It seems to me that part of the problem with the framing of the distinction between Smith and Hosanna-Tabor is that "physical acts" vs. "internal governance" does not well describe in parallel the concerns of the state in both cases. Internal governance is what Hosanna Tabor protects for religious institutions. But if we consider "physical acts" (as inapt as that characterization is), that is really about the nature of that which concerns the state. It goes to the harm the state is trying to redress. So, here, the counterpart to physical acts (peyote ingestion in Smith) should be disability discrimination in employment. Of course, the nature of that employment was religious, which is why First Amendment rights trump the state's concerns here. But the dignitary and economic harms Cheryl Perich alleged are not obviated by the fact that her employment was as a religious leader.
David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On 1/11/12 8:42 AM, "Douglas Laycock" <dlayc...@virginia.edu> wrote: >Is anyone convinced by the Court's distinction of Smith? Well actually, >all >nine Justices were convinced, all twelve federal circuits have been >convinced, and twelve state supreme courts have been convinced, with none >going the other way. "Physical acts" is not the best label for the scope >of >Smith, but the basic distinction between internal church governance and >other matters goes all the way back to Locke. It is embedded in a line of >Supreme Court cases that long pre-date Sherbert and Yoder and that >peacefully co-existed with Reynolds v. United States (a case refusing >religious exemptions). > >Douglas Laycock >Robert E. Scott Distinguished Professor of Law >University of Virginia Law School >580 Massie Road >Charlottesville, VA 22903 > 434-243-8546 > > >-----Original Message----- >From: conlawprof-boun...@lists.ucla.edu >[mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall >Sent: Wednesday, January 11, 2012 10:40 AM >To: Con Law Prof list >Subject: RE: Hosanna-Tabor II > >This is the sum total, after a quick read, of what the Court said about >Smith: > >"But a church's selection of its ministers is unlike an individual's >ingestion of peyote. Smith involved government regulation of only outward >physical acts. The present case, in contrast, concerns government >interference with an internal church decision that affects the faith and >mission of the church itself. See id., at 877 (distinguishing the >government's regulation of"physical acts" from its "lend[ing] its power to >one or the other side in controversies over religious authority or >dogma"). >The contention that Smith forecloses recognition of a ministerial >exception >rooted in the Religion Clauses has no merit." > >"Physical acts," v. an "internal church decision." > >Is anyone convinced by this? > > >________________________________________ >From: Eric J Segall >Sent: Wednesday, January 11, 2012 10:34 AM >To: Con Law Prof list >Subject: Hosanna-Tabor > >So Title VII, a generally applicable law that was not passed to hurt or >affect religion (and in fact protects religion), does not apply to >religious >groups. I am not an expert in the Free Exercise Area, but how can Scalia >join this opinion? Am I missing something? > >Thanks, > >Eric > >_______________________________________________ >To post, send message to conlawp...@lists.ucla.edu To subscribe, >unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof > >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. _______________________________________________ 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.
