More Embarrassment from Ave Maria Law
July 10, 2009, 11:52 am
Posted by Eduardo Peñalver
From the National Law Journal:
In the latest twist to the two-year-old suit filed in state court by a three former professors, Tom Monaghan, the school’s founder and financier, filed a motion last month claiming that the law professors are “ministerial.” Therefore, he argues, because the school is a religious institution, the administration over these minister-professors is exempt from civil trial court under the “Establishment and Free Exercise of religious clauses of the First Amendment.”
Monaghan also claims that the institution is eligible for “ecclesiastical abstention,” requiring courts to “abstain from inquiring into, or interfering with, governance of the religious institution.”
Mr. Monaghhan seems to have the common Catholic perception of what a university is for. Considering AAUP’s list of censured Catholic institutions, however, it seems that many in the Church agree with him.)
Where is Cardinal Newman when we need him?
Unless Ave Maria is preparing candidates for degrees in canon law—(which would exempt the
school under the provisions of the First Amendment), Monaghan is on shaky ground. Otherwise, Ave Marie’s civil law school’s future will be more twisted than the Tort Classes that are taught to L-1 students.
That’s really funny. He’s saying lawyers are priests. I think he admits women to law school, so women, on this view, would be priests too.
Cathleen Kaveny,
Clearly any women law students at Ave Maria would merely be members of the diaconate. This is still a radical move on Monaghan’s part, however, and a further moving testament to Ave Maria Town’s continuity with the social life of the early Church.
I wonder if at Ave Maria Law School Masses they consecrate pizza bread?
There are two parts to this argument, the first is that the professors are ministerial. The second is that the institution has an ecclesiastical exemption from judicial oversight. I imagine that the second will be more thoroughly litigated, and that there is substantial case law to argue. The first argument, however, seems novel. It also is preposterous.
The Catholic Church and other churches have operated universities for a very long time. There has never been any suggestion that professors were ministerial simply on account of their employment by a Catholic institution. The very definition of minister is disputed in Catholic circles these days, but there are clearly examples where non-clergy are considered ministerial. However, these are all examples of lay people carrying out pastoral works normally the purview of clergy. School teachers, nurses, and others in the front lines of Catholic institutions are professionals, not ministers.
I would also point out that people cannot become Catholic ministers except by delegation of a bishop or another juridic person under canon law. Ave Maria is not a juridic person.
It also seems to be a matter of common sense that a person does not become a minister without being aware of it. Some comprehension that their role is somehow ministerial is essential if Ave Maria’s assertion is to be upheld.
As a theologian, I certainly understand my academic work to be a vocational ministry, however I would consider theologians to be in a unique situation within the academic profession. I think that Ex Corde Ecclesiae would agree.
The law involving “ministerial exception” is not as clear as many of the previous posters suggest. Courts have found that it does not necessarily just cover ordained clergy. The U.S. Court of Appeals, 2nd Circuit, has said that it has protected music directors, press secretaries, and the staff of a Jewish nursing home. In the latter case, courts found that “predominantly Jewish nursing home” could not be sued by a kosher food inspector who was not a rabbi, clergy or “ministerial” in any practical sense. So, from a legal perspective, the argument is not as crazy as it might appear at first blush.
Further to this, there are more details in a New York Times article http://www.enlightenthevote.com/news/articles/NYT-WFA-100906.pdf.
The article notes that “judges have applied the exception to dismiss cases filed by the press secretary at a Roman Catholic church, a writer at the Christian Science Monitor, administrators at religious colleges, the disgruntled beneficiaries of a Lutheran pension fund, the overseer of a kosher kitchen at a Jewish nursing home and the co-founder of Focus on the Family, run by the conservative religious leader James C. Dobson. Court files show that some of these people were surprised to learn that their work had been considered a ‘core expression of religious belief’ by their employer.”
Ave Maria’s claim, and the plaintiff’s reply, is available in full-text PDF at http://avewatch.com/?p=136
Respected canon lawyer Edward Peters called it “laugh out loud ridiculous” to claim that law professors at a Catholic school are “ministers” of the Church. See
http://www.canonlaw.info/2009/06/if-safranek-et-al-were-professor.html
Catholics are not Protestants, folks. We do not enjoy the ability to simply call ourselves a “minister of the Catholic Church” simply because that is our personal “belief”.
