sense, but it is pluralism.  And, as Mark DeWolfe Howe suggested, way back when Kedroff was decided, our Religion Clauses and Constitution *can* (still) be understood in a way that's consonant with this pluralism.  The "ministerial exception" is usefully thought of, I think, a still-relevant manifestation of this pluralism (rather than, again, only a concession made by the state for the state's own reasons).  Figuring out what exactly the content and contours of this manifestation should be, in terms of legal doctrine and methodology, should be is, no doubt, a challenge, and reasonable people will disagree about it.  But, I think the Court was right to emphasize the *right* -- the authority -- of religious communities to select those who will "personify" their teachings and faith.