Amici-professors' arguments adopted in Seventh Circuit en banc decision in First Amendment case

Client(s) Esbeck, Carl H., et al. as amicus curiae

Jones Day submitted an amicus brief on behalf of a group of professors in support of the defendants-appellants in an appeal concerning the proper scope of the First Amendment’s ministerial exception. The en banc Seventh Circuit held that the “ministerial exception” applies to hostile-work-environment claims; it was the first appellate decision to so hold since the Supreme Court’s decision in Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020). The Court based its decision on church autonomy and the right of a church to select, control, and discipline its leaders.

The amicus brief explained that the “ministerial exception” is rooted in avoiding government entanglement with internal church affairs and maintaining the autonomy of religious organizations over their personnel, internal affairs, and doctrine. The brief further explained why the doctrine, which arose in the context of statutory claims alleging a discriminatory hiring or firing decision, also applies to claims alleging a discriminatory hostile work environment. During the oral argument, several judges cited and discussed this amicus brief. The Court’s opinion relied on and cited this brief, tracking virtually every argument raised in the brief.

The professors, who are among the foremost scholars of the Religion Clauses of the First Amendment, include Robert F. Cochran, Jr., of Pepperdine University School of Law; Teresa Collett, of University of St. Thomas School of Law; Carl H. Esbeck, of University of Missouri School of Law; Richard W. Garnett, of University of Notre Dame Law School; Michael P. Moreland, of the Charles Widger School of Law at Villanova University; Robert J. Pushaw, of Pepperdine University School of Law; and Eugene Volokh, of UCLA School of Law.

Sandor Demkovich v. St. Andrew the Apostle Parish, et al., No. 19-2142 (7th Cir.)