RE: Supreme Court sides with church on decision to fire employee on religious grounds
Alan, I'm not predicting two more justices, let alone with any certainty, or talking about all lay teachers. I was only making the point that three justices adopted a broader standard than the majority, and the fact that one of them was Kagan is notable and makes the road to additional votes significantly easier than otherwise. My sense, from oral argument among other things, was that Roberts and Scalia would be easier fifth votes than Kennedy to go further than these facts. On your second point, in many religious schools, at least some lay teachers have a central role, not just some role, in communicating the religious message, as Lemon and many other cases have emphasized. Finally, I agree that funding complicates things. I assume that government has authority to refuse to fund positions where discriminatory selection criteria operate (although, as you know, I think religious-belief selection criteria are a different case concerning religious organizations). I wouldn't turn that authority into carte blanche for funding restrictions. Would you say the mere fact that some lay teachers at a school would be classified within the ministerial exception would justify excluding all students at that school from participating in a true private choice voucher program, or (at the college level) from receiving state scholarships? Would you say this even if the school had not been shown to discriminate but merely referred to such teachers as ministers? - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Alan Brownstein [aebrownst...@ucdavis.edu] Sent: Thursday, January 12, 2012 12:01 AM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Tom, I have long since given up trying to predict how Supreme Court justices will decide future cases (or to assume that there will be logical consistency or even intellectual integrity in all opinions.) But Justice Roberts clearly and repeatedly emphasizes the title, status, and acknowledged role of minister or clergy as significant factors in reaching his decision in this case. Why are you so confident that all of this language in the opinion is superflous? I agree that Alito and Kagan's concurrence provides more support for including some lay teachers in the exception. But even they say What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities. The words important role and a leader arguably mean something different than some role and a participant. Finally, of course, there is the question of how the understanding of who qualifies for the ministerial exception relates to the question of what positions the government can fund in religious institutions. Can the government fund the salary of teachers who play an important role as an instrument of their church's religious message and as a leader in its worship activities? If the answer to that question is Yes and it is also true that such teachers are enough like clergy in their religious functions to be included in the ministerial exception, would it follow that government can also fund the salary of clergy? Is it constitutionally permissible for the government to refuse to fund teaching positions at a religious school which refuses to hire African-Americans, women, and the disabled as teachers? Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [tcb...@stthomas.edu] Sent: Wednesday, January 11, 2012 7:47 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan, I agree that the majority leaves open the issue of lay teachers. But since three justices take a broader approach to defining a minister, all you need for a majority in a later case is two more votes, and Roberts and Scalia seem reasonable prospects to me in a case that presents the issue. Thomas would defer heavily to the religious organization's characterization of an employee as a minister. And Alito and Kagan say that ordained or commissioned status isn't crucial, that the criterion is “positions of substantial religious importance”—including those “teaching and conveying the tenets of the faith to the next generation”--and that
Re: Supreme Court sides with church on decision to fire employee on religious grounds
Do we get anymore out of this opinion on this issue than the fact the Sixth Circuit reaches the wrong decision regarding whether she is an employee or a minister? There several tests out there and none are explicitly embraced or rejected. Marci On Jan 11, 2012, at 2:47 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: Rick, As to lay teachers at religious schools, the Court said, “We express no view on whether someone with Perich’s duties would be covered by the ministerial exception in the absence of the other considerations we have discussed.” I thought that left open the issue of lay teachers at religious schools. Have I missed something here? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Wednesday, January 11, 2012 11:34 AM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Dear Marci, I guess not, but I think people usually think of “clergy” as ordained, or as otherwise officially designated. I think the opinion constitutionalizes an exception that covers a broader category of “ministers” (including, of course, many lay teachers at parochial schools, who are not usually referred to as “clergy.”). Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 ___ 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.
