Volume 103 - Virginia Law Review

Waiving the Ministerial Exception

The ministerial exception provides that discrimination law does not apply to claims arising out of the employment relationship between religious institutions and their ministerial employees. While the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC suggested that this exception could be waived, others have argued otherwise. The pushback flows from a structural understanding of the Establishment Clause, which holds that the First Amendment creates a structural barrier between the separate sovereigns of church and state. On this understanding, the ministerial exception is simply a recognition of the fact that there are some areas in which the state has no power. But this is an incomplete analysis of waiver.

A complete analysis of waiver has both doctrinal and theoretical consequences. Doctrinally, a viable concept of waiver can change the litigation behavior of parties. Theoretically, waiver exposes a flaw in conceptions of church sovereignty. The commentary fails to fully define what it means to be a sovereign, ignoring the fact that some sovereigns, such as states, can waive their immunity.

This Note seeks to present a comprehensive theory for the waivability of the ministerial exception. This theory confronts the exception on all three of its theoretical footings: as part of the structural restraint imposed by the Establishment Clause, as part of the right to church autonomy extended by the Establishment Clause, and as part of a church’s right to shape its own faith protected by the Free Exercise Clause.

Moral Commitments in Cost-Benefit Analysis

The regulatory state has become a cost-benefit state, in the sense that under prevailing executive orders, agencies must catalogue the costs and benefits of regulations before issuing them, and in general, must show that their benefits justify their costs. Agencies have well-established tools for valuing risks to health, safety, and the environment. Sometimes, however, regulations are designed to protect moral values, and agencies struggle to quantify those values; on important occasions, they ignore them. That is a mistake. People may care deeply about such values, and they suffer a welfare loss when moral values are compromised. If so, the best way to measure that welfare loss is through eliciting private willingness to pay. Of course, it is true that some moral commitments cannot be counted in cost-benefit analysis because the law rules them off-limits. It is also true that the principal reason to protect moral values is not to prevent welfare losses to those who care about those values. But from the welfarist standpoint, those losses matter, and they might turn out to be very large. Agencies should take them into account. If they fail to do so, they might well be acting arbitrarily and hence in violation of the Administrative Procedure Act. These claims raise fundamental issues in legal and political theory about welfarism and its limits, and they also bear on a wide variety of issues, including protection of foreigners, of victims of mass atrocities, of children, of rape victims, of disabled people, of future generations, and of animals.

Are Speech Rights for Speakers?

Though it may sound surprising, there is a great deal of debate about whether speakers have free speech rights. Those who deny it say that the freedom of speech protects listeners, not speakers. Lately, these skeptics can point for support to First Amendment case law, which is expanding in ways that draw speakers’ rights into question. When search engines, Internet service providers, food producers, and so on are claiming immunity from regulation because they are speakers, the time has come to reevaluate speakers’ rights.

This Article does just that. It confronts hard questions about whether speakers have rights, including the argument that it is illogical for speakers to have rights. It shows that this is not the case. In fact, under the most plausible views of freedom of speech, speakers must have free speech rights.

Nevertheless, recognizing speakers’ rights is often inconvenient and difficult. Above all else, recognizing speakers’ rights has tended to distract from listeners’ rights, to less than salutary effect. These problems are real. But rights by definition complicate matters. The fact that they do so is not a reason to reject them.

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