Not exactly, I think. The law allows sex to be BFOQ. Of course the BFOQ comes from the religious beliefs which in turn are what is protected by the First Amendment. Other BFOQs based on sex include things like restroom attendants and roles in operas and plays and movies -- though Elizabethan
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I would disagree, because any woman who wants to be a priest is clearly at
odds with heavily document ecclesiology in the Church that forbids them becoming
a priest. Their views, therefore, cut them out of the picture before you
even get to gender.
Marci
Actually, as to the Catholic
The caselaw and legislative history are fairly clear -- and uniform, as far
as I know-- in holding to the contrary. The general right of
churches to insist that their employees share the church's religious beliefs
cannot be used to circumvent the other prohibitions of title VII. For
Title: Re: Harm to Others as a Factor in Accommodation Doctrine
Although Marcis point is well-taken, I think another way to understand Marcs (BTW, how cute is that, Marci and Marc?) point is to change Marcis counter-example from churchs protecting pedophiles under the free exercise clause to
Assume there was no exemption for religious organizations per se under Title VII. But assume there was a BFOQ exemption for any employer, including religious organizations. Can there be any doubt that the free exercise clause would be applied to permit Catholics to ordain only men into the
I see a larger role than Marci does for constitutionally mandated and
judicially enforced free exercise exemptions, but there is a problem with
Brad's argument. A law that prohibited a certain kind of speech *as speech*
would not be neutral and generally applicable; it would target speech the
same
Brad's and Marc's posts raise an excellent question: If free
speech means that people have the constitutional right to impose burdens
on others, why shouldn't free exercise operate the same way? The same
can be said of other rights, incidentally: For instance, the Compulsory
Process
With respect to religious speech, there is no difference. When it
comes to conduct, though, it is fairly obvious that conduct must be capable of
greater regulation than speech, because of its greater potential for harm.
This is a principle that has a distinguished pedigree, Locke,
This is rather far afield, actually. These are questions of what
evidence can be adduced in court. Penitent-minister communications are
generally not fair game and have been excluded, unless the penitent waives the
privilege. Patient-doctor privileges essentially get the same
treatment.
if
Eugene,
Is the distinction between your hypothetical pairings one of free
speech versus free exercise or one of words versus conduct? (Flynt
writes, Glynt yells; the NAACP publishes, Operation Rescue blocks;
Schenck writes/publishes, Penck blocks).
If Glynt, Operation Rescue or Penck were to
Religious speech, it seems to me, should be no more and no less
protected by the Free Speech Clause than other speech. Thus, the
interesting questions (including the ones we've been discussing on
related threads) arise when there's a claim of religious accommodation
for conduct, or for
Mark-- Elvig does not gainsay my point that if an abusive or discriminatory
practice is not motivated by a sincere religious belief, the claim can go
forward in the courts. So the ministerial exception is not some blanket
protection for anything that happens between clergy and religious
Would it have been
acceptable during National Prohibition to force Episcopalians, Eastern Orthodox
and Catholics to assimilate by giving up wine and using grape
juice instead in celebrating the Eucharist? Is the use of wine no different
than the religiously motivated practices that you
What Elvig appears to hold is that if the remedy does not interfere with the
church's selection of its own clergy, the ministerial exception is not
implicated. It certainly does not hold that a pastor can be reinstated if she
was discharged because of her sex, or her complaints about sexual
Title: Message
I dont understand the distinction
between across the board and ad hoc exemptions, particularly as applied to
something like National Prohibition and the exemption for the religious use of
wine.
How are you going to know whether a practice
of a religion about which you
Marci is correct that the ministerial
exception is not some blanket protection for anything that happens
between clergy and religious institution, because courts have
tended not to permit religious entities to rely on it to get rid of claims
of negligent supervision in cases of harm to third
I tend to agree with Eugene that free speech and free exercise rights do
not parallel each other -- so that it does not necessarily follow that
because freedom of speech is protected even when the speech causes harm to
third parties, free exercise rights must receive similar protection. But I
Chip-- I never said that the Catholic Church had experienced such
litigation; we were talking about hypotheticals.