RE: Supreme Court sides with church on decision to fire employee on religious grounds
Alan, I agree that the majority leaves open the issue of lay teachers. But since three justices take a broader approach to defining a minister, all you need for a majority in a later case is two more votes, and Roberts and Scalia seem reasonable prospects to me in a case that presents the issue. Thomas would defer heavily to the religious organization's characterization of an employee as a minister. And Alito and Kagan say that ordained or commissioned status isn't crucial, that the criterion is “positions of substantial religious importance”—including those “teaching and conveying the tenets of the faith to the next generation”--and that the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones. What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities. I can see many lay teachers in seriously religious schools satisfying such a test. Kagan’s agreement with that standard is quite significant, as is her joining the Alito concurrence overall. Tom - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Wednesday, January 11, 2012 1:47 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Rick, As to lay teachers at religious schools, the Court said, “We express no view on whether someone with Perich’s duties would be covered by the ministerial exception in the absence of the other considerations we have discussed.” I thought that left open the issue of lay teachers at religious schools. Have I missed something here? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Wednesday, January 11, 2012 11:34 AM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Dear Marci, I guess not, but I think people usually think of “clergy” as ordained, or as otherwise officially designated. I think the opinion constitutionalizes an exception that covers a broader category of “ministers” (including, of course, many lay teachers at parochial schools, who are not usually referred to as “clergy.”). Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 ___ 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.
RE: Hosanna-Tabor
He certainly could have said more about Smith, but I think they found it easy. The relevance of Smith was extensively briefed by all sides. And at oral argument, Scalia (the author of Smith) said emphatically that This case has nothing to do with Smith. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: Eric J Segall [mailto:eseg...@gsu.edu] Sent: Wednesday, January 11, 2012 12:51 PM To: Douglas Laycock; 'Con Law Prof list' Cc: religionlaw@lists.ucla.edu Subject: RE: Hosanna-Tabor Well, I am a bit reluctant to get into this with Doug and Gene but just a couple of thoughts. Smith, and the Court's recent Establishment Clause jurisprudence, especially the parochial school aid cases, seem to suggest that neutrality and general applicability are the keys to the Religion Clauses (certainly Scalia and Thomas think so). I guess that's not true for internal church governance but not sure why and, being one who believes strongly in Thayer type deference, I am not sure this is not one of those cases where the result makes sense but is not constitutionally required. I hope Doug and Gene agree that Smith was dismissed a bit too casually in Roberts' opinion, if nothing else. Best, Eric From: Douglas Laycock [dlayc...@virginia.edu] Sent: Wednesday, January 11, 2012 11:42 AM To: Eric J Segall; 'Con Law Prof list' Cc: religionlaw@lists.ucla.edu Subject: Hosanna-Tabor Is anyone convinced by the Court's distinction of Smith? Well actually, all nine Justices were convinced, all twelve federal circuits have been convinced, and twelve state supreme courts have been convinced, with none going the other way. Physical acts is not the best label for the scope of Smith, but the basic distinction between internal church governance and other matters goes all the way back to Locke. It is embedded in a line of Supreme Court cases that long pre-date Sherbert and Yoder and that peacefully co-existed with Reynolds v. United States (a case refusing religious exemptions). Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall Sent: Wednesday, January 11, 2012 10:40 AM To: Con Law Prof list Subject: RE: Hosanna-Tabor II This is the sum total, after a quick read, of what the Court said about Smith: But a church's selection of its ministers is unlike an individual's ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government's regulation ofphysical acts from its lend[ing] its power to one or the other side in controversies over religious authority or dogma). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit. Physical acts, v. an internal church decision. Is anyone convinced by this? From: Eric J Segall Sent: Wednesday, January 11, 2012 10:34 AM To: Con Law Prof list Subject: Hosanna-Tabor So Title VII, a generally applicable law that was not passed to hurt or affect religion (and in fact protects religion), does not apply to religious groups. I am not an expert in the Free Exercise Area, but how can Scalia join this opinion? Am I missing something? Thanks, Eric ___ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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.
