The Ministerial Exception Case — And Faculty Arguments in the Supreme Court
Presented May 4, 2012 at the Alumni Board and Council Luncheon
Winning a newsworthy case in the Supreme Court suddenly makes you a very popular guy. Everyone wants to hear your stories. It’s important to understand that it won’t last long. And that all those people are not really interested in you; they’re interested in the court. And that winning a case in the Supreme Court these days may have only a little bit to do with you, and a lot more to do with what the justices wanted to do anyway, before they ever heard from you.
Even so, I work on a Supreme Court case as though the outcome entirely depends on me, as though any little detail might matter, so that every argument, every sentence, every word, must be as perfect as I can make it. I get a little bit obsessive-compulsive, and that’s not a bad thing.
I’ve won three cases in the Supreme Court in my career, and I’ve lost a case in the Supreme Court. And as every litigator knows, it’s a lot more fun when you win.
Latham and Watkins just agreed to do a case in the Supreme Court, and their fee agreement was disclosed under a state Open Records Act. Cert was already granted, and their side won in the court of appeals. So one brief and one oral argument — for a flat fee of $977,000.
My fee was much flatter than that. We did a cert petition and a reply, a merits brief, a reply brief, and an oral argument, for a flat fee of zero. Maybe I need a different business model. So I want to talk a bit about the case, and then more generally about the role of this law faculty in the Supreme Court, and finally about the benefits of the business model I actually have.
The Ministerial Exception Case
The case was Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. I represented the Church; the Solicitor General’s office represented the EEOC. The aggrieved employee was also a plaintiff in the case, represented in the Supreme Court by a former Solicitor General, Walter Dellinger.
The case involved a rule known as “the ministerial exception,” which says that persons in positions of religious leadership cannot sue their employers for employment discrimination. The Supreme Court had never decided one of these cases, because the lower courts were unanimous on the point.
This created a castle-in-the-air-problem. The court granted cert to resolve a circuit split over who counts as a minister, when it had never decided whether that mattered. Neither side in the cert papers raised the slightest question about the existence of a ministerial exception. Formally, the posture of the case was to assume the ministerial exception, and to argue about its boundaries.
But I didn’t believe the court would decide the case that way. If they didn’t think there should be a ministerial exception, we were going to lose.
So we had to brief the existence of the ministerial exception, but we didn’t want to give up the question presented and admit that the whole exception might be at issue. So I came up with a fig leaf: the boundaries of the exception must be determined in light of the reasons for the exception, and here are the reasons. The academic critics of the ministerial exception said that its foundations had been swept away by a case called Employment Division v. Smith, so our explanation of reasons had a long segment distinguishing Smith.
I got resistance from my team of younger lawyers at the Becket Fund for Religious Liberty. They were very good, but I always thought they were too optimistic. They wanted to brief the case as though the ministerial exception really wasn’t at issue. They said, “Don’t act like we’re worried about that.”
So here is one decision that I will take personal credit for. After two rounds of them tearing my draft apart and doing it their way, and me putting it back together my way, I pulled rank. I said that someone had to make final decisions when we disagreed, and as the Counsel of Record and the guy with the most gray hair, I was that someone. We would do it my way.
And of course, once the plaintiffs filed their briefs, the exception was fully at issue, and their argument was Smith Smith Smith Smith Smith.
The Oral Argument
The oral argument went better for us than it went for them, but it didn’t go all that well for us. The first question to me was Justice Sotomayor asking about the sex abuse cases. That was not a friendly question.
Justice Alito immediately jumped in to help me. Walter Dellinger complained later that Alito and Scalia should have been sitting at counsel table with me. And he had a point.
But Justice Kennedy’s questions were clearly hostile. Justice Ginsburg’s questions were hostile. Justice Breyer had an idiosyncratic theory that would lead to our losing on remand. That was four.
Chief Justice Roberts was more promising. Walter Dellinger told the court that there should be no rule based on a category of employees. But if there were to be such a rule, the category should be limited to employees who have no important secular duties. And Roberts pounced: “That can’t be the test. The Pope is a head of state carrying out secular functions, right? Those are important. So, he is not a minister?”
I figured that if we had Scalia and Alito and Roberts, we probably had Thomas, who of course said nothing. So it was 4 to 4 by my count, and that left it up to Justice Kagan.
She had asked the first question to Walter: “Could you assume for me that there is a ministerial exception that’s founded in the Religion Clauses, and tell me who counts as a minister, and why this commissioned minister does not count as a minister?”
That sounded pretty good for us. Sometimes a question like that signals a vote. But sometimes it means, tell me how I can write this difficult part of the opinion for you.
I was cautiously optimistic. Walter was more certain; he took her to be telling him that she had counted the votes, and that there is a ministerial exception founded in the Religion Clauses.
He was right. And it wasn’t 5-4; it was 9-0. No one who heard the argument could conceivably have predicted a unanimous decision.
