Most constitutionally protected liberties are a zero sum game in Marci's sense. They impose a cost on the general public or particular third parties by preventing laws that often protect or benefit people from being fully implemented. There is no free lunch and rights are expensive political goods.
But Marci us clearly correct that their is a cost to the ministerial exception and the broader it is defined the greater that cost will be. Moreover, their is arguably a constitutional check on an excessively broad understanding of the exception. Several Establishment Clause cases make it clear that religious accommodations that impose unacceptably large burdens on nonbeneficiaries are subject to challenge. That concern should operate in tension with the Religion Clause concerns supporting the exception. Reasonable people may disagree on where that line should be drawn and how that balance should be struck. Alan ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marci Hamilton [hamilto...@aol.com] Sent: Friday, January 13, 2012 6:52 AM To: Law & Religion issues for Law Academics Subject: Re: Hosanna-Tabor I have no doubt whatsoever that Doug is sincere when he talks about his commitment to "civil liberties more generally," but Hosanna-Tabor is the clearest case to date showing that religious liberty is a zero sum game. For increases in the rights of religious organizations, there are concomitant losses for the victims of the organizations' acts. The victims of disability, alienage, race, and gender discrimination are now likely incapable of vindicating their civil rights if they are clergy, or ministers, or according to some on our list, lay teachers in parochial schools. That is a large quantum loss of civil rights on any scale. I suppose those taking Doug's view believe that the loss is justified. Justification, however, does not obviate the fact of the loss. I can assure you that Petruska, Perich, and Rweyemamu do not view this decision as a vindication for civil rights. With respect to Smith, given the Court's own statements about Smith in Hosanna-Tabor and O Centro, it is entrenched at the Court. Marci _______________________________________________ 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.
