SCOWIS to Consider Scope of Ministerial Exception

Earlier this fall, the Wisconsin Supreme Court granted a petition for review in Coulee Catholic Schools v. Labor and Industry Review Commission. The decision below is here. 

The case involves the scope of the ministerial exception to age discrimination claims under the Wisconsin Fair Employment Act. The complainant, Wendy Ostlund, was a teacher in a Catholic grade school who had been laid off. While certain of her duties were explicitly religious, e.g., she taught religion, led the students in prayer, prepared them for liturgies, and sometimes incorporated religious themes into secular subjects, most of her day was not spend in expressly religious activities.

The Court of Appeals held that the application of the exception turned on whether Ms. Ostlund’s primary duties were minsterial, i.e., did they consist of “teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship . . . .” The exception applies only when a position is “quintessentially religious,” because it is such a position that presents the prospect of making an “inroad on religious liberty” that is “too substantial to be permissible.”

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Appreciating Our Professors: Dan Freed

Yale Law Professor Dan Freed has undoubtedly been the biggest influence on my own career as a law professor. I had him for a year-long sentencing course during my third year — a course that was a descendant of the legendary Yale Sentencing Workshop that Dan helped to organize in the 1970’s. The Yale workshop brought together lawyers, judges, policymakers, law professors, and law students for intensive discussions about the sentencing process. A proposal emerging from the workshop caught the attention of Senator Ted Kennedy, who used it as the framework for a major sentencing reform bill. Eventually enacted (with several important modifications) as the Sentencing Reform Act of 1984, the Kennedy bill created the United States Sentencing Commission and the Federal Sentencing Guidelines.

By the mid-1990’s, when I had him as a teacher, Dan had become an outspoken critic of the Commission and the Guidelines. However, his course still reflected his faith in the value of bringing together people with diverse perspectives to talk to one another in a rational, mutually respectful manner about sentencing law and policy. Thus, we had a parade of fascinating guests in the course: judges, prosecutors, defense lawyers, probation officers, law professors, a sociologist, a Senate Judiciary Committee staffer, and others. Taught seminar style, the course included many lively, memorable conversations with our distinguished guests. The experience sparked what has become a long-term interest of mine in sentencing — a subject that I now teach and write about regularly. In fact, the paper I wrote for Dan’s course became my very first law review article. I’ve stayed in touch with Dan (now retired) since then, and have benefitted from his counsel at many turns.

Dan has been a model for me in several respects.

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Seventh Circuit Week in Review

The Seventh Circuit had two new opinions in criminal cases this week, with the government winning both.  (Since I started this Week in Review series three weeks ago, the government has gone 10-0 — an even better run than the Tennessee Titans have been enjoying.  Let’s hope the Packers don’t have the U.S. Department of Justice coming up on their schedule!) 

In United States v. Anderson (No. 07-3654), the court considered a bank robber’s request for appointment of an expert to evaluate his mental health.  The district court had denied the request, and the Seventh Circuit (per Judge Posner) affirmed.  Normally, we think of mental health evaluations in connection with the insanity defense or determinations of competency to stand trial, but Anderson wanted an expert to help him advance a sentencing argument, specifically, that he suffered from diminished mental capacity at the time of his bank robbery.  (And the fact that he did rob a bank provides prima facie evidence of diminished capacity: bank robbers are successfully apprehended at a much higher rate than most other criminals.  As I tell my students, if you want to steal money, there are a lot smarter ways to do it than to rob a bank!) 

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