RE: Hosanna-Tabor
I have to respectfully disagree with Chip on this point. The concerns about unacceptably burdening non-beneficiaries that justify restricting legislative accommodations don't disappear when the accommodation is constitutionally mandated. Courts commonly take these concerns into account in engaging in definitional balancing to determine the scope of rights. The ministerial exception is more complicated, as Chip notes, because it is justified in part by Establishment Clause concerns. Thus, under my argument, the same constitutional provision would both justify a ministerial exception as well as suggest limits as to its scope. That may be uncommon, but it is hardly unprecedented. Religious liberty (free exercise) interests may fall on both sides of a line and both support an accommodation as well as support limits on its scope. The same is true for the Establishment Clause (which, for example, promotes both religious liberty and religious equality values which are sometimes in conflict.) It is also true that the Court does not engage in explicit interest balancing in Establishment clauses in the sense that it does not apply conventional standards of review. But it does engage in constitutional interest balancing when it determines the scope of Establishment Clause principles. Thus, for example, in determining the extent to which government may subsidize religious institutions, the Court was clearly concerned that some restrictions on government support would unreasonably burden religious institutions by denying them assess to generally available benefits. I don't believe that Establishment clause line drawing is devoid of judicial attention to the consequences of the Court's decisions. Chip is correct that the Court does not focus on the cost to third parties in the hosanna-Tabor opinion. It does in the last paragraph, however, note the importance of employment discrimination laws, the interest of religious groups in choosing who will preach their beliefs, and its conclusion that the First Amendment has struck the balance for us. I do not read that language to suggest that the Court will ignore other constitutional concerns or important state interests in determining that balance in future cases that set the contours of the ministerial exception. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Friday, January 13, 2012 11:38 AM To: Law & Religion issues for Law Academics Subject: Re: Hosanna-Tabor Alan Brownstein writes that there is "arguably a constitutional check on an excessively broad understanding of the [ministerial] 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." But the cases to which Alan refers are about permissive accommodations (e.g., Caldor, Cutter, Zorach), which are themselves challenged as violations of the Establishment Clause. The ministerial exception, the Court says, itself rests in part on the Establishment Clause, and is mandatory, not permissive. If the Court had repudiated the exception, and a legislature had then reinstated it as a permissive accommodation, then the concern for non-beneficiaries would of course come into play. What's different about the context of the ministerial exception is that it involves an Establishment Clause-driven benefit (not a detriment, like a funding limitation) to religious institutions (with consequent risk of harm to others). But the mandatory quality of the exception undercuts Alan's point. No one on the Court suggested any balancing of the potential social disutility (which the government pressed as an argument) of the exception -- including harm to third parties, not just the employee-plaintiff. This is one of the reasons why the Court's unanimity is so stark and surprising, and this is also a reason why the Establishment Clause grounding is so important -- we do not have any doctrine of explicit interest-balancing in Establishment Clauses. And drawing the line re: who is a ministerial employee will have nothing to do with the scope of non-beneficiary interests -- everything about the Court's opinion suggests that Ms. Perich would have been found to be a ministerial employee even if she had been fired for reporting to the police about physical abuse of children at the school. Chip On Fri, Jan 13, 2012 at 11:54 AM, Alan Brownstein mailto:aebrownst...@ucdavis.edu>> wrote: 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 l
Re: Hosanna-Tabor
Maybe my thinking about this is simpler than it ought to be, but I would have thought: 1. Everyone agrees that as a historical matter, the idea that church and state are "separate" or have different "realms" or "spheres" or "jurisdictions" is important and influential. 2. Everyone agrees that these realms or spheres can't be totally separate. That was always true, and (as Doug points out) it's more obviously true in the modern world where government has such a large role. 3. So rather than picturing two separate spheres, we might picture two intersecting circles with an overlap as in a Venn diagram. (Crude, I know.) 4. Even with that qualification, the idea remains that despite the overlap, some things are just the church's business and definitely not the state's business. I think for many supporters of the ministerial exception, the basic thought is that certain questions of internal church governance are for the church alone. If that's the thought, it makes sense to say Hosanna-Tabor is right but sex abuse cases, etc. would be a different story where the state's interest is much stronger. On the flip side, the thought would be that the inclusion of God in the Pledge of Allegiance is unconstitutional because the government shouldn't be in the business of declaring religious truth any more than it should be in the business of telling religious groups who their leaders should be. I think that is more or less what Doug and Chris would say, or at least is part of what they would say, about why one can be "pro-ministerial exception" but have doubts about "under God" in the Pledge. Looked at from that perspective, I don't see a lot of tension but I may be missing Bruce's point. John Taylor Professor and Associate Dean for Academic Affairs WVU College of Law >>> Professor Ledewitz 1/13/2012 8:42 AM >>> 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 mini
RE: Hosanna-Tabor
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 >> exceptio
Re: Hosanna-Tabor
Alan Brownstein writes that there is "arguably a constitutional check on an excessively broad understanding of the [ministerial] 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." But the cases to which Alan refers are about permissive accommodations (e.g., Caldor, Cutter, Zorach), which are themselves challenged as violations of the Establishment Clause. The ministerial exception, the Court says, itself rests in part on the Establishment Clause, and is mandatory, not permissive. If the Court had repudiated the exception, and a legislature had then reinstated it as a permissive accommodation, then the concern for non-beneficiaries would of course come into play. What's different about the context of the ministerial exception is that it involves an Establishment Clause-driven benefit (not a detriment, like a funding limitation) to religious institutions (with consequent risk of harm to others). But the mandatory quality of the exception undercuts Alan's point. No one on the Court suggested any balancing of the potential social disutility (which the government pressed as an argument) of the exception -- including harm to third parties, not just the employee-plaintiff. This is one of the reasons why the Court's unanimity is so stark and surprising, and this is also a reason why the Establishment Clause grounding is so important -- we do not have any doctrine of explicit interest-balancing in Establishment Clauses. And drawing the line re: who is a ministerial employee will have nothing to do with the scope of non-beneficiary interests -- everything about the Court's opinion suggests that Ms. Perich would have been found to be a ministerial employee even if she had been fired for reporting to the police about physical abuse of children at the school. Chip On Fri, Jan 13, 2012 at 11:54 AM, Alan Brownstein wrote: > 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 me
Re: Hosanna-Tabor
Well, for one thing, it sounds a little like the government's position that the Court should balance the State's interest in each case rather than apply an exception as such at all. Conversely, the Church might say that whether the nation is acting "under God" is a matter that will have this-worldly consequences and should not be thought of as "religious" at all. (Compare the cartoon in which Pharaoh accuses Moses of mixing Church and State because slavery is a matter of economics). On 1/13/2012 9:32 AM, John Taylor wrote: Maybe my thinking about this is simpler than it ought to be, but I would have thought: 1. Everyone agrees that as a historical matter, the idea that church and state are "separate" or have different "realms" or "spheres" or "jurisdictions" is important and influential. 2. Everyone agrees that these realms or spheres can't be totally separate. That was always true, and (as Doug points out) it's more obviously true in the modern world where government has such a large role. 3. So rather than picturing two separate spheres, we might picture two intersecting circles with an overlap as in a Venn diagram. (Crude, I know.) 4. Even with that qualification, the idea remains that despite the overlap, some things are just the church's business and definitely not the state's business. I think for many supporters of the ministerial exception, the basic thought is that certain questions of internal church governance are for the church alone. If that's the thought, it makes sense to say Hosanna-Tabor is right but sex abuse cases, etc. would be a different story where the state's interest is much stronger. On the flip side, the thought would be that the inclusion of God in the Pledge of Allegiance is unconstitutional because the government shouldn't be in the business of declaring religious truth any more than it should be in the business of telling religious groups who their leaders should be. I think that is more or less what Doug and Chris would say, or at least is part of what they would say, about why one can be "pro-ministerial exception" but have doubts about "under God" in the Pledge. Looked at from that perspective, I don't see a lot of tension but I may be missing Bruce's point. John Taylor Professor and Associate Dean for Academic Affairs WVU College of Law >>> Professor Ledewitz 1/13/2012 8:42 AM >>> 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, fort
RE: Hosanna-Tabor
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.
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 On Jan 12, 2012, at 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
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.
RE: Hosanna-Tabor
It seems to me that Justice Scalia not only meant what he said
in Smith, but signed on in Hosanna-Tabor to an opinion that followed what
Justice Scalia said. Scalia in Smith:
The only decisions in which we have held that the First Amendment bars
application of a neutral, generally applicable law to religiously motivated
action have involved not the Free Exercise Clause alone, but the Free Exercise
Clause in conjunction with other constitutional protections [I]t is easy
to envision a case in which a challenge on freedom of association grounds would
likewise be reinforced by Free Exercise Clause concerns. Cf. Roberts v. United
States Jaycees, 468 U. S. 609, 622
(1984)<http://scholar.google.com/scholar_case?case=6786088316489842364&q=employment+division+v.+smith&hl=en&as_sdt=2,5>
("An individual's freedom to speak, to worship, and to petition the government
for the redress of grievances could not be vigorously protected from
interference by the State [if] a correlative freedom to engage in group effort
toward those ends were not also guaranteed").
Hosanna-Tabor:
Applying the protection of the First Amendment to roles of religious
leadership, worship, ritual, and expression focuses on the objective functions
that are important for the autonomy of any religious group, regardless of its
beliefs. As we have recognized in a similar context,"[f]orcing a group to
accept certain members may impair [its ability] to express those views, and
only those views, that it intends to express." Boy Scouts of America v. Dale,
530 U. S. 640, 648 (2000). That principle applies with special force with
respect to religious groups, whose very existence is dedicated to the
collective expression and propagation of shared religious ideals. See
Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 882
(1990) (noting that the constitutional interest in freedom of association may
be "reinforced by Free Exercise Clause concerns"). As the Court notes, the
First Amendment "gives special solicitude to the rights of religious
organizations," ante, at 14, but our expressive-association cases are
nevertheless useful in pointing out what those essential rights are. Religious
groups are the archetype of associations formed for expressive purposes, and
their fundamental rights surely include the freedom to choose who is qualified
to serve as a voice for their faith.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Thursday, January 12, 2012 12:53 PM
Cc: Law & Religion issues for Law Academics; Con Law Prof list
Subject: Re: Hosanna-Tabor
How is it that we as lawyers and law professors fell so deeply into thinking
that Smith meant what it said? Or even what Scalia said it said in his opinion
in Hialeah? Or even what Kennedy said it meant in Hialeah?
Hosanna-Tabor is an easy case if one doesn't believe Scalia meant what he said
in Smith. It is a case of the state intruding on the essential ministry
operations and doctrinal understandings and application of those understandings
of a religion.
So I guess the Court is willing to allow the inquiry into doctrine and belief
to proceed to some extent, probably using some sort of pretext or sincerity
standard to limit the intrusion.
Will there be many cases really? It seems to me that BFOQ and the minister
exception will, in nearly all instances, be capable of relatively easy
application, unclouded by Smith language.
