Amicus Brief of Antitrust Professors and Scholars, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

Authors

Barak D. Richman, Duke Law SchoolFollow
Harry First

Document Type

Brief

Publication Date

2011

Keywords

First Amendment, Rabbinical Assembly, rabbinical cartels, Sherman Act

Abstract

Professional associations of clergy have invoked the ministerial exception to claim immunity from the antitrust laws. In claiming immunity, these clergy feel entitled to construct cartel-like arrangements that, absent such immunity, would violate section 1 of the Sherman Act, 15 U.S.C. § 1 (2006). The question presented in this case characterizes the ministerial exception as a bar to most “employment-related lawsuits brought against religious organizations by employees performing religious functions.” Such a characterization leaves open the possibility that “religious organizations” could include professional associations of clergy, in addition to churches, religious schools, or other employers of clergy, and “employment-related lawsuits” could include Sherman Act challenges to cartel-like restraints imposed by professional associations of clergy that control an employment market, in addition to disputes between an employer and its employee. Accordingly, the doctrine’s parameters would benefit from a limitation and clarification. The ministerial exception arose from cases that protected hierarchical religious organizations (i.e. organizations with an “ecclesiastical head”) from government intrusion into matters regarding their employment of clergy. This Court has never applied the ministerial exception to all matters of employment, such as employment rules established by professional associations and imposed upon independent congregations. The proper scope of the ministerial exception should extend only to hierarchical organizations, including employers of clergy, and not to professional associations of clergy. The doctrine is designed to insulate certain employer-employee clergy relationships from 3 generally applicable laws. It is not designed to provide general antitrust (or other immunity) to a class of individuals and groups in all employment-related matters. Limiting the ministerial exception to employers and hierarchies does not injure the Petitioner’s case nor does it tilt the Court’s calculus of the facts in the matter at hand, but it greatly influences the ability of independent houses of worship in congregational denominations to seek and hire the clergy of their choice. Because a congregation’s selection of its religious leaders is so central to its religious mission, an overbroad ministerial exception would limit the religious freedoms of independent institutions that seek to hire clergy, thereby undermining the very objective the doctrine is designed to advance and expanding the ministerial exception beyond its judicial intent and constitutional logic.

Citation

Barak D. Richman & Harry First, Amicus Brief of Antitrust Professors and Scholars, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553 (U.S., June 2011)