Dear Bruce, As you say, these are deep and interesting questions. For what it's worth, I don't think the only or best alternative to a "warranted for prudential reasons carve-out from the state's otherwise applicable authority" view of the ministerial exception is an "absolutist" "two realms" model. I *do* believe that a whole lot of our history is the story of the working out of, evolution of, wrestling with, and attacks on the Gelasian "two there are" description, but part of that story is (obviously) the development of nation-states and constitutional liberal democracies. As I see it (I think!), my colleague Bob Rodes' use of the term "nexus" to describe church-state relations is helpful, and maybe describes things both more accurately and more attractively than, say, "two [temporal] realms." In any event, I think we can (and should) say that the older, not entirely supplanted model lives on in the idea that political authority is limited in (at least) two ways: constitutionally (through structural features with which we are familiar and also through Bill-of-Rights-type explicit constraints) *and* by the (even now) reality that there are other legitimate authorities and societies, besides political authorities and societies. This is not absolutism -- it does not absolutize either the liberal state or the "two realms" image -- and it's not even "autonomy" in a full-blown sense, but it is pluralism. And, as Mark DeWolfe Howe suggested, way back when Kedroff was decided, our Religion Clauses and Constitution *can* (still) be understood in a way that's consonant with this pluralism. The "ministerial exception" is usefully thought of, I think, a still-relevant manifestation of this pluralism (rather than, again, only a concession made by the state for the state's own reasons). Figuring out what exactly the content and contours of this manifestation should be, in terms of legal doctrine and methodology, should be is, no doubt, a challenge, and reasonable people will disagree about it. But, I think the Court was right to emphasize the *right* -- the authority -- of religious communities to select those who will "personify" their teachings and faith.
All the best, Rick Richard W. Garnett Professor of Law & Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, IN 46556-0780 574-631-6981 (office) 574-631-4197 (fax) ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Professor Ledewitz [ledew...@duq.edu] Sent: Friday, January 13, 2012 8:42 AM To: Law & Religion issues for Law Academics Subject: Re: Hosanna-Tabor The ministerial exception raises very deep questions about the nature of religion and its relation to everything else. Must it rest on the theory of two realms? Doug Laycock's reference to the child in school illustrates these questions. If the word God were removed from the Pledge, the child would still have the right to refuse to say the Pledge, but no one would claim that the rest of the class cannot recite it or that the student could not be invited to recite. Whatever the problem of the current Pledge is, it does not seem to me to be a matter simply of the rights of the child. It must have to do with the proper role of government. On 1/12/2012 10:09 PM, Douglas Laycock wrote: > People could take an absolutist view of two realms in the Founders' time; > they obviously cannot any more, with the enormous expansion of government. > > My commitment to religious liberty, including the ministerial exception, is > based in a deep commitment to civil liberties more generally. There should be > no inconsistency in protecting the rights of believers in Hosanna-Tabor and > protecting the rights of nonbeliever with respect to the Pledge. Both are > about various ways in which government interferes with the religious beliefs > and practices of individuals and groups. > > Of course imposing a minister on an unwilling congregation is a far more > serious intrusion than asking (but not requiring) school children to give a > brief and generic affirmation of faith. But such judgments about the weight > of violations do not go to the basic point. My commitment is to liberty for > all. > > On Thu, 12 Jan 2012 17:48:47 -0500 (EST) > ledew...@duq.edu wrote: > >> I would like to return to the panel at AALS that John Taylor mentioned. >> Two of the panelists arguing in favor of the ministerial exception, Chris >> Lund and Douglas Laycock, would not be considered pro-religion in the >> conventional sense—both believe for example that the Pledge of Allegiance >> is in principle unconstitutional. Their support of the ministerial >> exception could not really be based on history or the need for an >> unfettered religious presence in society. So, upon what was their support >> ultimately based—what underlying worldview was being urged? >> >> Although only mentioned once on the panel, I think the worldview at stake >> was the “two realms” understanding—that the State and the Church operate >> in separate domains. But there are problems with this view. First, we as >> a society do not really believe it. The King’s criminal law now reaches >> into the churches, fortunately, and a capitalist society will always >> ensure that ministers’ contracts are honored by churches, in court if >> necessary (as the Court in Hosanna-Tabor predictably reserved). >> >> But neither do religious believers accept the two realms. For separate >> realms can also mean marginalization of religion into a private space. >> The next time believers want a national motto with the word God in it, the >> objection will be raised that State and Church are indeed separate, as the >> ministerial exception seems to imply. >> >> The basis of the ministerial exception has to be something quite >> different—that it is precisely because churches do not operate in a >> separate realm that the ministerial exception stands for a limit on the >> omnipotence of the State in any of its activities (and this has been a >> defense of the symbolism of one Nation under God as well). Of course if >> this is the case, then in principle the ministerial exception could be >> available to groups that are not now considered religious and it suggests >> that Smith was wrongly decided since the Free Exercise Clause also stands >> for the proposition that the government is not omnipotent even in its >> legitimate activities. >> >> Bruce Ledewitz >> Professor of Law >> Duquesne Law School >> >> >> _______________________________________________ >> 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. >> > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > > _______________________________________________ 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.