Re: Supreme Court sides with church on decision to fire employee on religious grounds
The decision is much narrower than Joel's description. It does not cover all employees of religious organizations--only clergy. And it only involves claims involving discrimination against the religious organization, leaving open litigation from even clergy on contract and tort theories. Marci On Jan 11, 2012, at 12:26 PM, Joel wrote: The Supreme Court has sided unanimously with a church sued for firing an employee on religious grounds, issuing an opinion on Wednesday that religious employers can keep the government out of hiring and firing decisions. In the case of Hosanna-Tabor v. EEOC, Cheryl Perich, a called teacher, argued that the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich., had discriminated against her under the Americans With Disabilities Act by refusing to reinstate her to her job after she took leave for narcolepsy. http://www.foxnews.com/politics/2012/01/11/supreme-court-sides-with-church-on-decision-to-fire-employee-on-religious/ Joel L. Sogol Attorney at Law 811 21st Ave. Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: jlsa...@wwisp.com website: www.joelsogol.com Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. ___ 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.
Re: Hosanna-Tabor
I agree. :-) And great to have seen you in DC! David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 6:49 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: I agree with David, though I would characterize the Court's paradigmatic concern as being about the right to choose selection criteria. Catholics and Orthodox Jews plainly have the right to favor men over women and Hosanna Tabor Lutherans have the right to choose mediators instead of litigators. I am not persuaded by Howard's characterization of some kind of institutional autonomy. The unanimous decision is too carefully parsed for that to be a touchstone for future interpretation. The way the decision is constructed and explained, there are many open questions and every case will be fact specific. Except we know for sure that there is no jurisdictional bar so cases will have to be scrutinized by the courts and subject to judicial interpretation. Marci On Jan 11, 2012, at 8:58 PM, David Cruz dc...@law.usc.edumailto:dc...@law.usc.edu wrote: It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil interference with employment clergy and more on civil interference with selection (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 4:54 PM, Friedman, Howard M. howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote: I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability to decide religious questions (a.k.a. the hands-off principle, the no religious decisions principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that autonomy is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by ministers, the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- it was retaliation based on religious principle -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about disability to decide religious questions, but it has little force if one simply says, Look, the idea that religious groups get to decide who will play important spiritual roles without state interference is very old, and state interference in the selection of clergy is at the core of what the Establishment Clause meant to forbid. If she's a minister, the state can't
RE: Hosanna-Tabor
I agree with Doug on this, and want to add one item: The Sherbert/Yoder regime put courts in the position of having to evaluate a vast range of laws -- antidiscrimination laws, animal cruelty laws, assisted suicide bans, child labor laws, compelled testimony laws, copyright laws, drug laws, tax laws, traffic laws, zoning laws, and more -- in lawsuits brought by anyone who could sincerely claim a religious objection to their application to him (a group that might start small for each law, but might well grow as the availability of exemptions led people, subconsciously or deliberately, to assert convenient religious beliefs). The Smith majority rebelled (I think correctly) against having federal courts deciding in each case whether the government interest was compelling enough and whether the law was really necessary to serve the interest, which is to say against having federal courts constantly second-guessing the legislature's moral and practical judgment behind a vas! t range of laws. (This is also, I think, why the Court has provided extremely modest protection against content-neutral restrictions on expressive conduct, both imposing in O'Brien a much more deferential test than strict scrutiny and then holding in Rumsfeld v. FAIR that the protection would in any