Steve
--
Prof. Steven Jamar
Howard University School of Law
Associate Director, Institute of Intellectual Property and Social Justice
(IIPSJ)
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Re: Hosanna-Tabor
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 > 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/
RE: Hosanna-Tabor
Dear Marci, With all due respect, and conceding that the opinion carefully avoids deciding every question that might arise, I think it is not consistent with the opinion's reasoning -- and its emphasis on history, and the Kedroff etc. cases -- to limit it to selection-criteria cases.For example: Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers. And: the Religion Clauses ensured that thenew Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government fromappointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own. And: We agree that there is such a ministerial exception. The members of a religious group put their faith in the handsof their ministers. Requiring a church to accept or retainan unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governanceof the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right toshape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. The decision -- I think clearly -- is focused on the violation of religious freedom that is done by government interference in a religious community's decision about a particular "individual[]" minister, and not simply with the eligibility criteria that a religious tradition employs for, say, ordination. I realize, of course, that we are lawyers, and that many of us litigate cases that give us a stake in urging courts to interpret this (and other) decisions either narrowly or broadly. In my view, though, the reading of the case that is most faithful to the rationale provided by the Court for the ministerial exception is broader than the one you suggest. (Indeed, I think the decision has to be read -- notwithstanding the emphasis placed, in response to the 6th Circuit, on the fact that Ms. Perich had something like an ordained position -- as applying to lay teachers in a religious school that holds itself out as providing an integrated education, one that incorporates formation in the faith.) Best wishes, 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 Marci Hamilton [hamilto...@aol.com] Sent: Wednesday, January 11, 2012 9:45 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Hosanna-Tabor I agree with David, though I would characterize the Court's paradigmatic concern as being about the right to choose selection criteria. Catholics and Orthodox Jews plainly have the right to favor men over women and Hosanna Tabor Lutherans have the right to choose mediators instead of litigators. I am not persuaded by Howard's characterization of some kind of institutional autonomy. The unanimous decision is too carefully parsed for that to be a touchstone for future interpretation. The way the decision is constructed and explained, there are many open questions and every case will be fact specific. Except we know for sure that there is no jurisdictional bar so cases will have to be scrutinized by the courts and subject to judicial interpretation. Marci On Jan 11, 2012, at 8:58 PM, David Cruz mailto:dc...@law.usc.edu>> wrote: It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil "interference" with employment clergy and more on civil interference with "selection" (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern Califo
RE: Hosanna-Tabor
While there is a lot of merit in what Eugene writes, it seems to me that he is identifying three arguments in support of the ministerial exemption: 1. It has strong historical roots. 2. There is a freedom of association dimension to it. 3. It is very circumscribed in its scope and involves far less judicial intrusion into executive and legislative decisions. All are valid points. But I'm not sure they adequately distinguish why this particular set of religious decisions gets constitutional protection while others do not. 1. Other religious exemptions have strong historical roots. 2. Many individual religious practices have an expressive dimension and communicate the beliefs and commitment of the believer. Is the right of expressive associations to choose their leaders more deserving of protection than the right of individuals and congregations to express their beliefs through religious worship and practice? And if the expressive associational dimension of religious groups choosing their leader is part of the foundation of this decision, one might argue that freedom of speech and association doctrine undermine the claim that organizations expressing a particular viewpoint (here, religious beliefs) should receive greater protection against government regulations than organizations expressing an alternative viewpoint (secular ideas). 3. One could draw other narrow zones protecting religious decisions and practice that limit judicial intrusion into legislative and executive authority. Let me be clear that I am not suggesting that the Court was incorrect in recognizing a ministerial exemption. (I think it was correct in doing so.) And it may be that the historical foundation for such an exemption is so strong that it can be distinguished from any traditionally recognized exemption for religious individuals or congregations. But I think there is more to this argument than the three very relevant points that Eugene identifies or that are captured by the terms "physical acts" and "internal church governance." Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, January 11, 2012 9:06 AM To: Law & Religion issues for Law Academics Cc: Eric J Segall Subject: RE: Hosanna-Tabor I agree with Doug on this, and want to add one item: The Sherbert/Yoder regime put courts in the position of having to evaluate a vast range of laws -- antidiscrimination laws, animal cruelty laws, assisted suicide bans, child labor laws, compelled testimony laws, copyright laws, drug laws, tax laws, traffic laws, zoning laws, and more -- in lawsuits brought by anyone who could sincerely claim a religious objection to their application to him (a group that might start small for each law, but might well grow as the availability of exemptions led people, subconsciously or deliberately, to assert convenient religious beliefs). The Smith majority rebelled (I think correctly) against having federal courts deciding in each case whether the government interest was "compelling" enough and whether the law was really "necessary" to serve the interest, which is to say against having federal courts constantly second-guessing the legislature's moral and practical judgment behind a vas! t range of laws. (This is also, I think, why the Court has provided extremely modest protection against content-neutral restrictions on expressive conduct, both imposing in O'Brien a much more deferential test than strict scrutiny and then holding in Rumsfeld v. FAIR that the protection would in any event only apply to a narrow range of conduct that was expressive on its own.) Hosanna-Tabor puts courts in the position of constraining legislative judgment only as to a narrow range of conduct: church selection of ministers. Despite the Court's point that the right is not the same as the right to freedom of association, this zone of judicial control is already not far from the zone where judges have to protect expressive associations' rights to choose leaders and members. What's more, this is a zone where there has been a much more solid and consistent history of immunity from governmental control. And in any event, it's just substantively quite a narrow zone. So while the private interest involved in Smith and Hosanna-Tabor may be comparable -- or in some Smith cases even greater -- and the government interest may often be similar (indeed, Smith applies to antidiscrimination laws themselves), the magnitude of the judicial intrusion in Sherbert/Yoder is much greater than in Hosanna-Tabor. And that, I think, rightly makes a big difference. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscri
Re: Hosanna-Tabor
Did you watch Sat night live last week w Charles Barkley? He did this hilarious piece about a supposed show called "white people problems". When I hear these guys talking about the needs of the churches to be shielded from liability for discrimination, for some reason that skit comes to mind. On Jan 11, 2012, at 10:07 PM, David Cruz wrote: > I agree. :-) > > And great to have seen you in DC! > > > David B. Cruz > Professor of Law > University of Southern California Gould School of Law > Los Angeles, CA 90089-0071 > U.S.A. > > On Jan 11, 2012, at 6:49 PM, "Marci Hamilton" wrote: > >> I agree with David, though I would characterize the Court's paradigmatic >> concern as being about the right to choose selection criteria. Catholics >> and Orthodox Jews plainly have the right to favor men over women and Hosanna >> Tabor Lutherans have the right to choose mediators instead of litigators. >> I am not persuaded by Howard's characterization of some kind of >> institutional autonomy. The unanimous decision is too carefully parsed for >> that to be a touchstone for future interpretation. The way the decision is >> constructed and explained, there are many open questions and every case will >> be fact specific. >> Except we know for sure that there is no jurisdictional bar so cases will >> have to be scrutinized by the courts and subject to judicial >> interpretation. Marci >> >> On Jan 11, 2012, at 8:58 PM, David Cruz wrote: >> >>> It seems to me an easy distinction between the case of the undocumented >>> minister posited by Howard and today's case is that if the government >>> deports someone for being unlawfully present, that is in no way predicated >>> upon a decision by a church to select that person as a minister; the >>> church's decision is simply irrelevant to the government's legal claim for >>> deportation. Wrongful termination suits, grounded in tort law or >>> antidiscrimination law, however, do depend upon a church's reasons for >>> firing someone, which is what I take the Court's opinion to be getting at. >>> Similar reasoning would apply to questions of ministers' arrestability. >>> The emphasis, it seems to me, should be less on civil "interference" with >>> employment clergy and more on civil interference with "selection" (or >>> de-selection) of clergy. >>> >>> David B. Cruz >>> Professor of Law >>> University of Southern California Gould School of Law >>> Los Angeles, CA 90089-0071 >>> U.S.A. >>> >>> On Jan 11, 2012, at 4:54 PM, "Friedman, Howard M." >>> wrote: >>> >>>> I think that the decision has much broader implications for church >>>> autonomy. I have just developed this argument in some detail in a posting >>>> on Religion Clause, for those who may be interested in reading it. >>>> http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html >>>> I welcome any reactions. >>>> >>>> Howard Friedman >>>> >>>> >>>> -Original Message- >>>> From: religionlaw-boun...@lists.ucla.edu on behalf of John Taylor >>>> Sent: Wed 1/11/2012 3:26 PM >>>> To: Law & Religion issues for Law Academics >>>> Subject: RE: Hosanna-Tabor >>>> >>>> There was a very good panel on the case at AALS Saturday morning >>>> (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline >>>> Corbin, and Leslie Griffin) and it included, among other things, an >>>> exchange between Rick Garnett and Bob Tuttle on the rationale for the >>>> ministerial exception. While both acknowledged that they were overstating >>>> their differences, the contrast (as I understood it) was one between >>>> viewing the ministerial exception as completely (or almost completely) >>>> about the judicial disability "to decide religious questions" (a.k.a. the >>>> "hands-off" principle, the "no religious decisions" principle per Eugene) >>>> and viewing it as protecting certain kinds of decisions made by religious >>>> groups whether religious questions have to be decided or not. (Maybe I've >>>> got that all wrong, and if so my apologies to Rick and Bob.) >>>> >>>> While I agree that "autonomy" is a loaded word that the majori
Re: Hosanna-Tabor-- apologies
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
Re: Hosanna-Tabor
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 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.
Re: Hosanna-Tabor
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 senseboth 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 basedwhat underlying worldview was being urged? > >Although only mentioned once on the panel, I think the worldview at stake >was the two realms understandingthat 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 Kings 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 >differentthat 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.
RE: Hosanna-Tabor
While there is a lot of merit in what Eugene writes, it seems to me that he is identifying three arguments in support of the ministerial exemption: 1. It has strong historical roots. 2. There is a freedom of association dimension to it. 3. It is very circumscribed in its scope and involves far less judicial intrusion into executive and legislative decisions. All are valid points. But I'm not sure they adequately distinguish why this particular set of religious decisions gets constitutional protection while others do not. 1. Other religious exemptions have strong historical roots. 2. Many individual religious practices have an expressive dimension and communicate the beliefs and commitment of the believer. Is the right of expressive associations to choose their leaders more deserving of protection than the right of individuals and congregations to express their beliefs through religious worship and practice? And if the expressive associational dimension of religious groups choosing their leader is part of the foundation of this decision, one might argue that freedom of speech and association doctrine undermine the claim that organizations expressing a particular viewpoint (here, religious beliefs) should receive greater protection against government regulations than organizations expressing an alternative viewpoint (secular ideas). 3. One could draw other narrow zones protecting religious decisions and practice that limit judicial intrusion into legislative and executive authority. Let me be clear that I am not suggesting that the Court was incorrect in recognizing a ministerial exemption. (I think it was correct in doing so.) And it may be that the historical foundation for such an exemption is so strong that it can be distinguished from any traditionally recognized exemption for religious individuals or congregations. But I think there is more to this argument than the three very relevant points that Eugene identifies or that are captured by the terms "physical acts" and "internal church governance." Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, January 11, 2012 9:06 AM To: Law & Religion issues for Law Academics Cc: Eric J Segall Subject: RE: Hosanna-Tabor I agree with Doug on this, and want to add one item: The Sherbert/Yoder regime put courts in the position of having to evaluate a vast range of laws -- antidiscrimination laws, animal cruelty laws, assisted suicide bans, child labor laws, compelled testimony laws, copyright laws, drug laws, tax laws, traffic laws, zoning laws, and more -- in lawsuits brought by anyone who could sincerely claim a religious objection to their application to him (a group that might start small for each law, but might well grow as the availability of exemptions led people, subconsciously or deliberately, to assert convenient religious beliefs). The Smith majority rebelled (I think correctly) against having federal courts deciding in each case whether the government interest was "compelling" enough and whether the law was really "necessary" to serve the interest, which is to say against having federal courts constantly second-guessing the legislature's moral and practical judgment behind a vas! t range of laws. (This is also, I think, why the Court has provided extremely modest protection against content-neutral restrictions on expressive conduct, both imposing in O'Brien a much more deferential test than strict scrutiny and then holding in Rumsfeld v. FAIR that the protection would in any event only apply to a narrow range of conduct that was expressive on its own.) Hosanna-Tabor puts courts in the position of constraining legislative judgment only as to a narrow range of conduct: church selection of ministers. Despite the Court's point that the right is not the same as the right to freedom of association, this zone of judicial control is already not far from the zone where judges have to protect expressive associations' rights to choose leaders and members. What's more, this is a zone where there has been a much more solid and consistent history of immunity from governmental control. And in any event, it's just substantively quite a narrow zone. So while the private interest involved in Smith and Hosanna-Tabor may be comparable -- or in some Smith cases even greater -- and the government interest may often be similar (indeed, Smith applies to antidiscrimination laws themselves), the magnitude of the judicial intrusion in Sherbert/Yoder is much greater than in Hosanna-Tabor. And that, I think, rightly makes a big difference. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu
Re: Hosanna-Tabor
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 senseboth 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 basedwhat underlying worldview was being urged? Although only mentioned once on the panel, I think the worldview at stake was the two realms understandingthat 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 Kings 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 differentthat 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.
RE: Hosanna-Tabor
I think #3 is the most important item -- and if there were other ways to circumscribe particular categories of exemption requests that made logical sense and thus didn't seem gerrymandered (and, especially, that fit American traditions, something the Sherbert/Yoder doctrine did not), I think courts would have been much more open to accepting such exemptions. But the problem with the Sherbert/Yoder approach to religious exemptions is precisely that its rationale seemed so broad, and so hard to cabin to narrow zones. It applied to any conduct that people saw as religiously mandated or religiously prohibited, and given the vast diversity of American religious practices (and the constitutional prohibition on limiting the protection to only mainstream or established practices) this potentially affected a vast range of laws; and I see no limiting principle that could easily narrow it. So it fell of its own weight, in a way that a narrower regime such as the Hosanna-Tabor one would not. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Alan Brownstein > Sent: Wednesday, January 11, 2012 11:08 AM > To: Law & Religion issues for Law Academics > Subject: RE: Hosanna-Tabor > > While there is a lot of merit in what Eugene writes, it seems to me that he is > identifying three arguments in support of the ministerial exemption: > > 1. It has strong historical roots. > > 2. There is a freedom of association dimension to it. > > 3. It is very circumscribed in its scope and involves far less judicial > intrusion > into executive and legislative decisions. > > All are valid points. But I'm not sure they adequately distinguish why this > particular set of religious decisions gets constitutional protection while > others do not. > > 1. Other religious exemptions have strong historical roots. > > 2. Many individual religious practices have an expressive dimension and > communicate the beliefs and commitment of the believer. Is the right of > expressive associations to choose their leaders more deserving of protection > than the right of individuals and congregations to express their beliefs > through religious worship and practice? And if the expressive associational > dimension of religious groups choosing their leader is part of the foundation > of this decision, one might argue that freedom of speech and association > doctrine undermine the claim that organizations expressing a particular > viewpoint (here, religious beliefs) should receive greater protection against > government regulations than organizations expressing an alternative > viewpoint (secular ideas). > > 3. One could draw other narrow zones protecting religious decisions and > practice that limit judicial intrusion into legislative and executive > authority. > > Let me be clear that I am not suggesting that the Court was incorrect in > recognizing a ministerial exemption. (I think it was correct in doing so.) > And > it may be that the historical foundation for such an exemption is so strong > that it can be distinguished from any traditionally recognized exemption for > religious individuals or congregations. But I think there is more to this > argument than the three very relevant points that Eugene identifies or that > are captured by the terms "physical acts" and "internal church governance." > > Alan Brownstein ___ 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.
Re: Hosanna-Tabor
It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil "interference" with employment clergy and more on civil interference with "selection" (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 4:54 PM, "Friedman, Howard M." mailto:howard.fried...@utoledo.edu>> wrote: I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability "to decide religious questions" (a.k.a. the "hands-off" principle, the "no religious decisions" principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that "autonomy" is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by "ministers," the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- "it was retaliation based on religious principle" -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about "disability to decide religious questions," but it has little force if one simply says, "Look, the idea that religious groups get to decide who will play important spiritual roles without state interference is very old, and state interference in the selection of clergy is at the core of what the Establishment Clause meant to forbid. If she's a minister, the state can't second-guess that decision in an employment discrimination suit. Period." At least to me, the majority opinion reads like the quote at the end of the last paragraph. It doesn't seem to hold out any possibility that some employment discrimination cases might be within the judiciary's competence to decide if only it could do so without getting into "religious questions." One could perhaps reach the same result by saying "Where it's a discrimination claim, religious questions will always be involved and thus the no-religious-decisions principle explains everything." Some panelists on Saturday appeared to express that view, and it might be correct. But it's striking to me that this argument is made only by Alito. The majority opinion seems to me closer in spirit to Rick's idea that maybe the hiring and firing of ministers is a matter of sphere sovereignty -- the state's authorit
Re: Hosanna-Tabor
How is it that we as lawyers and law professors fell so deeply into thinking that *Smith* meant what it said? Or even what Scalia said it said in his opinion in *Hialeah*? Or even what Kennedy said it meant in Hialeah? Hosanna-Tabor is an easy case if one doesn't believe Scalia meant what he said in *Smith*. It is a case of the state intruding on the essential ministry operations and doctrinal understandings and application of those understandings of a religion. So I guess the Court is willing to allow the inquiry into doctrine and belief to proceed to some extent, probably using some sort of pretext or sincerity standard to limit the intrusion. Will there be many cases really? It seems to me that BFOQ and the minister exception will, in nearly all instances, be capable of relatively easy application, unclouded by *Smith* language. Steve -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) ___ 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.
