Mea culpa!
From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 12:09:10 -0400 Subject: Re: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu That's true -- that there should be no ministerial exemption at all is probably "not the position of most professors who teach and work directly in law and religion." (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) Dale, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is "a very different and nearly unanimous consensus about this case . . ." On Mon, Aug 15, 2011 at 11:59 AM, Paul Horwitz <phorw...@hotmail.com> wrote: I'm certainly happy to plead guilty to overenthusiastic writing; it's been known to happen on blogs, although I try to avoid it. I would note, though, that the position taken in the brief I mention is not just that the ministerial exception raises difficulties of the kinds Marty mentions below, but that it should be eliminated altogether. My claim may still be too extravagant, but I still feel fairly comfortable saying that this is not the position of most professors who teach and work directly in law and religion. Best, Paul Date: Mon, 15 Aug 2011 11:25:30 -0400 Subject: Re: Hosanna-Tabor and the "Ministerial Exception" From: icl...@law.gwu.edu To: religionlaw@lists.ucla.edu Marty is certainly correct to question the conclusion in Paul's post. Doug Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a co-author of one of the leading amicus briefs on the petitioner's side. I don't count Bob Tuttle or me in that league, but our most recent writing on this subject might give some comfort (and some unease) to both sides. I think the Hosanna-Tabor case has been superbly briefed on both sides. I expect the case will prove quite difficult for the Supreme Court, and will defy any easy prediction about the outcome or the line-up of Justices. On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is "a very different and nearly unanimous consensus about this case . . . among those who spend most of their time working on these issues from a law and religion perspective." Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law & religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under Boy Scouts v. Dale (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz <phorw...@hotmail.com> wrote: I have a brief and basically non-substantive post up on Prawfsblawg today about the "Law and Religion Professors" brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the "Law and Religion Professors" brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately. _______________________________________________ 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. 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