event only apply to a narrow range of conduct that was expressive on its own.) Hosanna-Tabor puts courts in the position of constraining legislative judgment only as to a narrow range of conduct: church selection of ministers. Despite the Court's point that the right is not the same as the right to freedom of association, this zone of judicial control is already not far from the zone where judges have to protect expressive associations' rights to choose leaders and members. What's more, this is a zone where there has been a much more solid and consistent history of immunity from governmental control. And in any event, it's just substantively quite a narrow zone. So while the private interest involved in Smith and Hosanna-Tabor may be comparable -- or in some Smith cases even greater -- and the government interest may often be similar (indeed, Smith applies to antidiscrimination laws themselves), the magnitude of the judicial intrusion in Sherbert/Yoder is much greater than in Hosanna-Tabor. And that, I think, rightly makes a big difference. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, January 11, 2012 8:42 AM To: 'Eric J Segall'; 'Con Law Prof list' Cc: religionlaw@lists.ucla.edu Subject: Hosanna-Tabor Is anyone convinced by the Court's distinction of Smith? Well actually, all nine Justices were convinced, all twelve federal circuits have been convinced, and twelve state supreme courts have been convinced, with none going the other way. Physical acts is not the best label for the scope of Smith, but the basic distinction between internal church governance and other matters goes all the way back to Locke. It is embedded in a line of Supreme Court cases that long pre-date Sherbert and Yoder and that peacefully co-existed with Reynolds v. United States (a case refusing religious exemptions). Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall Sent: Wednesday, January 11, 2012 10:40 AM To: Con Law Prof list Subject: RE: Hosanna-Tabor II This is the sum total, after a quick read, of what the Court said about Smith: But a church's selection of its ministers is unlike an individual's ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government's regulation ofphysical acts from its lend[ing] its power to one or the other side in controversies over religious authority or dogma). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit. Physical acts, v. an internal church decision. Is anyone convinced by this? From: Eric J Segall Sent: Wednesday, January 11, 2012 10:34 AM To: Con Law Prof list Subject: Hosanna-Tabor So Title VII, a generally applicable law that was not passed to hurt or affect religion (and in fact protects religion), does not apply to religious groups. I am not an expert in the Free Exercise Area, but how can Scalia join this opinion? Am I missing something? Thanks, Eric
RE: Supreme Court sides with church on decision to fire employee on religious grounds
Dear Marci, I think you are right about the second sentence, but I disagree with your second. The opinion seems clearly to reach beyond clergy. Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://www.mirrorofjustice.blogs.com/ Law, Religion, and Ethicshttp://lawreligionethics.net/ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, January 11, 2012 12:34 PM To: Law Religion issues for Law Academics Subject: Re: Supreme Court sides with church on decision to fire employee on religious grounds The decision is much narrower than Joel's description. It does not cover all employees of religious organizations--only clergy. And it only involves claims involving discrimination against the religious organization, leaving open litigation from even clergy on contract and tort theories. Marci On Jan 11, 2012, at 12:26 PM, Joel wrote: The Supreme Court has sided unanimously with a church sued for firing an employee on religious grounds, issuing an opinion on Wednesday that religious employers can keep the government out of hiring and firing decisions. In the case of Hosanna-Tabor v. EEOC, Cheryl Perich, a called teacher, argued that the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich., had discriminated against her under the Americans With Disabilities Act by refusing to reinstate her to her job after she took leave for narcolepsy. http://www.foxnews.com/politics/2012/01/11/supreme-court-sides-with-church-on-decision-to-fire-employee-on-religious/ Joel L. Sogol Attorney at Law 811 21st Ave. Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: jlsa...@wwisp.commailto:jlsa...@wwisp.com website: www.joelsogol.comhttp://www.joelsogol.com Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. ___ To post, send message to Religionlaw@lists.ucla.edumailto: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.
