Dear Marty,
I'm not sure about how you've constructed the run of the mill and not one of
those sorts of cases categories - because I think it seems to make an awful
lot depend simply on what the government has chosen to identify as a prohibited
ground of decision, and it seems to de-emphasizes
Thanks again, Rick. I'm interested in what others have to say, so I'll just
offer two quick reactions:
1. True enough, as many of you know, I'm no fan of *Dale *-- but my point
is simply that once that doctrine and RFRA (not to mention other statutory
exemptions and the prohibition on courts
A couple responses to Marty.
First of all, are we sure that Hosanna-Tabor actually did violate the
retaliation laws here? Perich and the SG treat it as a given. Maybe I'm
wrong on the facts-and I well could be-but it's not absolutely clear to
me. What do I mean? Well, we all agree that
I appreciate Marty and Rick's conversation. As Rick knows, I tend to share his
broad viewpoint and I've published on this issue before. Let me suggest that
there's a kind of disjuncture in the conversation, one that might be roughly
captured by the difference between thinking locally and
One add-on about Dale. I think Marty's point reveals something important.
I don't know how I feel about Dale either. But I wouldn't want the
Catholic Church's priesthood to be forcibly integrated along gender lines.
I see the two cases as quite different. And I think everyone does. There
were
Whatever the merits of, or problems with, the ministerial exception may be in
this or other cases , I don't see how Dale and RFRA adequately respond to the
issues raised in these cases. First, if one takes Justice Alito's dissenting
opinion in Martinez seriously, even the conservative Justices
I'm sure it must be a function of my lack of clarity, but I think Alan has
misunderstood the points I was trying to make about
RFRA and Dale, which were simply these:
1. Even construed *narrowly* -- and believe me, I do not favor an expansion of
Dale -- these, and other statutory exemptions,
On the second point only, I can imagine two responses. The first you may find
too abstract: that some people may believe that whatever rights Dale secures
for churches, they should not have to rely on freedom of association to get
there. Maybe they just feel that way for abstract or
I’m sorry I may have misunderstood your earlier comments, Marty. But I still
have some misgivings about your position. My problem with point 1 is that I
think the reason a law requiring the ordination of female priests is an easy
case is because the example involves the ordination of clergy –