RE: Hosanna-Tabor
What if the church board fires a minister and admits, prior to the filing of an action, that it was not for religious reasons but because he was disabled or because of his race or for some other reason that ordinarily would be impermissible. If the church states that there is no religious reason for the firing – if it says that the discrimination is not based on any religious tenet – does the Court’s holding protect the church? Perhaps the point is that a court simply can’t take cognizance of a religious organization’s reason for firing a minister, or involve itself in such a case, even if there is no dispute about the reason being nonreligious. But I’m not sure. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz Sent: Wednesday, January 11, 2012 5:58 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Hosanna-Tabor It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil "interference" with employment clergy and more on civil interference with "selection" (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 4:54 PM, "Friedman, Howard M." mailto:howard.fried...@utoledo.edu>> wrote: I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability "to decide religious questions" (a.k.a. the "hands-off" principle, the "no religious decisions" principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that "autonomy" is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by "ministers," the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- "it was retaliation based on religious principle" -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about "disability to decide religious questions," but it has little force if one simply says, "Look, the idea that religious groups get to decide who will play important spiritual roles without state interference is very old, and state interference in the selection of clergy is at the core of what the Establishment Clause
Re: Hosanna-Tabor-- apologies
And mine as well. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Marci Hamilton mailto:hamilto...@aol.com>> Date: Thu, 12 Jan 2012 08:46:04 -0800 To: "mae.kuykend...@law.msu.edu<mailto:mae.kuykend...@law.msu.edu>" mailto:mae.kuykend...@law.msu.edu>>, "eseg...@gsu.edu<mailto:eseg...@gsu.edu>" mailto:eseg...@gsu.edu>>, "tru...@law.upenn.edu<mailto:tru...@law.upenn.edu>" mailto:tru...@law.upenn.edu>>, "conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>" mailto:conlawp...@lists.ucla.edu>>, "dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>" mailto:dlayc...@virginia.edu>> Cc: "miked...@gmail.com<mailto:miked...@gmail.com>" mailto:miked...@gmail.com>>, "religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>" mailto:religionlaw@lists.ucla.edu>> Subject: Re: Hosanna-Tabor-- apologies My apologies for inadvertently sending a private message to the group. So much sending emails from my new IPhone... [cid:X.MA1.1326386764@aol.com] 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> <>___ 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.
Re: Hosanna-Tabor
I agree with David, though I would characterize the Court's paradigmatic concern as being about the right to choose selection criteria. Catholics and Orthodox Jews plainly have the right to favor men over women and Hosanna Tabor Lutherans have the right to choose mediators instead of litigators. I am not persuaded by Howard's characterization of some kind of institutional autonomy. The unanimous decision is too carefully parsed for that to be a touchstone for future interpretation. The way the decision is constructed and explained, there are many open questions and every case will be fact specific. Except we know for sure that there is no jurisdictional bar so cases will have to be scrutinized by the courts and subject to judicial interpretation. Marci On Jan 11, 2012, at 8:58 PM, David Cruz wrote: > It seems to me an easy distinction between the case of the undocumented > minister posited by Howard and today's case is that if the government deports > someone for being unlawfully present, that is in no way predicated upon a > decision by a church to select that person as a minister; the church's > decision is simply irrelevant to the government's legal claim for > deportation. Wrongful termination suits, grounded in tort law or > antidiscrimination law, however, do depend upon a church's reasons for firing > someone, which is what I take the Court's opinion to be getting at. Similar > reasoning would apply to questions of ministers' arrestability. The > emphasis, it seems to me, should be less on civil "interference" with > employment clergy and more on civil interference with "selection" (or > de-selection) of clergy. > > David B. Cruz > Professor of Law > University of Southern California Gould School of Law > Los Angeles, CA 90089-0071 > U.S.A. > > On Jan 11, 2012, at 4:54 PM, "Friedman, Howard M." > wrote: > >> I think that the decision has much broader implications for church autonomy. >> I have just developed this argument in some detail in a posting on Religion >> Clause, for those who may be interested in reading it. >> http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html >> I welcome any reactions. >> >> Howard Friedman >> >> >> -----Original Message- >> From: religionlaw-boun...@lists.ucla.edu on behalf of John Taylor >> Sent: Wed 1/11/2012 3:26 PM >> To: Law & Religion issues for Law Academics >> Subject: RE: Hosanna-Tabor >> >> There was a very good panel on the case at AALS Saturday morning (organized >> by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and >> Leslie Griffin) and it included, among other things, an exchange between >> Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. >> While both acknowledged that they were overstating their differences, the >> contrast (as I understood it) was one between viewing the ministerial >> exception as completely (or almost completely) about the judicial disability >> "to decide religious questions" (a.k.a. the "hands-off" principle, the "no >> religious decisions" principle per Eugene) and viewing it as protecting >> certain kinds of decisions made by religious groups whether religious >> questions have to be decided or not. (Maybe I've got that all wrong, and if >> so my apologies to Rick and Bob.) >> >> While I agree that "autonomy" is a loaded word that the majority did not use >> and I agree that this case doesn't and isn't meant to reach beyond >> employment discrimination claims by "ministers," the second view does seem >> to me potentially a bit broader than the first. For example, Caroline >> Corbin and Leslie Griffin suggested at the panel that since this was a >> retaliation case, all the court really had to decide was whether there had >> been retaliation and this was not a religious question. (Their argument, I >> think, was that the church's response -- "it was retaliation based on >> religious principle" -- is irrelevant unless there's a religious exemption >> from the retaliation provisions in the ABA. Since Smith forecloses the >> latter argument, they suggested, you could decide the case without getting >> beyond the fact of retaliation, which was essentially admitted by the >> church.) That argument may have some force if one thinks that the >> ministerial exception is entirely about "disability to decide religious >> questions," but it has little force if one simply says, "Look, th
RE: Hosanna-Tabor
It is interesting to note that Justice Thomas would defer to a religious organization's good faith determination that a person is a minister. Take the question whether a person has had formal religious education. That is a factor under the Court's decision, but not determinative. There certainly are churches that do not require a minister to have formal religious education (though typically the senior minister will have such education). That is true of my church (the Church of Christ, not to be confused with the United Church of Christ), and I think it may be true of some black churches. It may be especially true of churches that are made up of, or historically were made up of, largely those who could not afford formal religious education, and of others who think that God may call anyone to the role of minister. John Leland, for example , the very influential Baptist minister at the time of the Founding, did not have formal religious training. Initially he was not even ordained by a congregation or by other Baptist ministers. The concurrence by Justice Alito (joined by Justice Kagan) points out that ordination is not a reliable indicator of whether someone is a "minister" within the meaning of the ministerial exception. By the way, I will be moderating a panel on the ministerial exception at Pepperdine's Feb. 23-25 conference entitled "The Competing Claims of Law & Religion: Who Should Influence Whom?" (The scheduled panelists are Ian Bartrum, Caroline Mala Corbin, Paul Horwitz, Michael P. Moreland, and Nora O'Callaghan. Many others of you will be speaking there, but for those of you who don't know about it, the information is here: http://law.pepperdine.edu/nootbaar/news-events/events/law-and-religion/. The conference is sponsored by Pepperdine Law School's Herbert and Elinor Nootbaar Institute on Law, Religion and Ethics. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law ___ 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.
Re: Hosanna-Tabor
-boun...@lists.ucla.edu] > On Behalf Of Marci Hamilton [hamilto...@aol.com] > Sent: Wednesday, January 11, 2012 9:45 PM > To: Law & Religion issues for Law Academics > Cc: Law & Religion issues for Law Academics > Subject: Re: Hosanna-Tabor > > I agree with David, though I would characterize the Court's paradigmatic > concern as being about the right to choose selection criteria. Catholics and > Orthodox Jews plainly have the right to favor men over women and Hosanna > Tabor Lutherans have the right to choose mediators instead of litigators. I > am not persuaded by Howard's characterization of some kind of institutional > autonomy. The unanimous decision is too carefully parsed for that to be a > touchstone for future interpretation. The way the decision is constructed > and explained, there are many open questions and every case will be fact > specific. > Except we know for sure that there is no jurisdictional bar so cases will > have to be scrutinized by the courts and subject to judicial interpretation. > Marci > > On Jan 11, 2012, at 8:58 PM, David Cruz wrote: > >> It seems to me an easy distinction between the case of the undocumented >> minister posited by Howard and today's case is that if the government >> deports someone for being unlawfully present, that is in no way predicated >> upon a decision by a church to select that person as a minister; the >> church's decision is simply irrelevant to the government's legal claim for >> deportation. Wrongful termination suits, grounded in tort law or >> antidiscrimination law, however, do depend upon a church's reasons for >> firing someone, which is what I take the Court's opinion to be getting at. >> Similar reasoning would apply to questions of ministers' arrestability. The >> emphasis, it seems to me, should be less on civil "interference" with >> employment clergy and more on civil interference with "selection" (or >> de-selection) of clergy. >> >> David B. Cruz >> Professor of Law >> University of Southern California Gould School of Law >> Los Angeles, CA 90089-0071 >> U.S.A. >> >> On Jan 11, 2012, at 4:54 PM, "Friedman, Howard M." >> wrote: >> >>> I think that the decision has much broader implications for church >>> autonomy. I have just developed this argument in some detail in a posting >>> on Religion Clause, for those who may be interested in reading it. >>> http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html >>> I welcome any reactions. >>> >>> Howard Friedman >>> >>> >>> -Original Message- >>> From: religionlaw-boun...@lists.ucla.edu on behalf of John Taylor >>> Sent: Wed 1/11/2012 3:26 PM >>> To: Law & Religion issues for Law Academics >>> Subject: RE: Hosanna-Tabor >>> >>> There was a very good panel on the case at AALS Saturday morning (organized >>> by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and >>> Leslie Griffin) and it included, among other things, an exchange between >>> Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. >>> While both acknowledged that they were overstating their differences, the >>> contrast (as I understood it) was one between viewing the ministerial >>> exception as completely (or almost completely) about the judicial >>> disability "to decide religious questions" (a.k.a. the "hands-off" >>> principle, the "no religious decisions" principle per Eugene) and viewing >>> it as protecting certain kinds of decisions made by religious groups >>> whether religious questions have to be decided or not. (Maybe I've got >>> that all wrong, and if so my apologies to Rick and Bob.) >>> >>> While I agree that "autonomy" is a loaded word that the majority did not >>> use and I agree that this case doesn't and isn't meant to reach beyond >>> employment discrimination claims by "ministers," the second view does seem >>> to me potentially a bit broader than the first. For example, Caroline >>> Corbin and Leslie Griffin suggested at the panel that since this was a >>> retaliation case, all the court really had to decide was whether there had >>> been retaliation and this was not a religious question. (Their argument, I >>> think, was that the church's response -- "it was retaliation based on >>>
RE: Hosanna-Tabor
No, the framing in terms of "physical acts" is not terribly descriptively useful here. But to adapt your language, one way we might see this decision, and certainly the issues it raises, is that it raises the very question of what "concerns the state" and what "concerns the church," rather than simply assuming that anything that "concerns the state" in some way should be characterized as necessarily falling within its jurisdiction, or simply assuming that what "concerns the church" is wholly residual or a matter of the state's grace. In that sense, this *relationship* "concerned the church" and fell outside the state's purview, even if it involved what one might describe as dignitary and economic harms. In any event, I'm far from satisfied that it's clear that the potential dignitary and economic harms here weren't obviated by the fact that her employment was as a religious leader. At least in some cases, it seems quite relevant to me. Regards, Paul Horwitz University of Alabama School of Law > From: dc...@law.usc.edu > To: religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edu > Date: Wed, 11 Jan 2012 08:56:31 -0800 > Subject: Re: Hosanna-Tabor > > 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" 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
RE: Hosanna-Tabor
Dear Mark, In my view, one of the welcome aspects of the Chief Justice's opinion is that it seems to make the *reason* for the employment action in question irrelevant . . . assuming we are dealing with a ministerial employee who is challenging his or her termination: The EEOC and Perich suggest that Hosanna-Tabor’s asserted religious reason for firing Perich—that she violated the Synod’s commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exceptioninstead ensures that the authority to select and controlwho will minister to the faithful—a matter "strictly ecclesiastical," Kedroff, 344 U. S., at 119—is the church’s alone.4 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 Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Wednesday, January 11, 2012 11:19 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor What if the church board fires a minister and admits, prior to the filing of an action, that it was not for religious reasons but because he was disabled or because of his race or for some other reason that ordinarily would be impermissible. If the church states that there is no religious reason for the firing – if it says that the discrimination is not based on any religious tenet – does the Court’s holding protect the church? Perhaps the point is that a court simply can’t take cognizance of a religious organization’s reason for firing a minister, or involve itself in such a case, even if there is no dispute about the reason being nonreligious. But I’m not sure. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz Sent: Wednesday, January 11, 2012 5:58 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Hosanna-Tabor It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil "interference" with employment clergy and more on civil interference with "selection" (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 4:54 PM, "Friedman, Howard M." mailto:howard.fried...@utoledo.edu>> wrote: I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability "to decide religious questions" (a.k.a. the "hands-off" principle, the "no religious decisions" principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that "autonomy" is a loade
Re: Hosanna-Tabor
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" 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.
