There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability "to decide religious questions" (a.k.a. the "hands-off" principle, the "no religious decisions" principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that "autonomy" is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by "ministers," the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- "it was retaliation based on religious principle" -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about "disability to decide religious questions," but it has little force if one simply says, "Look, the idea that religious groups get to decide who will play important spiritual roles without state interference is very old, and state interference in the selection of clergy is at the core of what the Establishment Clause meant to forbid. If she's a minister, the state can't second-guess that decision in an employment discrimination suit. Period." At least to me, the majority opinion reads like the quote at the end of the last paragraph. It doesn't seem to hold out any possibility that some employment discrimination cases might be within the judiciary's competence to decide if only it could do so without getting into "religious questions." One could perhaps reach the same result by saying "Where it's a discrimination claim, religious questions will always be involved and thus the no-religious-decisions principle explains everything." Some panelists on Saturday appeared to express that view, and it might be correct. But it's striking to me that this argument is made only by Alito. The majority opinion seems to me closer in spirit to Rick's idea that maybe the hiring and firing of ministers is a matter of sphere sovereignty -- the state's authority to regulate here just runs out. I think this is also the approach Doug asked them to take, and it's pretty similar to what we used to call "church autonomy" back in the day. I understand the (good) reasons for some discomfort with the term, but I'm not sure the idea is all that different. (At least in this context, I'm not sure that the difference between "autonomy" and "internal church governance" amounts to much. Again, I agree with Marci and Doug that if this is "church autonomy," it doesn't reach outside employment discrimination.) John Taylor Professor and Associate Dean for Academic Affairs WVU College of Law
>>> Alan Brownstein <aebrownst...@ucdavis.edu> 1/11/2012 2:08 PM >>> While there is a lot of merit in what Eugene writes, it seems to me that he is identifying three arguments in support of the ministerial exemption: 1. It has strong historical roots. 2. There is a freedom of association dimension to it. 3. It is very circumscribed in its scope and involves far less judicial intrusion into executive and legislative decisions. All are valid points. But I'm not sure they adequately distinguish why this particular set of religious decisions gets constitutional protection while others do not. 1. Other religious exemptions have strong historical roots. 2. Many individual religious practices have an expressive dimension and communicate the beliefs and commitment of the believer. Is the right of expressive associations to choose their leaders more deserving of protection than the right of individuals and congregations to express their beliefs through religious worship and practice? And if the expressive associational dimension of religious groups choosing their leader is part of the foundation of this decision, one might argue that freedom of speech and association doctrine undermine the claim that organizations expressing a particular viewpoint (here, religious beliefs) should receive greater protection against government regulations than organizations expressing an alternative viewpoint (secular ideas). 3. One could draw other narrow zones protecting religious decisions and practice that limit judicial intrusion into legislative and executive authority. Let me be clear that I am not suggesting that the Court was incorrect in recognizing a ministerial exemption. (I think it was correct in doing so.) And it may be that the historical foundation for such an exemption is so strong that it can be distinguished from any traditionally recognized exemption for religious individuals or congregations. But I think there is more to this argument than the three very relevant points that Eugene identifies or that are captured by the terms "physical acts" and "internal church governance." Alan Brownstein -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, January 11, 2012 9:06 AM To: Law & Religion issues for Law Academics Cc: Eric J Segall Subject: RE: Hosanna-Tabor I agree with Doug on this, and want to add one item: The Sherbert/Yoder regime put courts in the position of having to evaluate a vast range of laws -- antidiscrimination laws, animal cruelty laws, assisted suicide bans, child labor laws, compelled testimony laws, copyright laws, drug laws, tax laws, traffic laws, zoning laws, and more -- in lawsuits brought by anyone who could sincerely claim a religious objection to their application to him (a group that might start small for each law, but might well grow as the availability of exemptions led people, subconsciously or deliberately, to assert convenient religious beliefs). The Smith majority rebelled (I think correctly) against having federal courts deciding in each case whether the government interest was "compelling" enough and whether the law was really "necessary" to serve the interest, which is to say against having federal courts constantly second-guessing the legislature's moral and practical judgment behind a vas! t range of laws. (This is also, I think, why the Court has provided extremely modest protection against content-neutral restrictions on expressive conduct, both imposing in O'Brien a much more deferential test than strict scrutiny and then holding in Rumsfeld v. FAIR that the protection would in any event only apply to a narrow range of conduct that was expressive on its own.) Hosanna-Tabor puts courts in the position of constraining legislative judgment only as to a narrow range of conduct: church selection of ministers. Despite the Court's point that the right is not the same as the right to freedom of association, this zone of judicial control is already not far from the zone where judges have to protect expressive associations' rights to choose leaders and members. What's more, this is a zone where there has been a much more solid and consistent history of immunity from governmental control. And in any event, it's just substantively quite a narrow zone. So while the private interest involved in Smith and Hosanna-Tabor may be comparable -- or in some Smith cases even greater -- and the government interest may often be similar (indeed, Smith applies to antidiscrimination laws themselves), the magnitude of the judicial intrusion in Sherbert/Yoder is much greater than in Hosanna-Tabor. And that, I think, rightly makes a big difference. Eugene _______________________________________________ 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.
