I have thought much about the jurisdictional status of the ministerial exemption since SCOTUS decided (correctly)
Comments
Asher asks, “would turning the claim into a false-advertising claim somehow change standing for you?”
Possibly. The difference is between the two different claims is the difference in what harm has to be demonstrated in order to demonstrate standing. I agree with the court that under their current cause of action they haven’t demonstrated enough harm to merit standing. But under a different cause of action the plaintiffs might be able to do so.
Posted by: James | Sep 10, 2018 1:42:04 PM
I think it’s more about the defense being non-waivable, so not lost because the party did not raise it and is now willingly taking advantage of the district court’s choice to bring it up. Actually, the court found a waiver in the other direction–because the pastor did not object to the district court sue sponte granting summary judgment on M/E grounds, he had waived the argument on appeal.
Posted by: Howard Wasserman | Sep 8, 2018 5:11:32 PM
Just he who wants , can access the pdf format of the case , here :
http://www2.ca3.uscourts.gov/opinarch/173086p.pdf
Posted by: El roam | Sep 7, 2018 8:32:54 PM
Would turning the claim into a false-advertising claim somehow change standing for you? Your and the panel’s reasoning sounds like a merits concern, and a cause-of-action-specific merits concern at that.
Posted by: Asher | Sep 7, 2018 4:49:52 PM
@Asher. That opinion by Judge Smith is correct. As I see what is really going on here a false advertising claim masquerading as a product liability claim.
@Howard. i am unconvinced there is any such beast as a “mandatory merits defense.” Fundamentally the right to have a defense is the right to defend on the grounds of one’s choosing, not to have one’s defense foisted on oneself by the court.
Posted by: James | Sep 6, 2018 11:29:37 PM
Take a look at today’s Third Circuit opinion on standing:
http://www2.ca3.uscourts.gov/opinarch/172980p.pdf
Posted by: Asher | Sep 6, 2018 7:07:59 PM
Interesting , but one should not forget , that the case of Hosanna , was in fact a civil action , not criminal proceedings , and too many times , very thin line , separates them both . Beyond it , the case in Hosanna , was based upon the idea or notion or fact in fact , that she was in fact a minister ( contrary to the circuit opinion ) as such , the precedent is implied indeed ( wrongly , because that fact , had to raise more justification or suspicion concerning the pretext for firing her , for it does imply , that the court intervenes , not in theological discretion , but rather , what looks more as a pretext . For , not the theological qualification of the person was the issue , but rather , seemingly , more external civil issues ).
That is to say , that based upon that case of Hosanna , even if it has structural basis and thus cannot be waived , that is not to say , that the precedent , should be implied , with no exception to the exception .
Thanks
Posted by: El roam | Sep 6, 2018 2:15:45 PM