I don’t know whether anything rides on this in terms of results—maybe there is no need to get into it—but I think Hosanna-Tabor is just as much about the rights of religious organizations as it is about judicial competence.
Hosanna-Tabor says, quoting Kedroff, that “[t]he Constitution guarantees religious bodies independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” It doesn’t use the phrase “church autonomy.” But why isn’t that a pretty decent shorthand for what the Court is talking about here? Throughout its opinion, the Court says things like “the Free Exercise Clause . . . protects a group’s right to shape its own faith and mission through its appointments” and “the First Amendment itself . . . gives special solicitude to the rights of religious organizations.” There are a bunch of similar statements about churches’ “rights” or “freedoms” or “interests.” So why are we hesitant to use the language of rights here? I must be missing something. Look at the last paragraph of the opinion: The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way. The judgment of the Court of Appeals for the Sixth Circuit is reversed. There are two interests, says the Court—society’s interest and the church’s interest.* And the church’s interest triumphs, says the Court. The church must be free to choose those who guide it. There is no expressed concern in that paragraph about judicial incompetence. The expressed concern is about the church’s rights. Again, I’m not objecting to the results to which Chip’s formulation leads. I don’t know quite where it leads. A broad idea of Chip’s “exclusively ecclesiastical questions” could lead to a very robust understanding of Hosanna-Tabor. I take that to be precisely what Marty was fearing in his most recent post. Best, Chris *Interest balancing (cough, cough). ___________________________ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=36340 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, April 27, 2017 7:49 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Church excludes nursing woman 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<mailto: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<mailto: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> [mailto: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/adb7ac84-2a8d-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://iipsj.org/> http://sdjlaw.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<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. -- 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 (mobile, preferred) 202-994-7053 (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.
