Alan: Doesn't that return us to the perennial question of whether
Witters was rightly decided, whether the GI Bill should have been
unconstitutional, and whether the Court has been right in saying that tax
exemptions are generally a form of subsidy? After all, under Witters, the GI
Bill, and the charitable tax exemption, either government money or the benefits
of deductibility are provided to, among other things, religious instruction,
proselytizing, and worship. Are you indeed saying that the Establishment
Clause prohibits this?
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
> Sent: Thursday, January 12, 2012 1:13 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Supreme Court sides with church on decision to fire employee on
> religious grounds
>
> As you know, Tom, I don't assign as much weight to the distinction between
> direct grants and vouchers as you, and the Court, do -- and my analysis of
> voucher programs is multi-factored. But for the purposes of this argument,
> let me point to two problems with the government paying the salary of the
> employees of a religious institution who play "an important role as an
> instrument of her church's religious message and as a leader of its worship
> activities." First, government funding will be used for religious
> instruction,
> proselytizing and worship -- which I believe the Establishment Clause
> prohibits.
>
> Second, and more importantly for the present discussion, the core of the
> Court's argument in Hosanna-Tabor is that government should not be
> involved in decisions that affect the faith and mission of the church. But the
> faith and mission of the church cannot be independent and autonomous
> from government if the church is dependent on government funding to pay
> the salaries of those who play an "important role as an instrument of her
> church's religious message and as a leader of its worship activities."
>
> I don't think the issue should be resolved by permitting government to fund
> positions that fall within the ministerial exception if the religious
> institution
> does not discriminate on race, nationality, gender or disability, while
> allowing government to refuse to fund those same positions if discriminatory
> criteria control the religious institution's hiring decisions. That gives the
> government control over the religious institution's core religious hiring
> decisions -- exactly what the ministerial exception is intended to prohibit. I
> think that these positions, because of their status and function, should not
> be funded by government whether the religious institution exercises the full
> extent of the authority it has under the ministerial exception or not.
>
> Alan
>
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C.
> Sent: Thursday, January 12, 2012 7:28 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Supreme Court sides with church on decision to fire employee on
> religious grounds
>
> Alan, I'm not predicting two more justices, let alone with any certainty, or
> talking about all lay teachers. I was only making the point that three
> justices
> adopted a broader standard than the majority, and the fact that one of them
> was Kagan is notable and makes the road to additional votes significantly
> easier than otherwise. My sense, from oral argument among other things,
> was that Roberts and Scalia would be easier fifth votes than Kennedy to go
> further than these facts. On your second point, in many religious schools, at
> least some lay teachers have a central role, not just some role, in
> communicating the religious message, as Lemon and many other cases have
> emphasized.
>
> Finally, I agree that funding complicates things. I assume that government
> has authority to refuse to fund positions where discriminatory selection
> criteria operate (although, as you know, I think religious-belief selection
> criteria are a different case concerning religious organizations). I wouldn't
> turn that authority into carte blanche for funding restrictions. Would you
> say
> the mere fact that some lay teachers at a school would be classified within
> the ministerial exception would justify excluding all students at that school
> from participating in a "true private choice" voucher program, or (at the
> college level) from receiving state scholarships? Would you say this even if
> the school had not been shown to discriminate but merely referred to such
> teachers as "ministers"?
>
> -----------------------------------------
> Thomas C. Berg
> James L. Oberstar Professor of Law and Public Policy University of St.
> Thomas School of Law MSL 400, 1000 LaSalle Avenue
> Minneapolis, MN 55403-2015
> Phone: 651 962 4918
> Fax: 651 962 4881
> E-mail: tcb...@stthomas.edu
> SSRN: http://ssrn.com/author='261564
> Weblog: http://www.mirrorofjustice.blogs.com
> ----------------------------------------------------------------------------
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