RE: Hosanna-Tabor
There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability to decide religious questions (a.k.a. the hands-off principle, the no religious decisions principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that autonomy is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by ministers, the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- it was retaliation based on religious principle -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about disability to decide religious questions, but it has little force if one simply says, Look, the idea that religious groups get to decide who will play important spiritual roles without state interference is very old, and state interference in the selection of clergy is at the core of what the Establishment Clause meant to forbid. If she's a minister, the state can't second-guess that decision in an employment discrimination suit. Period. At least to me, the majority opinion reads like the quote at the end of the last paragraph. It doesn't seem to hold out any possibility that some employment discrimination cases might be within the judiciary's competence to decide if only it could do so without getting into religious questions. One could perhaps reach the same result by saying Where it's a discrimination claim, religious questions will always be involved and thus the no-religious-decisions principle explains everything. Some panelists on Saturday appeared to express that view, and it might be correct. But it's striking to me that this argument is made only by Alito. The majority opinion seems to me closer in spirit to Rick's idea that maybe the hiring and firing of ministers is a matter of sphere sovereignty -- the state's authority to regulate here just runs out. I think this is also the approach Doug asked them to take, and it's pretty similar to what we used to call church autonomy back in the day. I understand the (good) reasons for some discomfort with the term, but I'm not sure the idea is all that different. (At least in this context, I'm not sure that the difference between autonomy and internal church governance amounts to much. Again, I agree with Marci and Doug that if this is church autonomy, it doesn't reach outside employment discrimination.) John Taylor Professor and Associate Dean for Academic Affairs WVU College of Law Alan Brownstein aebrownst...@ucdavis.edu 1/11/2012 2:08 PM While there is a lot of merit in what Eugene writes, it seems to me that he is identifying three arguments in support of the ministerial exemption: 1. It has strong historical roots. 2. There is a freedom of association dimension to it. 3. It is very circumscribed in its scope and involves far less judicial intrusion into executive and legislative decisions. All are valid points. But I'm not sure they adequately distinguish why this particular set of religious decisions gets constitutional protection while others do not. 1. Other religious exemptions have strong historical roots. 2. Many individual religious practices have an expressive dimension and communicate the beliefs and commitment of the believer. Is the right of expressive associations to choose their leaders more deserving of protection than the right of individuals and congregations to express their beliefs through religious worship and practice? And if the expressive associational dimension of religious groups choosing their leader is part of the foundation of this decision, one might argue that freedom of speech and association doctrine undermine the claim that organizations
RE: Hosanna-Tabor
I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability to decide religious questions (a.k.a. the hands-off principle, the no religious decisions principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that autonomy is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by ministers, the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- it was retaliation based on religious principle -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about disability to decide religious questions, but it has little force if one simply says, Look, the idea that religious groups get to decide who will play important spiritual roles without state interference is very old, and state interference in the selection of clergy is at the core of what the Establishment Clause meant to forbid. If she's a minister, the state can't second-guess that decision in an employment discrimination suit. Period. At least to me, the majority opinion reads like the quote at the end of the last paragraph. It doesn't seem to hold out any possibility that some employment discrimination cases might be within the judiciary's competence to decide if only it could do so without getting into religious questions. One could perhaps reach the same result by saying Where it's a discrimination claim, religious questions will always be involved and thus the no-religious-decisions principle explains everything. Some panelists on Saturday appeared to express that view, and it might be correct. But it's striking to me that this argument is made only by Alito. The majority opinion seems to me closer in spirit to Rick's idea that maybe the hiring and firing of ministers is a matter of sphere sovereignty -- the state's authority to regulate here just runs out. I think this is also the approach Doug asked them to take, and it's pretty similar to what we used to call church autonomy back in the day. I understand the (good) reasons for some discomfort with the term, but I'm not sure the idea is all that different. (At least in this context, I'm not sure that the difference between autonomy and internal church governance amounts to much. Again, I agree with Marci and Doug that if this is church autonomy, it doesn't reach outside employment discrimination.) John Taylor Professor and Associate Dean for Academic Affairs WVU College of Law Alan Brownstein aebrownst...@ucdavis.edu 1/11/2012 2:08 PM While there is a lot of merit in what Eugene writes, it seems to me that he is identifying three arguments in support of the ministerial exemption: 1. It has strong historical roots. 2. There is a freedom of association dimension to it. 3. It is very circumscribed in its scope and involves far less judicial intrusion into executive and legislative decisions. All are valid points. But I'm not sure they adequately distinguish why this particular set of religious decisions gets constitutional protection while others do not. 1. Other religious exemptions have strong historical roots. 2. Many individual religious practices have an
Re: Supreme Court sides with church on decision to fire employee on religious grounds
