I think Chip and Bob's article is probably the best thing yet written about H-T, or at least it makes the best sense of the opinion. As Chip knows, however, I am uneasy, not about whether they've accurately captured what the Chief was getting at (or what he must have been getting at), but about just how one determines what is a "purely ecclesiastical question," and about why adjudication of the legal claim in a case such as this, or H-T, would necessarily *require the court to assess* such a religious question.
Here, for instance, why is "who is *entitled* to attend a worship service" an "exclusively ecclesiastical question"? Does it necessarily require an assessment that civil authorities are incapable of making, such as whether the presence of nursing women would make prayer ineffective? (It might -- but perhaps not. Depends on why the church is excluding them. It might be for the same (noncompelling) secular reasons that other organizations are uneasy with nursing, e.g., it makes some men uncomfortable.) But even if the question of "entitlement" to worship-attendance is, for some reason, "exclusively ecclesiastical," why would civil authorities have to engage on that question? "Fine," the (completely hypothetical, nonexistent) state might say: "We *accept* your word that nursing women are not 'entitled' to worship as a matter of religious precepts. We will not second-guess that ecclesiastical question. Nevertheless, we have concluded that the nondiscrimination norm is more important than honoring religious notions of 'entitlement.' Therefore you can't exclude such women." Of course, this entire hypo is off-the-charts, in the sense that no state in our lifetimes -- or on this planet -- will ever prohibit churches from imposing modesty rules for worship services. On Thu, Apr 27, 2017 at 7:48 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > Neither Eugene not Steven has made any attempt to state the principle for > which Hosanna-Tabor stands. It certainly does not stand for a broad and > free floating principle of church autonomy, subject to some balancing > test. It does not assert that broad principle, and it explicitly eschews > any balancing of interests. > > Hosanna-Tabor is much cleaner that many have made it out to be. It > reaffirms a longstanding constitutional principle, resting on both Religion > Clauses of the First Amendment, that the state may not resolve exclusively > ecclesiastical questions. See generally Lupu & Tuttle, The Mystery of > Unanimity in [Hosanna-Tabor], 20 Lewis & Clark L. Rev. 1265 (2017), > https://law.lclark.edu/live/files/23330-204lupu-tuttlearticle7pdf. > > Who is fit for ministry is such a question. Another exclusively > ecclesiastical question is who is entitled to attend a worship service, > and under what conditions. So the church has a First A right to exclude a > breast-feeding woman from its worship service. Once the church does so, it > is no longer a place where she has a right to be. > > On Thu, Apr 27, 2017 at 1:12 PM, Steven Jamar <stevenja...@gmail.com> > wrote: > >> I assume freedom of association would protect a church in selecting its >> membership. And I assume Hosanna-Tabor would protect religion-driven >> decorum decisions like separate seating for men and women in synagogues and >> mosques. >> But this is just a case of people being uncomfortable — not a >> religiously-compelled doctrine or code of conduct. I don’t see either >> Hosanna-Tabor or RFRA reaching that. Hosanna-Tabor does not extend to just >> any activity a church claims and RFRA requires a substantial burden on the >> exercise of religion (assuming the VA RFRA is like the federal one — again, >> I’m not interested in the particulars of the VA RFRA). >> >> >> -- >> Prof. Steven D. Jamar >> Assoc. Dir. of International Programs >> Institute for Intellectual Property and Social Justice >> http://iipsj.org >> http://sdjlaw.org >> >> "In these words I can sum up everything I've learned about life: It >> goes on." >> >> --Robert Frost >> >> >> >> >> >> On Apr 27, 2017, at 12:54 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: >> >> 1. Does the principle underlying *Hosanna-Tabor *extend >> to churches excluding members (or visitors) based on race, sex, religion, >> etc.? I assume it would, which is why, for instance, Orthodox synagogues >> could have separate seating for men and women, Nation of Islam events could >> be men-only (there are a few cases on the latter, though free speech cases >> rather than religious freedom cases), various churches could be racially or >> ethnically exclusionary in their membership, and so on. >> >> 2. If a church can exclude people from membership or >> attendance based on race, sex, etc., I assume it would likewise be free to >> exclude people who engage in certain behavior. >> >> 3. Virginia does have a state RFRA, Va Code 57-2.02, but >> I assume the *Hosanna-Tabor *principle – if it’s applicable – would >> provide categorical protection, not subject to trumping under strict >> scrutiny. >> >> Eugene >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto:religionlaw >> -boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu>] *On Behalf >> Of *Steven Jamar >> *Sent:* Thursday, April 27, 2017 9:49 AM >> *To:* Law & Religion issues for Law Academics >> *Subject:* Church excludes nursing woman >> >> If RFRA applied to the state, or if Virginia had a state RFRA that copied >> the federal RFRA, would this state law be legal? >> >> Virginia law provides that a woman can breast feed uncovered anywhere she >> has a legal right to be. Can a church then exclude her because breast >> feeding uncovered might make some other congregants uncomfortable? >> >> https://www.washingtonpost.com/local/virginia-politics/this- >> breastfeeding-mom-caused-a-stir-in-church/2017/04/26/adb7 >> ac84-2a8d-11e7-a616-d7c8a68c1a66_story.html?utm_term=.cca0b874fc7c >> >> -- >> Prof. Steven D. Jamar >> Assoc. Dir. of International Programs >> Institute for Intellectual Property and Social Justice >> http://iipsj.org >> http://sdjlaw.org >> >> >> "Years ago my mother used to say to me... 'In this world Elwood' ... She >> always used to call me Elwood... 'In this world Elwood, you must be Oh So >> Smart, or Oh So Pleasant.' Well for years I was smart -- I recommend >> pleasant. You may quote me." --Elwood P. Dowd >> >> - Mary Chase, "Harvey", 1950 >> >> >> >> _______________________________________________ >> 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. >> >> >> >> _______________________________________________ >> 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. >> > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > 301-928-9178 <(301)%20928-9178> (mobile, preferred) > 202-994-7053 <(202)%20994-7053> (office) > Co-author (with Professor Robert Tuttle) of "Secular Government, Religious > People" ( Wm. B. Eerdmans Pub. Co., 2014)) > 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. > -- Marty Lederman Georgetown University Law Center 600 New Jersey Avenue, NW Washington, DC 20001 202-662-9937
_______________________________________________ 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.