Unanimous opinions are often narrow. This one is sweeping. There is a ministerial exception. It is required by the Free Exercise Clause, and it is independently required by the Establishment Clause. The court defined “ministers” broadly, to include priests and rabbis and imams and employees like the plaintiff in our case, with mixed religious and secular duties. These ministers cannot sue their churches for employment discrimination.
And the court said that the church need not explain its decision, because its reasons are none of the court’s business. The selection and retention of ministers is entirely the responsibility of the employing churches. That had been the other point of disagreement within our team. I had resisted pressure to concede that to invoke the exception, a church must state a religious reason for its employment action. That would have led to litigation over what reasons count as religious, and the whole exception might have begun to unravel.
Now I know that not everyone in the room thinks this is a great decision, and I’m not going to reargue it here. Let me just say that this decision is about separation of church and state in its most fundamental sense. Churches do not appoint the officers of government, and government does not appoint the officers of churches. And that means that judges and juries cannot review a church’s decision to discharge a minister, or order the church to take that minister back.
Other Faculty Arguments
Of course, I am not the only member of this faculty to argue a case in the Supreme Court. I have identified 30 oral arguments in the Supreme Court by members of this faculty, and I probably haven’t found them all. And there is a much larger number of cases with Virginia faculty on the brief, or on amicus briefs, or on cert petitions. I made no effort to count those, but I will note a few examples.
For starters, nearly the whole faculty except for me clerked for a justice. When I discovered that, I wondered how I ever got hired. But then I remembered. (For anyone who doesn’t know, the rector called the dean and said that "The new president of the University was married to a law professor. You’re going to hire him.")
As best I have been able to determine, the first UVA law professor to appear in the Supreme Court was Garrard Glenn, who filed an unsuccessful cert petition in 1930. Professor Glenn had a long and distinguished career both in practice and in teaching.
Paul Summers, a part-time lecturer who taught Land Use at the Law School, was also the city attorney for the city of Charlottesville. He filed an amicus brief for the city in Griffin v. County School Board in 1964. The county in that case name is Prince Edward, where they closed the schools for five years to avoid desegregation. Charlottesville did not defend what was going on in Prince Edward, but it did defend a statewide program of scholarships for K-12 students to attend nonsectarian private schools, or public schools outside their district. These scholarships would pay up to the per capita cost of education in the student’s own district, and Virginia faculty apparently used them to help pay for local private schools and for distant but prestigious boarding schools. That remarkable fringe benefit no longer exists.
I think that Summers did not write this brief himself. He hired a K Street lawyer from D.C. who appears to have been the lead counsel.
Dan Meador made the first faculty oral arguments. He represented three prisoners in habeas corpus cases in the Supreme Court in the 1960s, and remarkably, won all three of them. Albert Turnbull argued and lost a habeas case, Warden v. Hayden in 1967.
Dick Howard successfully argued Grand Rapids School District v. Ball in 1985, establishing the high-water mark of restrictions on government aid to religious schools.
George Rutherglen successfully represented a prisoner in a habeas case in 1989, in Nietzke v. Williams.
John Jeffries represented the university in Rosenberger v. Rector and Visitors of University of Virginia in 1995. If a university uses student activity fees to subsidize a wide range of student publications, does it have to include religious publications in the subsidy? Yes it does, 5-4, despite John’s innovative argument to the contrary.
John was also on the merits brief in Pulliam v. Allen in 1984, successfully arguing that a litigant who gets a civil rights injunction against a state judge is entitled to attorneys’ fees, notwithstanding judicial immunity to damages.
The Law School established a substantial and continuing Supreme Court practice in 2006, with the founding of the Supreme Court Litigation Clinic. The clinic is staffed by students, by tenure-track faculty, and by lecturers who also maintain a private practice.
The clinic can promise its students they will get to work on cert petitions. It cannot reliably promise that they will get to work on merits briefs. But its record is remarkable. In its six years of existence, the clinic has handled eight cases that were granted, briefed and argued. And it has won five and a half of those cases — a half because in one case, the court split the difference.
The students draft briefs and cert petitions, but any oral arguments have to be done by members of the Supreme Court bar. Dan Ortiz and Jim Ryan have argued cases for the clinic, and two lecturers, Mark Stancil and John Elwood, have argued cases for the clinic.
The clinic faculty also brings to bear its experience of Supreme Court litigation outside the clinic. Stancil and Elwood have argued seven Supreme Court cases in their private practices. Professor Toby Heytens argued six cases for the United States, while on leave from the faculty to serve in the Solicitor General’s office. And of course members of the clinic faculty have worked on briefs in many more cases than they have argued.
The clinic is a remarkable institution, and frankly, I don’t know how they do it. I know how much time my team spent to litigate one case in the Supreme Court. I don’t know how the clinic does multiple cases and cert petitions at the same time, in unrelated areas of law, taking time to fully involve the students in the effort. But they do, and they have greatly enriched the curriculum.
The Range of Motivations
Different professors have had very different reasons for doing these cases. Garrard Glenn’s 1930 cert petition appears to have been a bit of business left over from his New York law practice. Similarly for Paul Summer, the Charlottesville city attorney. He had a client quite independent of his being on the faculty.
