A few replies to Chris: 1. The Court never says in Hosanna-Tabor that "churches have no immunity from child-labor laws." Please read that section of the opinion again (page 21 of the pdf version). It explicitly concludes: "The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise." Chris, you are making up some notion of interest balancing in this enterprise that is just not there.
2. I do not think the government could prohibit the ordination of a child minister. I do think it could limit the hours that the child works. 3. "Religious affairs" seems like a much broader (or vaguer) concept than "exclusively ecclesiastical questions." The latter encompasses those questions which the state lacks substantive jurisdiction to decide. (This is a crucial piece of what church-state separation means -- power to decide certain questions). Whether a religious community may proselytize in its *government funded* social service efforts is not an exclusively ecclesiastical question. The government has a legitimate interest in who has access to services it funds. If the social service were exclusively church funded and was part of what it sees as its ministry, the content of the service would present an exclusively ecclesiastical question. On Thu, Apr 27, 2017 at 10:19 PM, Christopher Lund <l...@wayne.edu> wrote: > 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-bounces@ > 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> 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 > > (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-bounces@ > 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> > 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/ > 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://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 (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. > > > > > > -- > > 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. > -- 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.
