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, 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.
