Alan, I'm not predicting two more justices, let alone with any certainty, or talking about all lay teachers. I was only making the point that three justices adopted a broader standard than the majority, and the fact that one of them was Kagan is notable and makes the road to additional votes significantly easier than otherwise. My sense, from oral argument among other things, was that Roberts and Scalia would be easier fifth votes than Kennedy to go further than these facts. On your second point, in many religious schools, at least some lay teachers have a central role, not just some role, in communicating the religious message, as Lemon and many other cases have emphasized.
Finally, I agree that funding complicates things. I assume that government has authority to refuse to fund positions where discriminatory selection criteria operate (although, as you know, I think religious-belief selection criteria are a different case concerning religious organizations). I wouldn't turn that authority into carte blanche for funding restrictions. Would you say the mere fact that some lay teachers at a school would be classified within the ministerial exception would justify excluding all students at that school from participating in a "true private choice" voucher program, or (at the college level) from receiving state scholarships? Would you say this even if the school had not been shown to discriminate but merely referred to such teachers as "ministers"? ----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com ---------------------------------------------------------------------------- ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Alan Brownstein [aebrownst...@ucdavis.edu] Sent: Thursday, January 12, 2012 12:01 AM To: Law & Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Tom, I have long since given up trying to predict how Supreme Court justices will decide future cases (or to assume that there will be logical consistency or even intellectual integrity in all opinions.) But Justice Roberts clearly and repeatedly emphasizes the title, status, and acknowledged role of minister or clergy as significant factors in reaching his decision in this case. Why are you so confident that all of this language in the opinion is superflous? I agree that Alito and Kagan's concurrence provides more support for including some lay teachers in the exception. But even they say "What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities." The words "important role" and "a leader" arguably mean something different than "some role" and "a participant." Finally, of course, there is the question of how the understanding of who qualifies for the ministerial exception relates to the question of what positions the government can fund in religious institutions. Can the government fund the salary of teachers who play an important role as an instrument of their church's religious message and as a leader in its worship activities? If the answer to that question is "Yes" and it is also true that such teachers are enough like clergy in their religious functions to be included in the ministerial exception, would it follow that government can also fund the salary of clergy? Is it constitutionally permissible for the government to refuse to fund teaching positions at a religious school which refuses to hire African-Americans, women, and the disabled as teachers? Alan ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [tcb...@stthomas.edu] Sent: Wednesday, January 11, 2012 7:47 PM To: Law & Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan, I agree that the majority leaves open the issue of lay teachers. But since three justices take a broader approach to defining a minister, all you need for a majority in a later case is two more votes, and Roberts and Scalia seem reasonable prospects to me in a case that presents the issue. Thomas would defer heavily to the religious organization's characterization of an employee as a minister. And Alito and Kagan say that ordained or "commissioned" status isn't crucial, that the criterion is “positions of substantial religious importance”—including those “teaching and conveying the tenets of the faith to the next generation”--and that "the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones. What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities." I can see many lay teachers in seriously religious schools satisfying such a test. Kagan’s agreement with that standard is quite significant, as is her joining the Alito concurrence overall. Tom ----------------------------------------- _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
