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
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Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
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