RE: Hosanna-Tabor
Professor Friedmans thoughtful post shows that the decision raises a line of questions regarding the IRS position on eligibility for the Parsonage exemption (see excerpt from IRS Audit Guide below) and local real property tax exemptions for clergy occupied properties . Can I be a minister for limiting my litigation rights upon termination but not be entitled to parsonage. Does the IRS have the right to determine if an applicant was commissioned ..and was a duly qualified member? Why differentiate between teaching at theological seminaries and religious studies in grade schools ? Who Qualifies For Special Tax Treatment As A Minister To qualify for the special tax provisions available to ministers, an individual must be a minister and must perform services in the exercise of his ministry. Treas. Reg. § 1.107-1(a) incorporates the rules of Treas. Reg. § 1.1402(c)-5 in determining whether the individual is performing the duties of a minister of the gospel. Treas. Reg. § 1.1402(c)-5 requires that an individual be a duly ordained, commissioned, or licensed minister of a church. The Tax Court has interpreted this phrase to be disjunctive, finding the purpose is not to limit benefits to the ordained, but is to prevent self appointed ministers from benefiting. Salkov v. Commissioner, 46 T.C. 190, 197 (1966). The Tax Court in Salkov held that a Jewish cantor was a minister eligible for the IRC § 107 housing allowance. Id. at 198-99. It concluded that the petitioner qualified because he was commissioned by, and was a duly qualified member of the Cantors Assembly of America, which functions as the official cantorial body for the Conservative branch of the Jewish religion in America, and because he was selected by a representative Conservative congregation to perform the functions of cantor. Id. at 197. Treas. Reg. § 1.1402(c)-5(b)(2) provides that service performed by a minister in the exercise of the ministry includes: a. Ministration of sacerdotal functions; b. Conduct of religious worship; c. Control, conduct, and maintenance of religious organizations (including the religious boards, societies, and other integral agencies of such organizations), under the authority of a religious body constituting a church or denomination. Treas. Reg. § 1.1402(c)-5(b)(2) also provides that whether service performed by a minister constitutes conduct of religious worship or ministration of sacerdotal functions depends on the tenets and practices of the particular religious body constituting the church or denomination. Treas. Reg. § 1.107-1(a) also provides examples of specific services considered duties of a minister, including: a. Performance of sacerdotal functions; b. Conduct of religious worship; c. Administration and maintenance of religious organizations and their integral agencies; d. Performance of teaching and administrative duties at theological seminaries. The duties performed by the individual are also important to the initial determination whether he or she is a duly ordained, commissioned, or licensed minister. Because religious disciplines vary in their formal procedures for these designations, whether an individual is duly ordained, commissioned, or licensed depends on these facts and circumstances SAMUEL M. KRIEGER Krieger & Prager LLP skrie...@kplawfirm.com Tel: (212) 363-2900 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Wednesday, January 11, 2012 7:49 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church. html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability "to decide religious questions" (a.k.a. the "hands-off" principle, the "no religious decisions" principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious qu
RE: Hosanna-Tabor
I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability "to decide religious questions" (a.k.a. the "hands-off" principle, the "no religious decisions" principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that "autonomy" is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by "ministers," the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- "it was retaliation based on religious principle" -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about "disability to decide religious questions," but it has little force if one simply says, "Look, the idea that religious groups get to decide who will play important spiritual roles without state interference is very old, and state interference in the selection of clergy is at the core of what the Establishment Clause meant to forbid. If she's a minister, the state can't second-guess that decision in an employment discrimination suit. Period." At least to me, the majority opinion reads like the quote at the end of the last paragraph. It doesn't seem to hold out any possibility that some employment discrimination cases might be within the judiciary's competence to decide if only it could do so without getting into "religious questions." One could perhaps reach the same result by saying "Where it's a discrimination claim, religious questions will always be involved and thus the no-religious-decisions principle explains everything." Some panelists on Saturday appeared to express that view, and it might be correct. But it's striking to me that this argument is made only by Alito. The majority opinion seems to me closer in spirit to Rick's idea that maybe the hiring and firing of ministers is a matter of sphere sovereignty -- the state's authority to regulate here just runs out. I think this is also the approach Doug asked them to take, and it's pretty similar to what we used to call "church autonomy" back in the day. I understand the (good) reasons for some discomfort with the term, but I'm not sure the idea is all that different. (At least in this context, I'm not sure that the difference between "autonomy" and "internal church governance" amounts to much. Again, I agree with Marci and Doug that if this is "church autonomy," it doesn't reach outside employment discrimination.) John Taylor Professor and Associate Dean for Academic Affairs WVU College of Law >>> Alan Brownstein 1/11/2012 2:08 PM >>> While there is a lot of merit in what Eugene writes, it seems to me that he is identifying three arguments in support of the ministerial exemption: 1. It has strong historical roots. 2. There is a freedom of association dimension to it. 3. It is very circumscribed in its scope and involves far less judicial intrusion into executive and legislative decisions. All are valid
RE: Hosanna-Tabor
us worship and practice? And if the expressive associational dimension of religious groups choosing their leader is part of the foundation of this decision, one might argue that freedom of speech and association doctrine undermine the claim that organizations expressing a particular viewpoint (here, religious beliefs) should receive greater protection against government regulations than organizations expressing an alternative viewpoint (secular ideas). 3. One could draw other narrow zones protecting religious decisions and practice that limit judicial intrusion into legislative and executive authority. Let me be clear that I am not suggesting that the Court was incorrect in recognizing a ministerial exemption. (I think it was correct in doing so.) And it may be that the historical foundation for such an exemption is so strong that it can be distinguished from any traditionally recognized exemption for religious individuals or congregations. But I think there is more to this argument than the three very relevant points that Eugene identifies or that are captured by the terms "physical acts" and "internal church governance." Alan Brownstein -----Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, January 11, 2012 9:06 AM To: Law & Religion issues for Law Academics Cc: Eric J Segall Subject: RE: Hosanna-Tabor I agree with Doug on this, and want to add one item: The Sherbert/Yoder regime put courts in the position of having to evaluate a vast range of laws -- antidiscrimination laws, animal cruelty laws, assisted suicide bans, child labor laws, compelled testimony laws, copyright laws, drug laws, tax laws, traffic laws, zoning laws, and more -- in lawsuits brought by anyone who could sincerely claim a religious objection to their application to him (a group that might start small for each law, but might well grow as the availability of exemptions led people, subconsciously or deliberately, to assert convenient religious beliefs). The Smith majority rebelled (I think correctly) against having federal courts deciding in each case whether the government interest was "compelling" enough and whether the law was really "necessary" to serve the interest, which is to say against having federal courts constantly second-guessing the legislature's moral and practical judgment behind a vas! t range of laws. (This is also, I think, why the Court has provided extremely modest protection against content-neutral restrictions on expressive conduct, both imposing in O'Brien a much more deferential test than strict scrutiny and then holding in Rumsfeld v. FAIR that the protection would in any event only apply to a narrow range of conduct that was expressive on its own.) Hosanna-Tabor puts courts in the position of constraining legislative judgment only as to a narrow range of conduct: church selection of ministers. Despite the Court's point that the right is not the same as the right to freedom of association, this zone of judicial control is already not far from the zone where judges have to protect expressive associations' rights to choose leaders and members. What's more, this is a zone where there has been a much more solid and consistent history of immunity from governmental control. And in any event, it's just substantively quite a narrow zone. So while the private interest involved in Smith and Hosanna-Tabor may be comparable -- or in some Smith cases even greater -- and the government interest may often be similar (indeed, Smith applies to antidiscrimination laws themselves), the magnitude of the judicial intrusion in Sherbert/Yoder is much greater than in Hosanna-Tabor. And that, I think, rightly makes a big difference. Eugene ___ 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.
RE: Hosanna-Tabor
I agree with Doug on this, and want to add one item: The Sherbert/Yoder regime put courts in the position of having to evaluate a vast range of laws -- antidiscrimination laws, animal cruelty laws, assisted suicide bans, child labor laws, compelled testimony laws, copyright laws, drug laws, tax laws, traffic laws, zoning laws, and more -- in lawsuits brought by anyone who could sincerely claim a religious objection to their application to him (a group that might start small for each law, but might well grow as the availability of exemptions led people, subconsciously or deliberately, to assert convenient religious beliefs). The Smith majority rebelled (I think correctly) against having federal courts deciding in each case whether the government interest was "compelling" enough and whether the law was really "necessary" to serve the interest, which is to say against having federal courts constantly second-guessing the legislature's moral and practical judgment behind a vas! t range of laws. (This is also, I think, why the Court has provided extremely modest protection against content-neutral restrictions on expressive conduct, both imposing in O'Brien a much more deferential test than strict scrutiny and then holding in Rumsfeld v. FAIR that the protection would in any event only apply to a narrow range of conduct that was expressive on its own.) Hosanna-Tabor puts courts in the position of constraining legislative judgment only as to a narrow range of conduct: church selection of ministers. Despite the Court's point that the right is not the same as the right to freedom of association, this zone of judicial control is already not far from the zone where judges have to protect expressive associations' rights to choose leaders and members. What's more, this is a zone where there has been a much more solid and consistent history of immunity from governmental control. And in any event, it's just substantively quite a narrow zone. So while the private interest involved in Smith and Hosanna-Tabor may be comparable -- or in some Smith cases even greater -- and the government interest may often be similar (indeed, Smith applies to antidiscrimination laws themselves), the magnitude of the judicial intrusion in Sherbert/Yoder is much greater than in Hosanna-Tabor. And that, I think, rightly makes a big difference. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Douglas Laycock > Sent: Wednesday, January 11, 2012 8:42 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, Januar
Re: Hosanna-Tabor
I agree. :-) And great to have seen you in DC! David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 6:49 PM, "Marci Hamilton" mailto:hamilto...@aol.com>> wrote: I agree with David, though I would characterize the Court's paradigmatic concern as being about the right to choose selection criteria. Catholics and Orthodox Jews plainly have the right to favor men over women and Hosanna Tabor Lutherans have the right to choose mediators instead of litigators. I am not persuaded by Howard's characterization of some kind of institutional autonomy. The unanimous decision is too carefully parsed for that to be a touchstone for future interpretation. The way the decision is constructed and explained, there are many open questions and every case will be fact specific. Except we know for sure that there is no jurisdictional bar so cases will have to be scrutinized by the courts and subject to judicial interpretation. Marci On Jan 11, 2012, at 8:58 PM, David Cruz mailto:dc...@law.usc.edu>> wrote: It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil "interference" with employment clergy and more on civil interference with "selection" (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 4:54 PM, "Friedman, Howard M." mailto:howard.fried...@utoledo.edu>> wrote: I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability "to decide religious questions" (a.k.a. the "hands-off" principle, the "no religious decisions" principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that "autonomy" is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by "ministers," the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- "it was retaliation based on religious principle" -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about "disability to decide religious questions," but it has little force if one simply says, "Look, the idea that religious groups get to decide who will play important spiritual roles without state inter
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 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.