Why would we think any of the 3 separate concurrers are expressing views shared by others? At least from the oral argument, I would think they are on the fringe of thinking on these issues. Don't forget Kagan was a prime mover behind RFRA and RLUIPA in the Clinton Administration. I would not read her joining Alito as evidence of a middle ground. Rather, they may share a world view in this arena Marci On Jan 11, 2012, at 3:03 PM, Steven Green sgr...@willamette.edu wrote: The most interesting part of the decision is of course what the Court did not decide: who decides who is a minister in less obvious situations. I don't take Thomas' solo concurrence advocating near complete deference to church officials as indicating he is the only justice who may vote that way; rather, simply that reaching that issue was unnecessary to get a unanimous opinion. In that Alito and Kagan are in opposite camps and they jointly offer a functional approach may say something about those in the middle, but I find their criteria too narrow to be a comprehensive statement. I think others may lean toward Thomas. Steve -- Steven K. Green, J.D., Ph.D. Fred H. Paulus Professor of Law and Director Center for Religion, Law and Democracy Willamette University 900 State St., S.E. Salem, Oregon 97301 503-370-6732 On Wed, Jan 11, 2012 at 11:33 AM, Rick Garnett rgarn...@nd.edu wrote: Dear Marci, I guess not, but I think people usually think of “clergy” as ordained, or as otherwise officially designated. I think the opinion constitutionalizes an exception that covers a broader category of “ministers” (including, of course, many lay teachers at parochial schools, who are not usually referred to as “clergy.”). Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page Blogs: Prawfsblawg Mirror of Justice Law, Religion, and Ethics From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, January 11, 2012 2:26 PM To: Law Religion issues for Law Academics Subject: Re: Supreme Court sides with church on decision to fire employee on religious grounds Rick--I meant by clergy whatever the Court is saying is a minister I did not intend ordained clergy. Do we still disagree? Marci On Jan 11, 2012, at 2:16 PM, Rick Garnett wrote: Dear Marci, I think you are right about the second sentence, but I disagree with your second. The opinion seems clearly to reach beyond “clergy.” Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page Blogs: Prawfsblawg Mirror of Justice Law, Religion, and Ethics From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, January 11, 2012 12:34 PM To: Law Religion issues for Law Academics Subject: Re: Supreme Court sides with church on decision to fire employee on religious grounds The decision is much narrower than Joel's description. It does not cover all employees of religious organizations--only clergy. And it only involves claims involving discrimination against the religious organization, leaving open litigation from even clergy on contract and tort theories. Marci On Jan 11, 2012, at 12:26 PM, Joel wrote: The Supreme Court has sided unanimously with a church sued for firing an employee on religious grounds, issuing an opinion on Wednesday that religious employers can keep the government out of hiring and firing decisions. In the case of Hosanna-Tabor v. EEOC, Cheryl Perich, a called teacher, argued that the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich., had discriminated against her under the Americans With Disabilities Act by refusing to reinstate her to her job after she took leave for narcolepsy. http://www.foxnews.com/politics/2012/01/11/supreme-court-sides-with-church-on-decision-to-fire-employee-on-religious/ Joel L. Sogol Attorney at Law 811 21st Ave. Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: jlsa...@wwisp.com website: www.joelsogol.com Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
RE: Supreme Court sides with church on decision to fire employee on religious grounds
Dear Marci, I guess not, but I think people usually think of clergy as ordained, or as otherwise officially designated. I think the opinion constitutionalizes an exception that covers a broader category of ministers (including, of course, many lay teachers at parochial schools, who are not usually referred to as clergy.). Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://www.mirrorofjustice.blogs.com/ Law, Religion, and Ethicshttp://lawreligionethics.net/ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, January 11, 2012 2:26 PM To: Law Religion issues for Law Academics Subject: Re: Supreme Court sides with church on decision to fire employee on religious grounds Rick--I meant by clergy whatever the Court is saying is a minister I did not intend ordained clergy. Do we still disagree? Marci On Jan 11, 2012, at 2:16 PM, Rick Garnett wrote: Dear Marci, I think you are right about the second sentence, but I disagree with your second. The opinion seems clearly to reach beyond clergy. Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://www.mirrorofjustice.blogs.com/ Law, Religion, and Ethicshttp://lawreligionethics.net/ From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, January 11, 2012 12:34 PM To: Law Religion issues for Law Academics Subject: Re: Supreme Court sides with church on decision to fire employee on religious grounds The decision is much narrower than Joel's description. It does not cover all employees of religious organizations--only clergy. And it only involves claims involving discrimination against the religious organization, leaving open litigation from even clergy on contract and tort theories. Marci On Jan 11, 2012, at 12:26 PM, Joel wrote: The Supreme Court has sided unanimously with a church sued for firing an employee on religious grounds, issuing an opinion on Wednesday that religious employers can keep the government out of hiring and firing decisions. In the case of Hosanna-Tabor v. EEOC, Cheryl Perich, a called teacher, argued that the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich., had discriminated against her under the Americans With Disabilities Act by refusing to reinstate her to her job after she took leave for narcolepsy. http://www.foxnews.com/politics/2012/01/11/supreme-court-sides-with-church-on-decision-to-fire-employee-on-religious/ Joel L. Sogol Attorney at Law 811 21st Ave. Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: jlsa...@wwisp.commailto:jlsa...@wwisp.com website: www.joelsogol.comhttp://www.joelsogol.com Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. ___ To post, send message to Religionlaw@lists.ucla.edumailto: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.edumailto: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.
