My apologies for inadvertently sending a private message to the group. So much sending emails from my new IPhone...
Marci A. Hamilton 36 Timber Knoll Drive Washington Crossing, PA 18977 215-353-8984 Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 @Marci_Hamilton _www.facebook.com/professormarciahamilton_ (http://www.facebook.com/professormarciahamilton) In a message dated 1/12/2012 11:35:09 A.M. Eastern Standard Time, mae.kuykend...@law.msu.edu writes: I wonder if there are any data on employment by religious institutions, classified by rough job category. The nature of the problem relates to the scope of persons affected, as Ted explains. It could be large, it could be small. There must be a range of roles with clear connections to propagating the faith/doctrine and others that could not plausibly be so classified. Is there any statistical base to inform a judgment about scope? If we assume almost no one would suggest ministers are not appropriately exempt from state regulation (other than for bad acts that implicate criminal misconduct, and even there churches have been aggressive about seeking to avoid state jurisdiction), then the question becomes how many people have employment with religious institutions in ordinary jobs that might be re-characterized as ministerial by a clever church lawyer and how many (janitors?) might be, incontestably, outside that category. But suppose a church claims that janitors are trained in the proper godly approach to cleaning and are responsible for distributing appropriate literature throughout the building and serving as an example to their brothers and sisters in the flock? Might they be ministers? mk >>> Theodore Ruger <tru...@law.upenn.edu> 1/12/2012 11:15 AM >>> Coming late to this thread with some (too-long) thoughts about how this may play out in future litigation . . . I share Mike Dorf’s concern about the vagueness of the Court’s standard under which employees of religious organizations can now be classified as “ ministers” for the purposes of the exception, particularly given the unwillingness of lower court judges to seriously examine the claims about religious doctrine that churches make during this kind of litigation. (Speaking of which, was there any record evidence to support the Missouri Synod’s claim that as a matter of faith it “prefers to resolve disputes among Christians internally”, or did the district court accept it without inquiry? Can every religion invoke, ipse dixit, such a “spiritual” preference for internal dispute resolution, simply by virtue of being a religious group? What about those Catholic archdioceses whose bishops in 2004 announced often in the mainstream media that John Kerry was ineligible to receive communion because of his pro-choice views – in subsequent employment litigation should their schools be able to assert an absolute and unexamined spiritual preference for keeping disputes among Catholics private?) I suspect that federal courts will continue to be extremely deferential in scrutinizing such claims in litigation, which in turn creates strong incentives for religious groups and their attorneys to be extremely capacious after the fact about who they characterize as “ministerial” whenever an employment dispute arises. And such broad ex post characterizations will have the effect of substantially curtailing the employment rights of large numbers of employees who may not even know they are so classified, and certainly may not know about the effect of the classification on their workplace rights. This concern leads me to imagine two possible ex ante measures – one a reporting rule and one a disclosure requirement – that in my view would be both constitutionally permissible and sound policy, though I’m sure some will disagree on one or both counts. First, most of these religious organizations already file 501(c)(3) returns with the IRS each year – why shouldn’t the IRS require, among the many other disclosures on the return, a schedule of the organization's employees each year classified as “lay” or “ ministerial.” Minimally intrusive, serves a clear secular purpose in guiding the EEOC’s investigatory behavior should an employee in either category file a complaint, and would discourage churches’ ex post expansions of the category during litigation. More substantial would be a disclosure requirement imposed by federal or state law that would require religious organizations to provide all persons hired or reclassified as “ministerial” with prior notice that such status adversely effects their rights to sue as employees under current law. Such disclosure rules are commonly applied to non-religious employers (for instance when someone is hired under a contract that mandates arbitration to resolve employment disputes, see Circuit City v Adams), so I don’t think there is a targeting-of-religion problem with such a rule. Unlikely to happen, but in my view desireable under the regime entrenched by Hosanna-Tabor. Best, Ted Theodore W. Ruger Professor of Law University of Pennsylvania ________________________________________ From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall [eseg...@gsu.edu] Sent: Thursday, January 12, 2012 9:06 AM To: Douglas Laycock; 'Con Law Prof list' Cc: miked...@gmail.com; religionlaw@lists.ucla.edu Subject: RE: Hosanna-Tabor MIke Dorf had a similar perspective to the one I articulated yesterday, though he said it much better. I thought the list should see it: _http://www.dorfonlaw.org/2012/01/ministers-and-peyote.html_ (http://www.dorfonlaw.org/2012/01/ministers-and-peyote.html) My main point is that, just because Scalia said at oral argument that this case is not Smith, does not mean it is not Smith. A "no balancing: rule" should be a "no balancing rule," but I guess Smith didn't really say that, as we now know. Justice Stevens would, I think, have kept them all honest on this issue. Best, Eric ________________________________________ From: Douglas Laycock [dlayc...@virginia.edu] Sent: Wednesday, January 11, 2012 12:55 PM To: Eric J Segall; 'Con Law Prof list' Cc: religionlaw@lists.ucla.edu Subject: RE: Hosanna-Tabor He certainly could have said more about Smith, but I think they found it easy. The relevance of Smith was extensively briefed by all sides.& And at oral argument, Scalia (the author of Smith) said emphatically that "This case has nothing to do with Smith." 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: Eric J Segall [mailto:eseg...@gsu.edu] Sent: Wednesday, January 11, 2012 12:51 PM To: Douglas Laycock; 'Con Law Prof list' Cc: religionlaw@lists.ucla.edu Subject: RE: Hosanna-Tabor Well, I am a bit reluctant to get into this with Doug and Gene but just a couple of thoughts. Smith, and the Court's recent Establishment Clause jurisprudence, especially the parochial school aid cases, seem to suggest that neutrality and general applicability are the keys to the Religion Clauses (certainly Scalia and Thomas think so). I guess that's not true for "internal church governance" but not sure why and, being one who believes strongly in Thayer type deference, I am not sure this is not one of those cases where the result makes sense but is not constitutionally required. I hope Doug and Gene agree that Smith was dismissed a bit too casually in Roberts' opinion, if nothing else. Best, Eric ________________________________________ From: Douglas Laycock [dlayc...@virginia.edu] Sent: Wednesday, January 11, 2012 11:42 AM To: Eric J Segall; 'Con Law Prof list' Cc: religionlaw@lists.ucla.edu Subject: Hosanna-Tabor 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_ (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 conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see _http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof_ (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 conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see _http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof_ (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 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.
<<inline: marci%20hamilton%20signature%20cropped.jpg>>
_______________________________________________ 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.