Re: Hosanna-Tabor and the "Ministerial Exception"
Thanks, Rick. I agree, as a general matter at least, that the debate involves "at some point thinking about the limits on government power." I had suggested that those limits should be understood as involving matters, in some important sense internal to religious organizations, in which the state has no legitimate *interest* (such as who should receive sacraments), and/or in which the state has no *competence* (such as determining who is * deserving* of such sacraments -- a decision that turns on religious questions that the state cannot possibly assess). In response, you appear to suggest that even where the state does have an interest, and I assume even where the state has competence to adjudicate the question at hand (as in Hosanna-Tabor itself, where it is *conceded* that the school fired Perich because she threatened to exercise her ADA rights), there might still be some cases where the state simply "lacks power over [the] matter." I confess that I'm not sure what you're getting at here, other than to restate the question of how far the ministerial immunity should extend. Why, exactly, does the state lack "power," in a constitutional sense -- * without* any need for balancing -- over a question in which it has obviously has a significant interest (such as ensuring that employees employed in positions offering commercial services to the public are not discharged for exercising their statutory rights), and about which it would not need to adjudicate any religious questions about which it lacks competence? Perhaps an exception is constitutionally compelled in some such cases, because of the balance of state and organizational interests -- that's the question presented in H-T; but I understand you to be making a more fundamental point about subject matters that are simply beyond the constitutional authority of the state and federal governments, even where such state interests and competence are present. Is that correct? If so, what's the basis for the "disempowerment"? Thanks again, Marty On Tue, Aug 16, 2011 at 6:21 PM, Rick Garnett wrote: > Dear Marty, > > My aim was a pretty modest one: Just to flag the possibility that the > ministerial-exception debate involves, at some ponit, thinking about the > limits on government power, and not just the costs and benefits of > government action. As for the question, where does the H-T case itself fit > . . . I don't agree with you that this case is a "far cry" from what I take > to be the case-at-the-core, but I suspect that is because you and I disagree > about the extent to which Ms. Perich's position is a ministerial one. (And, > I suspect we won't resolve that disagreement here!) > > I wonder, is it so clear that the state lacks any "interest" in "internal > religious matters"? I'm not sure. I guess -- sorry for being a broken > record -- I'd rather say that it lacks power over such matters. > > Hope you are well -- R > > > 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 Marty Lederman [ > lederman.ma...@gmail.com] > *Sent:* Tuesday, August 16, 2011 5:28 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Hosanna-Tabor and the "Ministerial Exception" > > Rick: I'm not exactly sure whether you mean to suggest that > Hosanna-Tabor itself is an example of your second sort of case, i.e., as > involving something "the state lacks the power to regulate." > > I think we would all agree with you that, at least without more, the state > "lacks the power" to "tell a Roman Catholic bishop that he had to confer the > sacrament of Holy Orders on a person whom that Bishop did not think was > suitable" -- not only because that decision would almost certainly involve a > question of religious doctrine or suitability about which the state has no > competence to opine, but also, and perhaps more fundamentally, because the > state simply has no real interest in regulating such decisions. > > And, as it turns out, we really don't have to worry about such cases: > Because states have no interest in such internal religious matters as > conferral of sacraments, states in practice have not even attempted (so far > as I know) to regulate such conferrals. (I would note, however, for what > it's worth, that Part I of the Employment Lawyers amicus brief -- > http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_responden
RE: Hosanna-Tabor and the "Ministerial Exception"
Dear Marty, My aim was a pretty modest one: Just to flag the possibility that the ministerial-exception debate involves, at some ponit, thinking about the limits on government power, and not just the costs and benefits of government action. As for the question, where does the H-T case itself fit . . . I don't agree with you that this case is a "far cry" from what I take to be the case-at-the-core, but I suspect that is because you and I disagree about the extent to which Ms. Perich's position is a ministerial one. (And, I suspect we won't resolve that disagreement here!) I wonder, is it so clear that the state lacks any "interest" in "internal religious matters"? I'm not sure. I guess -- sorry for being a broken record -- I'd rather say that it lacks power over such matters. Hope you are well -- R 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 Marty Lederman [lederman.ma...@gmail.com] Sent: Tuesday, August 16, 2011 5:28 PM To: Law & Religion issues for Law Academics Subject: Re: Hosanna-Tabor and the "Ministerial Exception" Rick: I'm not exactly sure whether you mean to suggest that Hosanna-Tabor itself is an example of your second sort of case, i.e., as involving something "the state lacks the power to regulate." I think we would all agree with you that, at least without more, the state "lacks the power" to "tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable" -- not only because that decision would almost certainly involve a question of religious doctrine or suitability about which the state has no competence to opine, but also, and perhaps more fundamentally, because the state simply has no real interest in regulating such decisions. And, as it turns out, we really don't have to worry about such cases: Because states have no interest in such internal religious matters as conferral of sacraments, states in practice have not even attempted (so far as I know) to regulate such conferrals. (I would note, however, for what it's worth, that Part I of the Employment Lawyers amicus brief -- http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_respondentamcunela.authcheckdam.pdf -- appears to provide a pretty compelling account of how U.S. courts regularly adjudicated actual ministers' suits against churches quite regularly throughout most of our early history -- in contract claims and the like -- and sometimes ordered reinstatement without any suggestion of constitutional barriers.) But that's a far cry from this case, right? Here, Perich threathened to file an ADA suit when she suspected that the school would not allow her to teach because of her disability. The school thereafter concededly fired her from her teaching job because she threatened to file such an ADA claim -- what would be a clear violation of the ADA anti-retailiation provision if there were no constitutional barrier. Whatever else may be true about the case and the propriety of applying the ministerial exception, surely the state does not lack an interest, or "lack the power," to prohibit firing from a teaching position on the basis of disability, or on the basis of retaliation for threathening to enforce that antidiscrimination norm -- at the very least (as here) where the teacher's duties included the teaching of secular subjects in a school offering services for a fee to the public as a whole. That is to say, this is a far cry (isn't it?) from the case you posit, in which the state would (as no state does) try to regulate the question of who is worthy to conferral of sacrements. The state's legitimate interest in that case would be very difficult to identify and defend. But here there is no such problem. On Tue, Aug 16, 2011 at 12:57 PM, Rick Garnett mailto:rgarn...@nd.edu>> wrote: Dear colleagues, For what it’s worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci’s statement that those of us who contend that “church autonomy” is a crucial dimension of religious freedom through law are claiming “immunity from the law [for religious communities] because they are religious.” As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I “hear” the debate, it seems to me that those of us who think “church autonomy” is part of religi
Re: Hosanna-Tabor and the "Ministerial Exception"
lined to think, but some) the state lacks the power to > regulate. So, the reason why a court could not tell a Roman Catholic bishop > that he had to confer the sacrament of Holy Orders on a person whom that > Bishop did not think was suitable is not because the Church’s > religious-freedom interests somehow “outweigh” the interests of the person > demanding the sacrament and / or the interests of the state in vindicating > either that person’s interests or its own (whatever they might be), thereby > warranting, all things considered, an exemption. It is, instead, that a > government constitutionally committed to religious freedom is / should be > one that lacks, and does not claim, the authority to supervise the Bishop’s > decision in this matter. > > ** ** > > Again, I am inclined to think that most of the time, when we talk about > religious freedom, we are talking about, and it makes sense to talk about, > the costs and benefits of exemptions from otherwise justifiable police-power > regulations. But I also think it makes sense – even if we rarely want or > need to invoke – the limits-of-secular-power dimension of the > religious-freedom conversation. > > ** ** > > Best, > > ** ** > > Rick > > ** ** > > ** ** > > ** ** > > Richard W. Garnett > > Professor of Law and Associate Dean > > Notre Dame Law School > > P.O. Box 780 > > Notre Dame, Indiana 46556-0780 > > ** ** > > 574-631-6981 (w) > > 574-276-2252 (cell) > > ** ** > > SSRN page <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> > > > ** ** > > Blogs: > > ** ** > > Prawfsblawg <http://prawfsblawg.blogs.com/> > > Mirror of Justice <http://www.mirrorofjustice.blogs.com/> > > Law, Religion, and Ethics <http://lawreligionethics.net/> > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com > *Sent:* Tuesday, August 16, 2011 11:47 AM > > *To:* religionlaw@lists.ucla.edu > *Subject:* Re: Hosanna-Tabor and the "Ministerial Exception" > >** ** > > Paul-- I don't disagree with the substance of what you say. Absolute > liberty, or autonomy, is not the US Constitution's role (except when we are > talking about the right to believe). There is always the possibility that > the government can justify burdens on liberty. > > > > What "church autonomy" means for those who advocate for it, as indicated in > the LDS/RCC bishops's HT brief, is immunity from the law, because they are > religious. Their interpretation is much closer to the "licentiousness" > interpretation of "liberty" firmly rejected by the framing and founding > generations. The fact they are using it in sexual misconduct cases itself > should be revealing. (Look at the amicus brief filed by the LDS in a > footnote in my amicus brief (there is a web address). That case involved a > woman alleging she was sexually assaulted by a cantor. She went to her > rabbi, who she says then sexually propositioned her. The LDS filed an > amicus brief, joined by RCC Bishops, arguing for "autonomy" from the law in > that case.) > > > > If they were arguing for a "measure of autonomy" in the courts, I would not > feel so compelled to focus a light on its usage. "Ordered liberty" captures > the notion of measured liberty or freedom far better than "autonomy." *** > * > > > > Just a footnote on abortion. Women have not had "autonomy" from the > medical establishment in the abortion context -- the right has always been > mediated somewhat and never involved solely the question of a woman's power > over her body. But that is for a different thread. > > > > Marci > > > > In a message dated 8/16/2011 10:58:45 A.M. Eastern Daylight Time, > phorw...@hotmail.com writes: > > To analogize roughly to the abortion cases (and it's just an analogy, > nothing more), the courts have said that women have a right to obtain > abortions, and one somewhat undertheorized piece of that conclusion is that > women are entitled to some autonomy in making important decisions. But it > has also said that this right must necessarily be subject to limits. One > could argue on this basis that because women's right to an abortion can be > limited by the state, a limit that is subject to weighing by the courts, any > talk of women's autonomy must be illusory -- doesn't autonomy mea
Re: Hosanna-Tabor and the "Ministerial Exception"
If the Court upholds a ministerial exception, it is only fair for the federal government and the states to amend their anti-discrimination laws to require employers otherwise covered to disclose to their religious employees that they will not have the protection of the anti-discrimination laws if they accept the employment of this religious organization. We live in a culture where there is a basic assumption that it is wrong to discriminate. Employees in these cases are typically in shock that the religious organization could have a First Amendment or any other defense to otherwise illegal discrimination. I have never spoken to Ms. Perich, but I can imagine that it came as a surprise to her that her employer (1) would engage in disability discrimination against her, and (2) then raise the First Amendment to permit such discrimination. The same is true in the cases involving gender and race discrimination (especially where the original appointment had no gender/race requirement). (If anyone thinks that religious organizations do not engage in invidious gender or race discrimination not motivated by their religious beliefs, I would be happy to put you in touch with various victims who would say otherwise.) A disclosure requirement would be the least that would need to be done to level the playing field between religious organizations and their employees. Marci In a message dated 8/16/2011 4:28:59 P.M. Eastern Daylight Time, howard.fried...@utoledo.edu writes: As for the reasons for the ministerial exception, part of it is surely about erroneous determination of motive. And part is about reinstatement. But I think there's something else too. Religion is supposed to be this voluntary thing. We can all think of how this is true for religious beliefs and practices-we see it everywhere from Torcaso v. Watkins to Santa Fe v. Doe. But it's true too for religious associations, which should be chosen by people and not imposed by the state. The ministerial exception is part of that voluntary principle. By creating a kind of constitutionalized at-will employment, it guarantees that when congregations and clergy stay together, it's because they choose to do so. Now I don't know if it will survive, but I think that's a big part of why the ministerial exception has persisted all these years. Best, ___ 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.
RE: Hosanna-Tabor and the "Ministerial Exception"
Chris-- There are a number of statements in the SG's brief that suggest the government is limiting its argument to the anti-retaliation provisions, without taking a position beyond that. E.g. the policy arguments in part III of the brief all focus on policies relating to retaliation claims. The headings on parts I. and II. of the brief refer only to the anti-retaliation provisions. And at pp. 19- 20, the brief argues: **In particular, petitioner urges the Court to adopt a categorical rule that would bar adjudication of any suit including the ADA retaliation suit at issue in this case concerning a religious employers termination of an employee who performs important religious functions This Court, however, has repeatedly made clear that it will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. ... Although significant constitutional questions may arise in other cases concerning the application of the civil rights laws to religious entities, neither the Free Exercise Clause, nor the right to freedom of association, nor the Establishment Clause, stands as an impediment to adjudication of Perichs claim that she was unlawfully terminated from her teaching position for exercising her rights under the ADA.** As for your issue of religion as voluntary, that is certainly so for adherents of a faith. But for employees who rely on religious institutions for their livelihood-- often under contracts with them-- it is more than just a voluntary relationship. The civil rights laws are exceptions to the common law employment-at-will doctrine. A broad ministerial exception is a rule that religious institutions (and only such institutions) are constitutionally entitled to rely on the employment at will doctrine without legislative modification. There is good reason for that kind of rule when the issue is whether a teacher's views conform to beliefs of the church, or when the issue is whether congregants like the minister's sermon or the cantors voice. There is reason for it when the denomination only recognizes male clergy and refuses to hire a woman pastor (or priest or rabbi or imam). It may even be that an exception is arguably justified for the church that espouses white supremacist racial doctrines when it refuses to hire clergy that are not Caucasian. But it seems to me there is less reason to give a pass to the church board that is bigoted and refuses to hire-- or fires-- an employee on racial grounds in the face of formal church doctrine that calls for racial equality. There the only justification is that usually there is a dispute about whether the firing was racially motivated, and subjecting the church to a remedy (particularly of reinstatement) when the court's determination on motive could have been erroneous is a risk we are unwilling to impose. Howard Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Tue 8/16/2011 1:49 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Thanks, Howard. Is there something in the SG's brief that suggests that it thinks there would be a ministerial exception to the anti-discrimination provisions, but not the anti-retaliation provisions? I may have missed it. The idea is interesting, but I have trouble seeing why the ministerial exception would apply to one but not the other. You say that there may be less risk of erroneous determination of motive in retaliation cases. Maybe you could explain further, I'm not sure I know what you mean. In both discrimination and retaliation cases, courts use the McDonnell Douglas burden-shifting scheme, where juries pass on the church's alleged nondiscriminatory reasons in deciding the existence of discrimination or retaliation. Won't the problematic considerations of job performance (i.e., did the plaintiff-who, by hypothesis, had significant religious duties-do those religious duties well or not?) enter equally into both sets of cases? As for the reasons for the ministerial exception, part of it is surely about erroneous determination of motive. And part is about reinstatement. But I think there's something else too. Religion is supposed to be this voluntary thing. We can all think of how this is true for religious beliefs and practices-we see it everywhere from Torcaso v. Watkins to Santa Fe v. Doe. But it's true too for religious associations, which should be chosen by people and not imposed by the state. The ministerial exception is part of that voluntary principle. By creating a kind of constitutionalized at-will employment, it guarantees that when congregations and clergy stay together, it's because they choose to do so. Now I don't know if it will survive, but I think that's a
RE: Hosanna-Tabor and the "Ministerial Exception"