Isthe absence of Catholic Church gender litigationbecause these
cases have never been brought, or because the claimis not cognizable
underthe ministerial exception? With
While free exercise and free speech may be different in many respects, and
indeed most constitutional rights differ from all other rights, as they are
not merely fungible from one to another, I don't think Eugene Volokh's
thoughtful hypotheticals satisfactorily dispose of the argument that free
Marci:
I know of no cases challenging the exclusion of women from the
Catholic priesthood. But if denominations that purport to treat
women and men equally for clergy positions get the benefit of the
ministerial exception, as they do, it would seem to follow a fortiori
that the Catholic
Then, with the sole exception of federal
constitutional amendments, religious groups can expect Establishment Clause
challenges to their hard-won legislative accommodations: as "blind
giveaways" if they are too broad (Cutter), as "denominational preferences" if
too tailored (Kiryas
I appreciate Greg's thoughtful analysis, but I think that
ultimately the magnitude of the burden on the nonspeaker's/nonclaimant's
rights doesn't resolve the problems. I would feel *much* more
distressed by knowing that millions (?) of people are reading about how
I supposedly had sex
I was glad to see Alan's response, and I'll try to respond
myself below. But Alan, what do you think of the three examples I give?
Alan Brownstein writes:
1. As I tried to argue in an earlier post, harm to others can be an
ambiguous term. If it includes financial costs and emotional
I take it that challenges are improper even if well grounded? Not all challenges, of course, prevail (Rosenberger).
On Monday, March 14, 2005, at 04:53 PM, Anthony Picarello wrote:
Then, with the sole exception of federal constitutional amendments, religious groups can expect Establishment
Eugene:
Are you grounding your analysis here of speech and religion in the text of the
First Amendment? It seems to my untutored eye that it is precisely exercise
of religion that is protected, no? Is there any reason to think that exercise
of religion might not
be harmful? I guess my
Suppose instead of Flynt satirizing Falwell, the Rev. Llynt preaches a
sermon in his progressive church decrying the theological positions
taken by Falwell, denouncing the alleged intrusion of Falwell's theology
into politics, and characterizing Falwell as a modern-day Pharisee. The
sermon
I'm not grounding it on the text, which gets us fairly little
here. I'm generally persuaded by Justice Scalia's original meaning
argument in City of Boerne v. Flores as to free exercise; as to the
original meaning of free speech, I think that's basically unknown and
likely unknowable.
I'm not sure why it makes a lot of sense to severely limit the
extent to which courts measure the emotional distress caused by
religious expression (in contrast to other speech) -- why not severely
limit the extent to which courts impose liability on emotional distress
caused by speech,
On Monday, March 14, 2005, at 06:20 PM, Volokh, Eugene wrote:
Rather, my argument is
that the Free Exercise Clause ought not be read as allowing people to do
things that harm others simply because they feel a religious obligation
to do those things.
So you would be against displays of the 10
Compare You're going to get yours some day, and it could be within the
next minute (shouted, eyes bulging, face red, fists clenched, during
law conerence disputing whether a state should permit same-gender
marriages) with You're going to burn in hell and swim with the demons
some day, and it could
I suspect that the distinction here isn't religious speech vs.
secular speech and more (1) speech that sounds like warning of action by
others who are unrelated to the speakers vs. (2) speech that sounds like
warning of action by the speaker or his confederates. If a mother is
really
Title: Message
(1) I don't think anything I've said
suggests that displays of the Ten Commandments by nongovernmental actors could
be restrictable. They are just as protected by the freedom of speech as
displays of any other sentiments. (Whether governmental actors may display
the Ten
I accept Eugene's observation that my comparison cases suffer from
inadequate similarity comparison purposes. Perhaps at some point I'll try
harder to develop less inferior paired hypotheticals to better express my
point (perhaps that task will seem more appealing in a few weeks when I'm
grading
OK, I see your point and it helps me refine the hypo:
1. I pray I can find someone to put an end to your annoying existence
on this planet.
2. I pray to God every night that somehow the angel of death visits
you and puts an end to your annoying existence on this planet.
Assuming that the
As I have said repeatedly, plenty of legislative accommodations are
constitutional and legitimate. Blind accommodation, though, (RFRA/RLUIPA)
in particular, presents legislators at their worst-- deferential to the point of
being brain-dead, when there are obvious harms to others in the
I think the question in either case would be (1) whether the
listener would reasonably understand this as a threat of attack by the
speaker or the speaker's confederates and (2) whether the speaker
intended to put the listener in fear of such attack (see Virginia v.
Black). So it's
Suppose the statement was a wee bit different: This is a really nice
restaurant you have here, except for those blasphemous pictures on the
walls. It would be a shame if God caused it to burn down, for example,
by causing lightning to strike or a meteor fragment to hit, which I pray
every day God
My analysis: Warning of bad behavior by others, who are
genuinely unrelated to the speaker, and who are understood by listeners
to be unrelated to the speaker is protected. Warning of retribution by
God is thus not a threat -- but neither is warning of retribution by
religious zealots,
I actually agree with Greg on much here: The reason that we
allow people to inflict various harms on others via their speech has a
lot to do with *the way* the harm is inflicted: When harm is inflicted
by persuading, informing, or offending people with the content of
speech, we treat
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