Chip and I agree on a lot of this, so I’ll try to make this short: “Chris says this is a matter of church freedom, which it is, but then he has to face the question of why isn't every question a church decides a matter of church freedom (no balancing, and the church always wins).”
True. There have to be limits on church autonomy, just as there are limits on everything else. The most obvious limit is that churches can only claim autonomy in their *religious* affairs. But there also is going to have to be some kind of limitation for sufficiently strong government interests. To give just one example, Hosanna-Tabor gives churches immunity from ministers bringing employment-related claims. But it also says that churches have no immunity from child-labor laws. The interest in protecting children is (rightly) just too strong. Chip and I both think that this line of cases is motivated by two things: (1) notions of judicial incompetence and (2) notions of religious freedom. The only thing I want to press is that (1) exists in significant part because of (2). That is, a big reason why we deem the state incompetent to address religious questions is because we think religious organizations should have the right to decide those questions for themselves without government interference.* Again, at the end of the day, I don’t know if I have any disagreement at all with Chip. I use the phrase, “church autonomy.” He’d prefer the phrase, “church freedom.” I’d say churches have autonomy in their religious affairs. He would rather say, I take it, that they have freedom in deciding ecclesiastical questions. Fine with me. Best, Chris * I have sometimes thought similar things might be said about the political-question doctrine, for its motivations lie both in: (1) notions of judicial incompetence over political questions, (2) notions that political questions are committed to other branches. And again there, (2) becomes a reason for (1). But maybe I should leave well enough alone… From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, April 27, 2017 9:39 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Church excludes nursing woman Thanks for the kind words, Marty. Now look at your formulation: "We [the state] 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." That approach is perfectly inconsistent with the "no balancing" paragraph that Chris Lund cites from the Hosanna-Tabor. Marty's approach fits very well with pre-Smith Free Exercise law, but that's been wiped out by Smith. The Court in Hosanna-Tabor says Smith does not apply in a ministerial exception case. Why? Because who is fit for ministry, like who may attend a particular worship service, cannot be a matter for state decision. Chris says this is a matter of church freedom, which it is, but then he has to face the question of why isn't every question a church decides a matter of church freedom (no balancing, and the church always wins). If you read the article (Marty and Chris have), you will see how deeply grounded the "ecclesiastical question" doctrine is grounded in 1) Supreme Court precedent (church property and personnel cases, all the way back to Watson v. Jones) and 2) widespread, continuous lower court adherence in the wake of Hosanna-Tabor. It rests on both the Free Exercise Clause (freedom to control the conditions of worship -- who leads, and who may attend), and the Establishment Clause (state is not competent to prescribe the appropriate participants in worship). We didn't make this up; we found it deeply in the law. Many others who have defended Hosanna-Tabor are making stuff up about some doctrine of institutional church autonomy that just doesn't exist. On Thu, Apr 27, 2017 at 9:17 PM, Christopher Lund <l...@wayne.edu<mailto:l...@wayne.edu>> wrote: 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<mailto: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> [mailto: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<mailto: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<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.