I haven't given the question a lot of thought, but it would seem to me that that the "limits of the state police powers" argument would probably be grounded on a secular purpose requirement. Government cannot interfere with the decision to hire or fire someone as clergy for exclusively and intrinsically religious reasons (e.g. G-d would prefer the church to appoint candidate A rather than candidate B; Candidate A is a better spiritual leader for the congregation) Beyond that, when the state asserts a rational health, safety, general welfare or moral justification for its actions, it is hard for me to see how the "limits of the state powers" arguments comes into play. Then, I think, we are in the world of institutional-competence / no-entanglement / interest-balancing / arguments for shielding the church against state power. Whether a lack of secular purpose analysis would give you a different answer than the institutional-competence / no-entanglement / interest-balancing / analysis in some real world circumstances would probably depend on how the secular purpose requirement is interpreted and enforced. Were you thinking that there are situations where the state lacks regulatory power to intrude into church decisions even though the state has a rational health, safety, general welfare or moral purpose for its actions. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 10:49 AM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Dear Alan, I don't think I was getting to the level of distinct rules; I was just trying to separate out (or, at least distinguish) two ways of thinking about the problem. My "gut"-level sense is that, in practice, the institutional-competence / no-entanglement / interest-balancing / "is an exemption warranted, all things considered?" approach will usually yield (what I would regard as) the right answer in those (rare) circumstances when we are dealing with the limits (not the advisability of exercising) the state's police powers. What do you think? Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Tuesday, August 16, 2011 1:39 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Just to make sure that I am understanding Rick's argument correctly. Rick, are you suggesting that there are two constitutional rules regarding "church autonomy." One rule calls for the evaluation of institutional competence, no-entanglement, and general interest balancing issues as to which some form of balancing is necessary and appropriate. A second rule involves a limited class of circumstances as to which the state simply lacks power to regulate the decision at issue. And at least part of what distinguishes rule 1 from rule 2 is that the line drawn for rule 2 is not determined by evaluating the institutional competence, no-entanglement and general interest balancing issues that determine the content of rule 1. (Actually, I suppose there would be three rules. Rule 3 would apply the holding of Employment Division v. Smith to religious institutions in those circumstances in which the "autonomy" of religious institutions receives no protection against neutral laws of general applicability.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 9:57 AM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that "church autonomy" is a crucial dimension of religious freedom through law are claiming "immunity from the law [for religious communities] because they are religious." As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I "hear" the debate, it seems to me that those of us who think &quo
RE: Hosanna-Tabor and the "Ministerial Exception"
Dear Alan, I don't think I was getting to the level of distinct rules; I was just trying to separate out (or, at least distinguish) two ways of thinking about the problem. My "gut"-level sense is that, in practice, the institutional-competence / no-entanglement / interest-balancing / "is an exemption warranted, all things considered?" approach will usually yield (what I would regard as) the right answer in those (rare) circumstances when we are dealing with the limits (not the advisability of exercising) the state's police powers. What do you think? Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Tuesday, August 16, 2011 1:39 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Just to make sure that I am understanding Rick's argument correctly. Rick, are you suggesting that there are two constitutional rules regarding "church autonomy." One rule calls for the evaluation of institutional competence, no-entanglement, and general interest balancing issues as to which some form of balancing is necessary and appropriate. A second rule involves a limited class of circumstances as to which the state simply lacks power to regulate the decision at issue. And at least part of what distinguishes rule 1 from rule 2 is that the line drawn for rule 2 is not determined by evaluating the institutional competence, no-entanglement and general interest balancing issues that determine the content of rule 1. (Actually, I suppose there would be three rules. Rule 3 would apply the holding of Employment Division v. Smith to religious institutions in those circumstances in which the "autonomy" of religious institutions receives no protection against neutral laws of general applicability.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 9:57 AM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that "church autonomy" is a crucial dimension of religious freedom through law are claiming "immunity from the law [for religious communities] because they are religious." As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I "hear" the debate, it seems to me that those of us who think "church autonomy" is part of religious freedom are saying two complementary but distinct things (I'm putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there are good reasons - having to do with institutional competence, the no-entanglement rule, interest-balancing, etc. -- to limit the role of the secular political authority in resolving and regulating disputes between "ministers" and religious communities (acting as employers). Who "counts" as a minister? Which religious communities are covered? What are the best procedures to employ in order to operationalize the "good reasons" mentioned above? These and others are questions that, as I think Paul and Marci have both said, involve balancing, trade-offs, predictions, etc. But, at least for me, there is another thing that is being said, and should be said: It's not all or only about balancing. In my view, the ministerial-exception debate is a reminder that, at some point, the state's interests, and its power, should run out. This is not a claim about "immunity", or special-purpose carve-outs from the application of otherwise applicable public authority; it is a claim that there are some things (not that many, I am inclined to think, but some) the state lacks the power to regulate. So, the reason why a court could not tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable is not because the Church's religious-freedom interests somehow "ou
RE: Hosanna-Tabor and the "Ministerial Exception"
Thanks, Howard. Is there something in the SG's brief that suggests that it thinks there would be a ministerial exception to the anti-discrimination provisions, but not the anti-retaliation provisions? I may have missed it. The idea is interesting, but I have trouble seeing why the ministerial exception would apply to one but not the other. You say that there may be less risk of erroneous determination of motive in retaliation cases. Maybe you could explain further, I'm not sure I know what you mean. In both discrimination and retaliation cases, courts use the McDonnell Douglas burden-shifting scheme, where juries pass on the church's alleged nondiscriminatory reasons in deciding the existence of discrimination or retaliation. Won't the problematic considerations of job performance (i.e., did the plaintiff-who, by hypothesis, had significant religious duties-do those religious duties well or not?) enter equally into both sets of cases? As for the reasons for the ministerial exception, part of it is surely about erroneous determination of motive. And part is about reinstatement. But I think there's something else too. Religion is supposed to be this voluntary thing. We can all think of how this is true for religious beliefs and practices-we see it everywhere from Torcaso v. Watkins to Santa Fe v. Doe. But it's true too for religious associations, which should be chosen by people and not imposed by the state. The ministerial exception is part of that voluntary principle. By creating a kind of constitutionalized at-will employment, it guarantees that when congregations and clergy stay together, it's because they choose to do so. Now I don't know if it will survive, but I think that's a big part of why the ministerial exception has persisted all these years. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Tuesday, August 16, 2011 11:55 AM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" It seems to me the SG is arguing that there is no ministerial exception from the anti-retaliation provisions of the ADA, but is not necessarily arguing the same as to the anti-discrimination provisions. This makes some sense, since-- to the extent that the ministerial exception doctrine is broader than the related ecclesiastical abstention doctrine-- it is designed to protect against imposing a burden on a religious organization to prove the reason for its employment action. I.e. we should not require a church to show that it dismissed an employee, who had a disability, for doctrinal reasons rather than because of the disability. There is likely less risk of erroneous determination of motive in retaliation cases. Beyond this, it seems to me that a missing piece in all of this is the employee's perspective. The cases and briefs posit the church's interest vs. the state's interest. However, from the perspective of the employee, the issue is protection against arbitrary employment action based on factors such as race, national origin or disability, where admittedly those have no relation to doctrinal concerns of the religious organization. Employees of religious organizations often tend to be underpaid as it is. Anyone who has worked with boards of non-profits knows that the possibility of petty motivations for employment actions are not eliminated just because of the religious overlay. Do we really want to make it riskier for individuals to pursue challenging positions with non-profits because they lack protection that every other employee in our society has? Is the risk or erroneous determination of motive strong enough to justify this? Particularly if we add the rule, as the SG's brief suggests, that reinstatement would not be a remedy? Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Tue 8/16/2011 10:08 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Marty asked for opinions on the briefs. Here is what I've been thinking, for whatever it's worth (probably very little). At the outset, I should say that my own views may be atypical, so I'm particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The lower courts have uniformly recognized the ministerial exception. So I assumed that this would be a fight mostly over its scope-does Cheryl Perich, because of her job duties and ecclesiastical office, fall within the ministerial exception or not? But the plaintiffs (the SG and Perich) do not go that way. They don't believe in any ministerial exception, at least as such. Relying on Smith and Jones v. Wolf, they say the ADA is neutral and generally applica
RE: Hosanna-Tabor and the "Ministerial Exception"
Just to make sure that I am understanding Rick's argument correctly. Rick, are you suggesting that there are two constitutional rules regarding "church autonomy." One rule calls for the evaluation of institutional competence, no-entanglement, and general interest balancing issues as to which some form of balancing is necessary and appropriate. A second rule involves a limited class of circumstances as to which the state simply lacks power to regulate the decision at issue. And at least part of what distinguishes rule 1 from rule 2 is that the line drawn for rule 2 is not determined by evaluating the institutional competence, no-entanglement and general interest balancing issues that determine the content of rule 1. (Actually, I suppose there would be three rules. Rule 3 would apply the holding of Employment Division v. Smith to religious institutions in those circumstances in which the "autonomy" of religious institutions receives no protection against neutral laws of general applicability.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 9:57 AM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that "church autonomy" is a crucial dimension of religious freedom through law are claiming "immunity from the law [for religious communities] because they are religious." As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I "hear" the debate, it seems to me that those of us who think "church autonomy" is part of religious freedom are saying two complementary but distinct things (I'm putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there are good reasons - having to do with institutional competence, the no-entanglement rule, interest-balancing, etc. -- to limit the role of the secular political authority in resolving and regulating disputes between "ministers" and religious communities (acting as employers). Who "counts" as a minister? Which religious communities are covered? What are the best procedures to employ in order to operationalize the "good reasons" mentioned above? These and others are questions that, as I think Paul and Marci have both said, involve balancing, trade-offs, predictions, etc. But, at least for me, there is another thing that is being said, and should be said: It's not all or only about balancing. In my view, the ministerial-exception debate is a reminder that, at some point, the state's interests, and its power, should run out. This is not a claim about "immunity", or special-purpose carve-outs from the application of otherwise applicable public authority; it is a claim that there are some things (not that many, I am inclined to think, but some) the state lacks the power to regulate. So, the reason why a court could not tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable is not because the Church's religious-freedom interests somehow "outweigh" the interests of the person demanding the sacrament and / or the interests of the state in vindicating either that person's interests or its own (whatever they might be), thereby warranting, all things considered, an exemption. It is, instead, that a government constitutionally committed to religious freedom is / should be one that lacks, and does not claim, the authority to supervise the Bishop's decision in this matter. Again, I am inclined to think that most of the time, when we talk about religious freedom, we are talking about, and it makes sense to talk about, the costs and benefits of exemptions from otherwise justifiable police-power regulations. But I also think it makes sense - even if we rarely want or need to invoke - the limits-of-secular-power dimension of the religious-freedom conversation. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> _
RE: Hosanna-Tabor and the "Ministerial Exception"
Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that "church autonomy" is a crucial dimension of religious freedom through law are claiming "immunity from the law [for religious communities] because they are religious." As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I "hear" the debate, it seems to me that those of us who think "church autonomy" is part of religious freedom are saying two complementary but distinct things (I'm putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there are good reasons - having to do with institutional competence, the no-entanglement rule, interest-balancing, etc. -- to limit the role of the secular political authority in resolving and regulating disputes between "ministers" and religious communities (acting as employers). Who "counts" as a minister? Which religious communities are covered? What are the best procedures to employ in order to operationalize the "good reasons" mentioned above? These and others are questions that, as I think Paul and Marci have both said, involve balancing, trade-offs, predictions, etc. But, at least for me, there is another thing that is being said, and should be said: It's not all or only about balancing. In my view, the ministerial-exception debate is a reminder that, at some point, the state's interests, and its power, should run out. This is not a claim about "immunity", or special-purpose carve-outs from the application of otherwise applicable public authority; it is a claim that there are some things (not that many, I am inclined to think, but some) the state lacks the power to regulate. So, the reason why a court could not tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable is not because the Church's religious-freedom interests somehow "outweigh" the interests of the person demanding the sacrament and / or the interests of the state in vindicating either that person's interests or its own (whatever they might be), thereby warranting, all things considered, an exemption. It is, instead, that a government constitutionally committed to religious freedom is / should be one that lacks, and does not claim, the authority to supervise the Bishop's decision in this matter. Again, I am inclined to think that most of the time, when we talk about religious freedom, we are talking about, and it makes sense to talk about, the costs and benefits of exemptions from otherwise justifiable police-power regulations. But I also think it makes sense - even if we rarely want or need to invoke - the limits-of-secular-power dimension of the religious-freedom conversation. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, August 16, 2011 11:47 AM To: religionlaw@lists.ucla.edu Subject: Re: Hosanna-Tabor and the "Ministerial Exception" Paul-- I don't disagree with the substance of what you say. Absolute liberty, or autonomy, is not the US Constitution's role (except when we are talking about the right to believe). There is always the possibility that the government can justify burdens on liberty. What "church autonomy" means for those who advocate for it, as indicated in the LDS/RCC bishops's HT brief, is immunity from the law, because they are religious. Their interpretation is much closer to the "licentiousness" interpretation of "liberty" firmly rejected by the framing and founding generations. The fact they are using it in sexual misconduct cases itself should be revealing. (Look at the amicus brief filed by the LDS in a footnote in my amicus brief (there is a web address). That case involved a woman alleging she was sexually assaulted by a cantor. She went to her rabbi, who she says then sexually propositioned her. The LDS filed an amicus brief, joined by RCC Bishops, arguing for "autonomy" from the law in that c
RE: Hosanna-Tabor and the "Ministerial Exception"
It seems to me the SG is arguing that there is no ministerial exception from the anti-retaliation provisions of the ADA, but is not necessarily arguing the same as to the anti-discrimination provisions. This makes some sense, since-- to the extent that the ministerial exception doctrine is broader than the related ecclesiastical abstention doctrine-- it is designed to protect against imposing a burden on a religious organization to prove the reason for its employment action. I.e. we should not require a church to show that it dismissed an employee, who had a disability, for doctrinal reasons rather than because of the disability. There is likely less risk of erroneous determination of motive in retaliation cases. Beyond this, it seems to me that a missing piece in all of this is the employee's perspective. The cases and briefs posit the church's interest vs. the state's interest. However, from the perspective of the employee, the issue is protection against arbitrary employment action based on factors such as race, national origin or disability, where admittedly those have no relation to doctrinal concerns of the religious organization. Employees of religious organizations often tend to be underpaid as it is. Anyone who has worked with boards of non-profits knows that the possibility of petty motivations for employment actions are not eliminated just because of the religious overlay. Do we really want to make it riskier for individuals to pursue challenging positions with non-profits because they lack protection that every other employee in our society has? Is the risk or erroneous determination of motive strong enough to justify this? Particularly if we add the rule, as the SG's brief suggests, that reinstatement would not be a remedy? Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Tue 8/16/2011 10:08 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Marty asked for opinions on the briefs. Here is what I've been thinking, for whatever it's worth (probably very little). At the outset, I should say that my own views may be atypical, so I'm particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The lower courts have uniformly recognized the ministerial exception. So I assumed that this would be a fight mostly over its scope-does Cheryl Perich, because of her job duties and ecclesiastical office, fall within the ministerial exception or not? But the plaintiffs (the SG and Perich) do not go that way. They don't believe in any ministerial exception, at least as such. Relying on Smith and Jones v. Wolf, they say the ADA is neutral and generally applicable-so there's no general constitutional problem with applying it to religious groups. The Solicitor General says that the relevant constitutional concerns should instead be handled by a bunch of discrete, narrower rules: (1) Dale, (2) a ban on forced reinstatement to ecclesiastical office, and (3) a ban on cases where (a) the church claims it fired the plaintiff for failing to adequately perform his or her religious duties and (b) the plaintiff has no separate evidence that this is pretext. Maybe it's just me, but I thought this a surprising position for the SG. This is, to my knowledge, a narrower view of the ministerial exception than any federal court has adopted. Courts have divided on what jobs and persons fall within the ministerial exception. But they have agreed that, for those jobs and persons, the ministerial exception is a categorical bar. The SG doesn't believe in a categorical bar. If I understand the SG's position right, a dismissed Catholic bishop could bring suit against the church under any of the discrimination laws, provided he only seeks damages and has evidence of pretext. In particular, there's a huge fight about the scope of the church autonomy precedents. Hosanna-Tabor relies heavily on them to establish a broad principle. The Solicitor General treats them just as "older cases concerning church-property disputes" (p. 11). All that dicta in Kedroff and other cases about church autonomy is now overruled by Smith; neutral and generally applicable laws control. Of course, the NLRA in Catholic Bishop was neutral and generally applicable. The principles of property, trust, and agency in Milivojevich were neutral and generally applicable (as then-Justice Rehnquist made clear in his dissent). But the SG's brief deals with these cases quickly, as if they were self-evidently irrelevant. Milivojevich gets just a few lines in the middle of p. 25. The SG quotes an in-chambers solo opinion by Justice Rehnquist, adopting his view of Milivojevich's holding-which, I note parenthetically, is weird because (1) it's