I have not talked to Dan Meador about his three habeas cases. Dan’s teaching and scholarship were not principally in criminal law or criminal procedure. He may have taken those cases by appointment, as a public service; that is how George Rutherglen got his habeas case. Or Dan may have volunteered for habeas cases to get the experience of arguing in the Supreme Court.
John Jeffries was putting his scholarly expertise to the service of the institution when he represented the university in Rosenberger.
The lawyers in the clinic have to hustle cases, and take the cases that are offered, just like a lawyer working to make the overhead. Their currency is not fees, but work for students. The only thing their clients have in common is that they are not able and willing to pay for Supreme Court litigation. The clinic has represented criminal defendants, consumers, a state agency, a municipality, and a small-town chief of police. The clinic is not in a position to screen its cases for ideology or subject matter.
Dick Howard in his religious school case, and me in my religious liberty cases, were representing individual clients but also arguing for causes that we believed in. I want to talk a bit about my own business model, and how my litigation relates to my academic work.
My Personal Experience
The most important thing about my approach to litigation is that I have a day job. That fact is both liberating and constraining.
It is liberating to have a salary from the University of Virginia, so that I never need to consider money when I accept or refuse a case. I am free to turn down any case if I do not fully agree with the position to be argued.
This is an intellectual luxury that few lawyers have. Lawyers in for-profit firms generally have to argue what clients will pay for. Lawyers in public-interest organizations generally have to argue for what their donors will pay for.
Having a day job is also constraining. Most obviously, it constrains in terms of time. My first responsibility is to the students who pay tuition, to the donors who make gifts, and to faculty colleagues who count on me to pull my weight in the intellectual and administrative work of the Law School. I do not write all my briefs on evenings and weekends, but I am at my computer many evenings and many weekends. I have never worried about how much time I spend litigating as long as I pull my weight as an academic, but doing both means many long hours. And it means sometimes turning down cases because I’m overcommitted and the day job comes first.
I represent amici far more often than I represent parties, partly because the lawyer who has the case often doesn’t want to give it up, but also because representing the party is a much bigger time commitment. An amicus doesn’t have to master the whole case; he can focus on a specific assignment. An amicus brief is more like a moot-court exercise than like litigating a case.
I try to stay out of trial courts, because I am missing important parts of the skill set, and because it is impossible to control the time commitment in trial courts. An appeal is a much more focused and defined process. Being a full-time academic is not consistent with an extensive trial practice.
Not only do I turn down cases that I don’t believe in, but I decided early on that I would make no argument to a court that I would not be willing to make in a law review. The roles of advocate and scholar are not the same—of course I understand that—but I have tried to apply the same standards of intellectual honesty in both roles, and to limit my advocacy role accordingly.
This personal commitment arose from a set of related judgments. I have no desire to argue for positions I don’t fully believe in. I am trying to nudge the law in what I consider to be the right direction. I thought there must surely be benefits to a reputation for briefs that are candid, honest, and unexaggerated. And I thought that I could not allow my briefs to be inconsistent with my scholarship, lest one be cited against the other in ways that were embarrassing to me or harmful to a client.
This is another way in which having a day job as an academic constrains me as an advocate. Opposing counsel sometimes search my writings electronically, looking for things they can cite against me. They very occasionally find something they can quote badly out of context, but none of them has found a genuine contradiction.
There is one more point about the briefs I file. I genuinely believe in religious liberty for all — for intense believers and committed nonbelievers and everyone in between or off to one side. In my scholarship I warn against defending religious liberty only or mostly for people on your own side of the culture wars.
So I have represented the Missouri Synod Lutherans, the Catholic Archbishop of San Antonio, an Afro-Caribbean religion that sacrifices small animals, and parents and students objecting to Christian prayer at Texas high school football games. In the Supreme Court’s 2010 cases, I filed an amicus brief opposing a government cross and another supporting the Christian Legal Society. In the court’s 2004 cases, I filed a brief arguing that that theology majors were entitled to state scholarships, and another arguing that “under God” in the Pledge of Allegiance is unconstitutional — but offering ways to limit the doctrinal damage if they upheld it anyway, as I assumed they would.
There is no interest group that I could represent and be allowed to take these positions, and it’s hard to imagine a law firm where I could do this either. This kind of independence is another benefit of having a secure academic position as a day job.
This litigation has had enormous benefits for my teaching and scholarship. It enhances my credibility with the students, and it enriches what I can teach them. Every case is a learning experience. Of course I learn from thinking through the issues so carefully. But I also get a much better sense of the facts in the real world. And I learn from interacting with the other lawyers involved in these cases. Often these lawyers are activists with worldviews radically different from mine. I now understand their positions far better than I could ever have understood them from the law library.
So for me, appellate litigation in the fields I teach and study has been part of a virtuous cycle. My scholarship makes me a better advocate; my litigation experience makes me a better lawyer and a better teacher and scholar. The University of Virginia Law School provides an intellectual environment in which law teachers who can find the court house are still valued and respected. And for that, I am very grateful.