I have to respectfully disagree with Chip on this point. The concerns about unacceptably burdening non-beneficiaries that justify restricting legislative accommodations don't disappear when the accommodation is constitutionally mandated. Courts commonly take these concerns into account in engaging in definitional balancing to determine the scope of rights.
The ministerial exception is more complicated, as Chip notes, because it is justified in part by Establishment Clause concerns. Thus, under my argument, the same constitutional provision would both justify a ministerial exception as well as suggest limits as to its scope. That may be uncommon, but it is hardly unprecedented. Religious liberty (free exercise) interests may fall on both sides of a line and both support an accommodation as well as support limits on its scope. The same is true for the Establishment Clause (which, for example, promotes both religious liberty and religious equality values which are sometimes in conflict.) It is also true that the Court does not engage in explicit interest balancing in Establishment clauses in the sense that it does not apply conventional standards of review. But it does engage in constitutional interest balancing when it determines the scope of Establishment Clause principles. Thus, for example, in determining the extent to which government may subsidize religious institutions, the Court was clearly concerned that some restrictions on government support would unreasonably burden religious institutions by denying them assess to generally available benefits. I don't believe that Establishment clause line drawing is devoid of judicial attention to the consequences of the Court's decisions. Chip is correct that the Court does not focus on the cost to third parties in the hosanna-Tabor opinion. It does in the last paragraph, however, note the importance of employment discrimination laws, the interest of religious groups in choosing who will preach their beliefs, and its conclusion that the First Amendment has struck the balance for us. I do not read that language to suggest that the Court will ignore other constitutional concerns or important state interests in determining that balance in future cases that set the contours of the ministerial exception. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Friday, January 13, 2012 11:38 AM To: Law & Religion issues for Law Academics Subject: Re: Hosanna-Tabor Alan Brownstein writes that there is "arguably a constitutional check on an excessively broad understanding of the [ministerial] exception. Several Establishment Clause cases make it clear that religious accommodations that impose unacceptably large burdens on nonbeneficiaries are subject to challenge. That concern should operate in tension with the Religion Clause concerns supporting the exception." But the cases to which Alan refers are about permissive accommodations (e.g., Caldor, Cutter, Zorach), which are themselves challenged as violations of the Establishment Clause. The ministerial exception, the Court says, itself rests in part on the Establishment Clause, and is mandatory, not permissive. If the Court had repudiated the exception, and a legislature had then reinstated it as a permissive accommodation, then the concern for non-beneficiaries would of course come into play. What's different about the context of the ministerial exception is that it involves an Establishment Clause-driven benefit (not a detriment, like a funding limitation) to religious institutions (with consequent risk of harm to others). But the mandatory quality of the exception undercuts Alan's point. No one on the Court suggested any balancing of the potential social disutility (which the government pressed as an argument) of the exception -- including harm to third parties, not just the employee-plaintiff. This is one of the reasons why the Court's unanimity is so stark and surprising, and this is also a reason why the Establishment Clause grounding is so important -- we do not have any doctrine of explicit interest-balancing in Establishment Clauses. And drawing the line re: who is a ministerial employee will have nothing to do with the scope of non-beneficiary interests -- everything about the Court's opinion suggests that Ms. Perich would have been found to be a ministerial employee even if she had been fired for reporting to the police about physical abuse of children at the school. Chip On Fri, Jan 13, 2012 at 11:54 AM, Alan Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote: Most constitutionally protected liberties are a zero sum game in Marci's sense. They impose a cost on the general public or particular third parties by preventing laws that often protect or benefit people from being fully implemented. There is no free lunch and rights are expensive political goods. But Marci us clearly correct that their is a cost to the ministerial exception and the broader it is defined the greater that cost will be. Moreover, their is arguably a constitutional check on an excessively broad understanding of the exception. Several Establishment Clause cases make it clear that religious accommodations that impose unacceptably large burdens on nonbeneficiaries are subject to challenge. That concern should operate in tension with the Religion Clause concerns supporting the exception. Reasonable people may disagree on where that line should be drawn and how that balance should be struck. Alan ________________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] on behalf of Marci Hamilton [hamilto...@aol.com<mailto:hamilto...@aol.com>] Sent: Friday, January 13, 2012 6:52 AM To: Law & Religion issues for Law Academics Subject: Re: Hosanna-Tabor I have no doubt whatsoever that Doug is sincere when he talks about his commitment to "civil liberties more generally," but Hosanna-Tabor is the clearest case to date showing that religious liberty is a zero sum game. For increases in the rights of religious organizations, there are concomitant losses for the victims of the organizations' acts. The victims of disability, alienage, race, and gender discrimination are now likely incapable of vindicating their civil rights if they are clergy, or ministers, or according to some on our list, lay teachers in parochial schools. That is a large quantum loss of civil rights on any scale. I suppose those taking Doug's view believe that the loss is justified. Justification, however, does not obviate the fact of the loss. I can assure you that Petruska, Perich, and Rweyemamu do not view this decision as a vindication for civil rights. With respect to Smith, given the Court's own statements about Smith in Hosanna-Tabor and O Centro, it is entrenched at the Court. Marci _______________________________________________ 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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