Re: Hosanna-Tabor and the "Ministerial Exception"
Paul-- I don't disagree with the substance of what you say. Absolute liberty, or autonomy, is not the US Constitution's role (except when we are talking about the right to believe). There is always the possibility that the government can justify burdens on liberty. What "church autonomy" means for those who advocate for it, as indicated in the LDS/RCC bishops's HT brief, is immunity from the law, because they are religious. Their interpretation is much closer to the "licentiousness" interpretation of "liberty" firmly rejected by the framing and founding generations. The fact they are using it in sexual misconduct cases itself should be revealing. (Look at the amicus brief filed by the LDS in a footnote in my amicus brief (there is a web address). That case involved a woman alleging she was sexually assaulted by a cantor. She went to her rabbi, who she says then sexually propositioned her. The LDS filed an amicus brief, joined by RCC Bishops, arguing for "autonomy" from the law in that case.) If they were arguing for a "measure of autonomy" in the courts, I would not feel so compelled to focus a light on its usage. "Ordered liberty" captures the notion of measured liberty or freedom far better than "autonomy." Just a footnote on abortion. Women have not had "autonomy" from the medical establishment in the abortion context -- the right has always been mediated somewhat and never involved solely the question of a woman's power over her body. But that is for a different thread. Marci In a message dated 8/16/2011 10:58:45 A.M. Eastern Daylight Time, phorw...@hotmail.com writes: To analogize roughly to the abortion cases (and it's just an analogy, nothing more), the courts have said that women have a right to obtain abortions, and one somewhat undertheorized piece of that conclusion is that women are entitled to some autonomy in making important decisions. But it has also said that this right must necessarily be subject to limits. One could argue on this basis that because women's right to an abortion can be limited by the state, a limit that is subject to weighing by the courts, any talk of women's autonomy must be illusory -- doesn't autonomy mean we don't get to ask any such questions at all? -- and these cases must be all about ordered liberty. But that would seem to me to be the wrong way of thinking about it. It would be better to say that the argument then concerns the degree to which women are entitled to decision-making autonomy within a system of law that imposes some outside limits. Really, this is the question we ask every time we balance individual rights against state needs -- and, either at a categorical level or on a case-by-case basis, we *always* do just that. Claims of individual or institutional autonomy are always balanced against other claims -- including, to give one relevant example here, claims that the state has a legitimate interest in addressing child sexual abuse and other serious wrongs. That doesn't mean there's no such thing as autonomy; it just means that autonomy is not an unlimited concept. To say some claim is subject to the principle of "ordered liberty" doesn't end the conversation, because what constitutes ordered liberty is the very point in contention. Similarly, in the ministerial exception cases, unless one is arguing either that the ministerial exception can't exist at all or that it is absolute, the question is the extent to which some degree of autonomy for religious institutions is consistent with some degree of acceptable state regulation for permissible ends. It is consistent with this view to believe that churches must be allowed some degree of control over employment decisions in core cases but that Perich's case falls within the scope of state regulation; it's also consistent with this view to believe that churches may be subject to some degree of regulation of their employment decisions but that Hosanna-Tabor's decision to dismiss Perich falls within the scope of religious freedom. We may certainly invoke concepts like autonomy and ordered liberty in trying to resolve these issues, but virtually everyone is already going to be engaged in balancing the two, however clumsily, and the invocation of these concepts certainly won't answer any difficult questions. ___ 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.
RE: Hosanna-Tabor and the "Ministerial Exception"
I think Marci has raised many valuable practical and theoretical questions about "church autonomy," both at the level of doctrine and at the level of theory. I'm not trying to address all that here. Nonetheless, I think the argument that "the Court has repeatedly followed the principle of 'ordered liberty' as opposed to 'autonomy'" tends to state the question more than to answer it. To analogize roughly to the abortion cases (and it's just an analogy, nothing more), the courts have said that women have a right to obtain abortions, and one somewhat undertheorized piece of that conclusion is that women are entitled to some autonomy in making important decisions. But it has also said that this right must necessarily be subject to limits. One could argue on this basis that because women's right to an abortion can be limited by the state, a limit that is subject to weighing by the courts, any talk of women's autonomy must be illusory -- doesn't autonomy mean we don't get to ask any such questions at all? -- and these cases must be all about ordered liberty. But that would seem to me to be the wrong way of thinking about it. It would be better to say that the argument then concerns the degree to which women are entitled to decision-making autonomy within a system of law that imposes some outside limits. Really, this is the question we ask every time we balance individual rights against state needs -- and, either at a categorical level or on a case-by-case basis, we *always* do just that. Claims of individual or institutional autonomy are always balanced against other claims -- including, to give one relevant example here, claims that the state has a legitimate interest in addressing child sexual abuse and other serious wrongs. That doesn't mean there's no such thing as autonomy; it just means that autonomy is not an unlimited concept. To say some claim is subject to the principle of "ordered liberty" doesn't end the conversation, because what constitutes ordered liberty is the very point in contention. Similarly, in the ministerial exception cases, unless one is arguing either that the ministerial exception can't exist at all or that it is absolute, the question is the extent to which some degree of autonomy for religious institutions is consistent with some degree of acceptable state regulation for permissible ends. It is consistent with this view to believe that churches must be allowed some degree of control over employment decisions in core cases but that Perich's case falls within the scope of state regulation; it's also consistent with this view to believe that churches may be subject to some degree of regulation of their employment decisions but that Hosanna-Tabor's decision to dismiss Perich falls within the scope of religious freedom. We may certainly invoke concepts like autonomy and ordered liberty in trying to resolve these issues, but virtually everyone is already going to be engaged in balancing the two, however clumsily, and the invocation of these concepts certainly won't answer any difficult questions. From: hamilto...@aol.com Date: Tue, 16 Aug 2011 10:22:42 -0400 Subject: Re: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu Nelson-- Just a historical note-- there really is no "church autonomy doctrine" at the Supreme Court. It's not a phrase or doctrine the Court has adopted, particularly after the long line of free exercise cases that culminate in Smith, and Jones v. Wolf. From my research, the phrase was coined during litigation primarily by the bishops of the Roman Catholic and LDS Churches, perhaps drawing on an article using the term by Doug. Of course, there are other theorists who have argued for "autonomy" under free speech, but the Religion Clause issues here extend beyond speech. In contrast, the Court has repeatedly followed the principle of "ordered liberty" as opposed to "autonomy." The SG is actually arguing out of the ordered liberty tradition, while the Petr and some of the amici in support are taking the more extreme position. To see an excellent point-counterpoint of the 2 approaches, see the 2 decisions in Petruska in the 3d Cir. Marci FWIW--I wrote a brief in HT for a number of child protection groups, because "church autonomy" has been invoked in this case and is routinely invoked in the clergy sex abuse cases to avoid discovery and liability for culpability for child sex abuse. A holding in HT could affect positively or negatively the child sex abuse cases. In a message dated 8/16/2011 10:10:20 A.M. Eastern Daylight Time, l...@wayne.edu writes: Marty asked for opinions on the briefs. Here is what I’ve been thinking, for whatever it’s worth (pr
Re: Hosanna-Tabor and the "Ministerial Exception"
Nelson-- Just a historical note-- there really is no "church autonomy doctrine" at the Supreme Court. It's not a phrase or doctrine the Court has adopted, particularly after the long line of free exercise cases that culminate in Smith, and Jones v. Wolf. From my research, the phrase was coined during litigation primarily by the bishops of the Roman Catholic and LDS Churches, perhaps drawing on an article using the term by Doug. Of course, there are other theorists who have argued for "autonomy" under free speech, but the Religion Clause issues here extend beyond speech. In contrast, the Court has repeatedly followed the principle of "ordered liberty" as opposed to "autonomy." The SG is actually arguing out of the ordered liberty tradition, while the Petr and some of the amici in support are taking the more extreme position. To see an excellent point-counterpoint of the 2 approaches, see the 2 decisions in Petruska in the 3d Cir. Marci FWIW--I wrote a brief in HT for a number of child protection groups, because "church autonomy" has been invoked in this case and is routinely invoked in the clergy sex abuse cases to avoid discovery and liability for culpability for child sex abuse. A holding in HT could affect positively or negatively the child sex abuse cases. In a message dated 8/16/2011 10:10:20 A.M. Eastern Daylight Time, l...@wayne.edu writes: Marty asked for opinions on the briefs. Here is what I’ve been thinking, for whatever it’s worth (probably very little). At the outset, I should say that my own views may be atypical, so I’m particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The lower courts have uniformly recognized the ministerial exception. So I assumed that this would be a fight mostly over its scope—does Cheryl Perich, because of her job duties and ecclesiastical office, fall within the ministerial exception or not? But the plaintiffs (the SG and Perich) do not go that way. They don’t believe in any ministerial exception, at least as such. Relying on Smith and Jones v. Wolf, they say the ADA is neutral and generally applicable—so there’s no general constitutional problem with applying it to religious groups. The Solicitor General says that the relevant constitutional concerns should instead be handled by a bunch of discrete, narrower rules: (1) Dale, (2) a ban on forced reinstatement to ecclesiastical office, and (3) a ban on cases where (a) the church claims it fired the plaintiff for failing to adequately perform his or her religious duties and (b) the plaintiff has no separate evidence that this is pretext. Maybe it’s just me, but I thought this a surprising position for the SG. This is, to my knowledge, a narrower view of the ministerial exception than any federal court has adopted. Courts have divided on what jobs and persons fall within the ministerial exception. But they have agreed that, for those jobs and persons, the ministerial exception is a categorical bar. The SG doesn’t believe in a categorical bar. If I understand the SG’s position right, a dismissed Catholic bishop could bring suit against the church under any of the discrimination laws, provided he only seeks damages and has evidence of pretext. In particular, there’s a huge fight about the scope of the church autonomy precedents. Hosanna-Tabor relies heavily on them to establish a broad principle. The Solicitor General treats them just as “older cases concerning church-property disputes” (p. 11). All that dicta in Kedroff and other cases about church autonomy is now overruled by Smith; neutral and generally applicable laws control. Of course, the NLRA in Catholic Bishop was neutral and generally applicable. The principles of property, trust, and agency in Milivojevich were neutral and generally applicable (as then-Justice Rehnquist made clear in his dissent). But the SG’s brief deals with these cases quickly, as if they were self-evidently irrelevant. Milivojevich gets just a few lines in the middle of p. 25. The SG quotes an in-chambers solo opinion by Justice Rehnquist, adopting his view of Milivojevich’s holding— which, I note parenthetically, is weird because (1) it’s just Justice Rehnquist speaking, (2) he wrote the dissent in Milivojevich, and (3) he was the one in Milivojevich who clearly said that the law was neutral and generally applicable. Catholic Bishop is dismissed in a footnote on p. 40. The whole tone of the SG’s brief is that these cases are just relics, holdover cases from a bygone era, to be dealt with like mosquitoes that are annoying but pose no real threat. Anyway, there seems to be a big gap between the parties here, both in terms of precedents and in terms of theory. There’s this tension as to whether religion really is special that runs through the briefs on the plaintiffs’ si
RE: Hosanna-Tabor and the "Ministerial Exception"
Marty asked for opinions on the briefs. Here is what I've been thinking, for whatever it's worth (probably very little). At the outset, I should say that my own views may be atypical, so I'm particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The lower courts have uniformly recognized the ministerial exception. So I assumed that this would be a fight mostly over its scope-does Cheryl Perich, because of her job duties and ecclesiastical office, fall within the ministerial exception or not? But the plaintiffs (the SG and Perich) do not go that way. They don't believe in any ministerial exception, at least as such. Relying on Smith and Jones v. Wolf, they say the ADA is neutral and generally applicable-so there's no general constitutional problem with applying it to religious groups. The Solicitor General says that the relevant constitutional concerns should instead be handled by a bunch of discrete, narrower rules: (1) Dale, (2) a ban on forced reinstatement to ecclesiastical office, and (3) a ban on cases where (a) the church claims it fired the plaintiff for failing to adequately perform his or her religious duties and (b) the plaintiff has no separate evidence that this is pretext. Maybe it's just me, but I thought this a surprising position for the SG. This is, to my knowledge, a narrower view of the ministerial exception than any federal court has adopted. Courts have divided on what jobs and persons fall within the ministerial exception. But they have agreed that, for those jobs and persons, the ministerial exception is a categorical bar. The SG doesn't believe in a categorical bar. If I understand the SG's position right, a dismissed Catholic bishop could bring suit against the church under any of the discrimination laws, provided he only seeks damages and has evidence of pretext. In particular, there's a huge fight about the scope of the church autonomy precedents. Hosanna-Tabor relies heavily on them to establish a broad principle. The Solicitor General treats them just as "older cases concerning church-property disputes" (p. 11). All that dicta in Kedroff and other cases about church autonomy is now overruled by Smith; neutral and generally applicable laws control. Of course, the NLRA in Catholic Bishop was neutral and generally applicable. The principles of property, trust, and agency in Milivojevich were neutral and generally applicable (as then-Justice Rehnquist made clear in his dissent). But the SG's brief deals with these cases quickly, as if they were self-evidently irrelevant. Milivojevich gets just a few lines in the middle of p. 25. The SG quotes an in-chambers solo opinion by Justice Rehnquist, adopting his view of Milivojevich's holding-which, I note parenthetically, is weird because (1) it's just Justice Rehnquist speaking, (2) he wrote the dissent in Milivojevich, and (3) he was the one in Milivojevich who clearly said that the law was neutral and generally applicable. Catholic Bishop is dismissed in a footnote on p. 40. The whole tone of the SG's brief is that these cases are just relics, holdover cases from a bygone era, to be dealt with like mosquitoes that are annoying but pose no real threat. Anyway, there seems to be a big gap between the parties here, both in terms of precedents and in terms of theory. There's this tension as to whether religion really is special that runs through the briefs on the plaintiffs' side. On one hand, it's not. The ADA is neutral and generally applicable; it therefore should apply fully to religious groups. But on the other hand, it still is, kind of. To give one example, the law on reinstatement-plaintiffs should usually be reinstated except when it would be impractical-is neutral and generally applicable too. So where does the constitutional concern with reinstatement come from? Just some thoughts. Hope all is well as the school year begins.. Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, August 15, 2011 9:53 AM To: Law & Religion issues for Law Academics Subject: Hosanna-Tabor and the "Ministerial Exception" Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucl
Re: Hosanna-Tabor and the "Ministerial Exception"
Preliminarily, let me say that I sincerely hope there is a wide variety of views among law professors on this issue, and most every other issue in our field. The issue in the Hosanna Tabor in my view is not whether there will be a ministerial exception, but, as Doug puts it, where to draw the line. There are many places to draw the line regardless of whether RFRA, Dale, and the prohibition on courts interpreting religious doctrine are in place. There are also the other relevant doctrines, e.g., courts may question sincerity, even if they may not question doctrine, and in many of these cases there are good reasons to question the sincerity of the proffered reason for the adverse employment action. There is also the question whether accommodation can be appropriate if the religious organization does not have a religious belief that is burdened. The Petruska case is a great example-- she was hired as a chaplain, and there was no prohibition on women chaplains at the Catholic university. Then she was told she was being fired because she was a woman. That is gender discrimination untethered to an actual religious belief involving gender. Judge Becker's original opinion in Petruska says that without an underlying religious belief, the ministerial exception is not legitimate. The subsequent panel opinion, which vacated his decision and was entered after he passed away, treats the issues as simply untouchable by the courts. The EEOC's brief is one of the most intelligently argued briefs filed in a religion case by the DOJ in recent memory, so there is a lot for the Court to consider, which makes it impossible to predict outcome. Marci In a message dated 8/15/2011 12:13:54 P.M. Eastern Daylight Time, lederman.ma...@gmail.com writes: That's true -- that there should be no ministerial exemption at all is probably "not the position of most professors who teach and work directly in law and religion." (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) Dale, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is "a very different and nearly unanimous consensus about this case . . ." ___ 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.
