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 <ledew...@duq.edu> 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 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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