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 ----------------------------------------- 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) 962-4996 E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu> SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice> ---------------------------------------------------------------------------- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, January 11, 2012 1:47 PM To: Law & Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Rick, As to lay teachers at religious schools, the Court said, “We express no view on whether someone with Perich’s duties would be covered by the ministerial exception in the absence of the other considerations we have discussed.” I thought that left open the issue of lay teachers at religious schools. Have I missed something here? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Wednesday, January 11, 2012 11:34 AM To: Law & Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Dear Marci, I guess not, but I think people usually think of “clergy” as ordained, or as otherwise officially designated. I think the opinion constitutionalizes an exception that covers a broader category of “ministers” (including, of course, many lay teachers at parochial schools, who are not usually referred to as “clergy.”). Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 _______________________________________________ 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.