RE: Hosanna-Tabor and the "Ministerial Exception"
Mea culpa! From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 12:09:10 -0400 Subject: Re: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu That's true -- that there should be no ministerial exemption at all is probably "not the position of most professors who teach and work directly in law and religion." (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) Dale, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is "a very different and nearly unanimous consensus about this case . . ." On Mon, Aug 15, 2011 at 11:59 AM, Paul Horwitz wrote: I'm certainly happy to plead guilty to overenthusiastic writing; it's been known to happen on blogs, although I try to avoid it. I would note, though, that the position taken in the brief I mention is not just that the ministerial exception raises difficulties of the kinds Marty mentions below, but that it should be eliminated altogether. My claim may still be too extravagant, but I still feel fairly comfortable saying that this is not the position of most professors who teach and work directly in law and religion. Best, Paul Date: Mon, 15 Aug 2011 11:25:30 -0400 Subject: Re: Hosanna-Tabor and the "Ministerial Exception" From: icl...@law.gwu.edu To: religionlaw@lists.ucla.edu Marty is certainly correct to question the conclusion in Paul's post. Doug Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a co-author of one of the leading amicus briefs on the petitioner's side. I don't count Bob Tuttle or me in that league, but our most recent writing on this subject might give some comfort (and some unease) to both sides. I think the Hosanna-Tabor case has been superbly briefed on both sides. I expect the case will prove quite difficult for the Supreme Court, and will defy any easy prediction about the outcome or the line-up of Justices. On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman wrote: Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is "a very different and nearly unanimous consensus about this case . . . among those who spend most of their time working on these issues from a law and religion perspective." Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law & religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under Boy Scouts v. Dale (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz wrote: I have a brief and basically non-substantive post up on Prawfsblawg today about the "Law and Religion Professors" brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the "Law and Religion Professors" brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was
Re: Hosanna-Tabor and the "Ministerial Exception"
That's true -- that there should be no ministerial exemption at all is probably "not the position of *most* professors who teach and work directly in law and religion." (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) *Dale*, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is "a *very *different and *nearly unanimous consensus* *about this case* . . ." On Mon, Aug 15, 2011 at 11:59 AM, Paul Horwitz wrote: > I'm certainly happy to plead guilty to overenthusiastic writing; it's been > known to happen on blogs, although I try to avoid it. I would note, though, > that the position taken in the brief I mention is not just that the > ministerial exception raises difficulties of the kinds Marty mentions below, > but that it should be eliminated altogether. My claim may still be too > extravagant, but I still feel fairly comfortable saying that this is not the > position of most professors who teach and work directly in law and > religion. > > Best, > > Paul > > ---------- > Date: Mon, 15 Aug 2011 11:25:30 -0400 > Subject: Re: Hosanna-Tabor and the "Ministerial Exception" > From: icl...@law.gwu.edu > > To: religionlaw@lists.ucla.edu > > Marty is certainly correct to question the conclusion in Paul's post. Doug > Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a > co-author of one of the leading amicus briefs on the petitioner's side. I > don't count Bob Tuttle or me in that league, but our most recent writing on > this subject might give some comfort (and some unease) to both sides. I > think the Hosanna-Tabor case has been superbly briefed on both sides. I > expect the case will prove quite difficult for the Supreme Court, and will > defy any easy prediction about the outcome or the line-up of Justices. > > On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman > wrote: > > Paul's Prawfsblawg post is, I think, fairly described as trying to suggest > that the Corbin/Griffin amicus brief (which he praises) does not fairly > reflect the view of most professors who teach Law and Religion, and that, > instead, there is "a very different and *nearly unanimous consensus* about > this case . . . among those who spend most of their time working on these > issues from a law and religion perspective." > > Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus > among law & religion scholars that a religious school should have complete > immunity from employment law rules, including anti-retaliation rules, even > in cases where (i) the position in question involves secular functions in a > commercial setting; (ii) the school has not demonstrated a right to an > exemption under *Boy Scouts v. Dale* (either because there's no > substantial impact on its expression or because the state interest outweighs > that impact, or both); and (iii) the school has not demonstrated a right to > an exemption under RFRA (either because there's no significant burden on > religious exercise or because the state interest outweighs the burden, or > both)? > > I'm not aware of anything like a consensus on that question. Not even sure > what the majority view would be among such scholars. > > On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz wrote: > > I have a brief and basically non-substantive post up on Prawfsblawg > today about the "Law and Religion Professors" brief. Also, the Northwestern > University Law Review Colloquy will be running several pieces on the case; > they should be up on the web site by around the start of Term. I have read > some but not all of the briefs (and I haven't read Marci's yet; my > apologies). I certainly think Caroline Corbin and Leslie Griffin, the > writers of the "Law and Religion Professors" brief, do an excellent job of > giving the best case against the ministerial exception from a doctrinal > position, although I also think their position is both too closely focused > on the doctrine and not focused enough on broader history (and even within > the doctrine I think they misread Jones v. Wolf), and too consequentialist. > Again, though, I certainly applaud them for putting their best arguments > forward -- although they haven't changed my mind. > > Paul Horwitz > > -- > From: lederman.ma...@gmail.com > Date: Mon, 15 Aug 2011 09:53:06 -0400 > Subject: Hosanna-Tabor and the "
RE: Hosanna-Tabor and the "Ministerial Exception"
I'm certainly happy to plead guilty to overenthusiastic writing; it's been known to happen on blogs, although I try to avoid it. I would note, though, that the position taken in the brief I mention is not just that the ministerial exception raises difficulties of the kinds Marty mentions below, but that it should be eliminated altogether. My claim may still be too extravagant, but I still feel fairly comfortable saying that this is not the position of most professors who teach and work directly in law and religion. Best, Paul Date: Mon, 15 Aug 2011 11:25:30 -0400 Subject: Re: Hosanna-Tabor and the "Ministerial Exception" From: icl...@law.gwu.edu To: religionlaw@lists.ucla.edu Marty is certainly correct to question the conclusion in Paul's post. Doug Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a co-author of one of the leading amicus briefs on the petitioner's side. I don't count Bob Tuttle or me in that league, but our most recent writing on this subject might give some comfort (and some unease) to both sides. I think the Hosanna-Tabor case has been superbly briefed on both sides. I expect the case will prove quite difficult for the Supreme Court, and will defy any easy prediction about the outcome or the line-up of Justices. On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman wrote: Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is "a very different and nearly unanimous consensus about this case . . . among those who spend most of their time working on these issues from a law and religion perspective." Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law & religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under Boy Scouts v. Dale (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz wrote: I have a brief and basically non-substantive post up on Prawfsblawg today about the "Law and Religion Professors" brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the "Law and Religion Professors" brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately. ___ 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/religi
Re: Hosanna-Tabor and the "Ministerial Exception"
Marty is certainly correct to question the conclusion in Paul's post. Doug Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a co-author of one of the leading amicus briefs on the petitioner's side. I don't count Bob Tuttle or me in that league, but our most recent writing on this subject might give some comfort (and some unease) to both sides. I think the Hosanna-Tabor case has been superbly briefed on both sides. I expect the case will prove quite difficult for the Supreme Court, and will defy any easy prediction about the outcome or the line-up of Justices. On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman wrote: > Paul's Prawfsblawg post is, I think, fairly described as trying to suggest > that the Corbin/Griffin amicus brief (which he praises) does not fairly > reflect the view of most professors who teach Law and Religion, and that, > instead, there is "a very different and *nearly unanimous consensus* about > this case . . . among those who spend most of their time working on these > issues from a law and religion perspective." > > Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus > among law & religion scholars that a religious school should have complete > immunity from employment law rules, including anti-retaliation rules, even > in cases where (i) the position in question involves secular functions in a > commercial setting; (ii) the school has not demonstrated a right to an > exemption under *Boy Scouts v. Dale* (either because there's no > substantial impact on its expression or because the state interest outweighs > that impact, or both); and (iii) the school has not demonstrated a right to > an exemption under RFRA (either because there's no significant burden on > religious exercise or because the state interest outweighs the burden, or > both)? > > I'm not aware of anything like a consensus on that question. Not even sure > what the majority view would be among such scholars. > > On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz wrote: > >> I have a brief and basically non-substantive post up on Prawfsblawg today >> about the "Law and Religion Professors" brief. Also, the Northwestern >> University Law Review Colloquy will be running several pieces on the case; >> they should be up on the web site by around the start of Term. I have read >> some but not all of the briefs (and I haven't read Marci's yet; my >> apologies). I certainly think Caroline Corbin and Leslie Griffin, the >> writers of the "Law and Religion Professors" brief, do an excellent job of >> giving the best case against the ministerial exception from a doctrinal >> position, although I also think their position is both too closely focused >> on the doctrine and not focused enough on broader history (and even within >> the doctrine I think they misread Jones v. Wolf), and too consequentialist. >> Again, though, I certainly applaud them for putting their best arguments >> forward -- although they haven't changed my mind. >> >> Paul Horwitz >> >> -- >> From: lederman.ma...@gmail.com >> Date: Mon, 15 Aug 2011 09:53:06 -0400 >> Subject: Hosanna-Tabor and the "Ministerial Exception" >> To: religionlaw@lists.ucla.edu >> >> >> Now that all the briefs are in except Doug's reply -- see >> http://www.americanbar.org/publications/preview_home/10-553.html -- I was >> wondering if anyone has any reactions, in particular whether anyone's views >> have changed by virtue of the briefs. I haven't seen much discussion online >> lately. >> >> >> ___ 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. >> > > > ___ > 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
Re: Hosanna-Tabor and the "Ministerial Exception"
Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is "a very different and *nearly unanimous consensus* about this case . . . among those who spend most of their time working on these issues from a law and religion perspective." Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law & religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under *Boy Scouts v. Dale* (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz wrote: > I have a brief and basically non-substantive post up on Prawfsblawg today > about the "Law and Religion Professors" brief. Also, the Northwestern > University Law Review Colloquy will be running several pieces on the case; > they should be up on the web site by around the start of Term. I have read > some but not all of the briefs (and I haven't read Marci's yet; my > apologies). I certainly think Caroline Corbin and Leslie Griffin, the > writers of the "Law and Religion Professors" brief, do an excellent job of > giving the best case against the ministerial exception from a doctrinal > position, although I also think their position is both too closely focused > on the doctrine and not focused enough on broader history (and even within > the doctrine I think they misread Jones v. Wolf), and too consequentialist. > Again, though, I certainly applaud them for putting their best arguments > forward -- although they haven't changed my mind. > > Paul Horwitz > > -- > From: lederman.ma...@gmail.com > Date: Mon, 15 Aug 2011 09:53:06 -0400 > Subject: Hosanna-Tabor and the "Ministerial Exception" > To: religionlaw@lists.ucla.edu > > > Now that all the briefs are in except Doug's reply -- see > http://www.americanbar.org/publications/preview_home/10-553.html -- I was > wondering if anyone has any reactions, in particular whether anyone's views > have changed by virtue of the briefs. I haven't seen much discussion online > lately. > > > ___ 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. > ___ 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.
RE: Hosanna-Tabor and the "Ministerial Exception"
I have a brief and basically non-substantive post up on Prawfsblawg today about the "Law and Religion Professors" brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the "Law and Religion Professors" brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately. ___ 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.
