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 <dc...@law.usc.edu<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." <howard.fried...@utoledo.edu<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 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 <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> >>> 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 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> [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<mailto: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<mailto: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<mailto: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.
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