Tom Monaghan is trying to use the Church to avoid accountability in civil court while, simultaneously, avoiding any obligation to canonical/diocesan authority.
Vatican Ii says that the laity are part of the priesthood of the Church. Hmmm.
Seems we need some distictions here.
K. Beringer: Canon Law and how courts interpret the U.S. Constitution really don’t have much to do with each other, do they? The case isn’t being heard by a Vatican tribunal and Edward Peters, judging by his post, has no clue about how U.S. courts treat ministerial exception.
…so would the “ministerial exemption” apply to Dr.s at Catholic hospital refusing to perform an abortion, or at a nursing home refusing to terminate?
Sorry, I read this and I just shake my head! Both for the US system of law & the Church. Frivolous waste of time & money. We have a Dominoes in town. Haven’t spent a dime & don’t intend to!
Grouch – Why don’t you put up your credentials and let us compare them to Dr. Peters’ credentials when it comes to civil and canon law? Ed has a JD in addition to being a canon lawyer. You cite a New York Times reporter’s comments on Protestant cases (real credible that NYT).
Those of us (like Dr. Peters) who have actually taken the time to read the Monaghan case filings understand that Ave Maria School of Law is a private entity that is not subject to any Church authority/governance. Its law professors have no recognition whatsoever by the Church as Catholic “ministers” and have absolutely no ecclesiastical authority given by the Church. The Diocese has no role in evaluating the qualifications, performance, and contracts of the professors. If they are “ministers”, then they are ministers of Tom Monaghan but clearly not of the Catholic Church. A civil court would be very interested in an amicus brief from the Bishop of Venice stating that, contrary to Monaghan’s claim, the law professors are not ministers of the Catholic Church and have no ecclesiastical authority. A civil court is not bound to accept every claim of “ministerial exception”; it will evaluate the merits of the claim, but maybe you didn’t know that.
Okay, let’s try this as a thought experiment (and I have not read the case file Suppose that Mr. Monahan, for purposes of American law, started his own American religion= “The Catholic Church of Ave Maria.” In CCAM, all law professors –all professors –were ministers, subject to his direction as Supreme Abbot. The ultimate purpose of CCAM, however, is to support the religious mission of the Roman Catholic Church, including its rules of ordination. So a minister in the CCAM also would or would not be a Roman Catholic priest or deacon according to the rules of the RC church.
Is there any reason, under American constitutional law, that Monahan couldn’t start his own religion in this manner, using it as a support religion for the RC Church?
Beringer: So under what church authority is a “predominantly Jewish nursing home?” The point of what I posted is simply that courts have found that the ministerial exception applies is precisely the cases where people who would not normally be considered “ministers” of any church (and we’re not talking about Protestant “ministers” here) and who have no ecclesiastical authority have filed claims in civil court. And there’s no need to be insulting. I never said a court was bound to accept Monaghan’s claim or any other’s — only that the claim might have some merit and is not as crazy as it might first appearl.
In previous post I meant to write “applies in” (not is).
The merits of a legal claim are to be understood in the claim’s actual context. I am pointing out that context. Respectfully, Grouch, Commonweal has the headline correct. It is an “embarrassment” to try to claim that the law professors of this independent private school are ministers of the Catholic Church. Further, it is a destructive claim invoked in a desperate maneuver to get out of a civil employment contract made between the school and the professors. It undermines legitimate uses of the exception by setting bad civil court precedent and weakening real ministerial claims, particularly since the professors were not dismissed for anything to do with the faith or the Church.
Please, Beringer. The context is that the law school is defending itself in a civil suit brought against it. Its lawyers would be remiss in not pursuing every avenue at their disposal. There is unquestionably basis for the law school’s claim and in most of those civil cases where the plaintiffs lost because of “ministerial exception” or “ecclesiastical abstention” the plaintiffs’ cases had nothing to do with faith per se. What you seem to be steadfastly ignoring is that the civil courts don’t care whether the claims themselves involved religion or whether the employees in question qualify as “ministers” in the way we would normally think of the term. The school does NOT claim that the law professors are ministers of the Catholic Church in the traditional sense, only that they qualify as “ministers” under the standard set by previous court decisions.