I assumed that the reference to "tortious conduct" left open cases like Bollard. This is another important aspect of the Court refusing to make the ministerial exception, whatever its scope, a jurisdictional bar.
Marci On Jan 12, 2012, at 3:38 PM, Ira Lupu wrote: > Does the line of cases that allow sexual harassment claims for damages by > clergy against their religious employers (e.g., Bollard v. Cal. Province of > Society of Jesus, 196 F. 3d 940 (9th Cir, 1999)) survive Hosanna-Tabor? Is > that just another "employment discrimination suit," or is it more like "an > action by [an] employee[] alleging . . . tortious conduct," of the sort left > open by the Hosanna-Tabor opinion? > > On Wed, Jan 11, 2012 at 11:42 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. > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > _______________________________________________ > 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.