RE: Hosanna-Tabor
Professor Friedmans thoughtful post shows that the decision raises a line of questions regarding the IRS position on eligibility for the Parsonage exemption (see excerpt from IRS Audit Guide below) and local real property tax exemptions for clergy occupied properties . Can I be a minister for limiting my litigation rights upon termination but not be entitled to parsonage. Does the IRS have the right to determine if an applicant was commissioned ..and was a duly qualified member? Why differentiate between teaching at theological seminaries and religious studies in grade schools ? Who Qualifies For Special Tax Treatment As A Minister To qualify for the special tax provisions available to ministers, an individual must be a minister and must perform services in the exercise of his ministry. Treas. Reg. § 1.107-1(a) incorporates the rules of Treas. Reg. § 1.1402(c)-5 in determining whether the individual is performing the duties of a minister of the gospel. Treas. Reg. § 1.1402(c)-5 requires that an individual be a duly ordained, commissioned, or licensed minister of a church. The Tax Court has interpreted this phrase to be disjunctive, finding the purpose is not to limit benefits to the ordained, but is to prevent self appointed ministers from benefiting. Salkov v. Commissioner, 46 T.C. 190, 197 (1966). The Tax Court in Salkov held that a Jewish cantor was a minister eligible for the IRC § 107 housing allowance. Id. at 198-99. It concluded that the petitioner qualified because he was commissioned by, and was a duly qualified member of the Cantors Assembly of America, which functions as the official cantorial body for the Conservative branch of the Jewish religion in America, and because he was selected by a representative Conservative congregation to perform the functions of cantor. Id. at 197. Treas. Reg. § 1.1402(c)-5(b)(2) provides that service performed by a minister in the exercise of the ministry includes: a. Ministration of sacerdotal functions; b. Conduct of religious worship; c. Control, conduct, and maintenance of religious organizations (including the religious boards, societies, and other integral agencies of such organizations), under the authority of a religious body constituting a church or denomination. Treas. Reg. § 1.1402(c)-5(b)(2) also provides that whether service performed by a minister constitutes conduct of religious worship or ministration of sacerdotal functions depends on the tenets and practices of the particular religious body constituting the church or denomination. Treas. Reg. § 1.107-1(a) also provides examples of specific services considered duties of a minister, including: a. Performance of sacerdotal functions; b. Conduct of religious worship; c. Administration and maintenance of religious organizations and their integral agencies; d. Performance of teaching and administrative duties at theological seminaries. The duties performed by the individual are also important to the initial determination whether he or she is a duly ordained, commissioned, or licensed minister. Because religious disciplines vary in their formal procedures for these designations, whether an individual is duly ordained, commissioned, or licensed depends on these facts and circumstances SAMUEL M. KRIEGER Krieger Prager LLP skrie...@kplawfirm.com Tel: (212) 363-2900 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Wednesday, January 11, 2012 7:49 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church. html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability to decide religious questions (a.k.a. the hands-off principle, the no religious decisions principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got
Re: Hosanna-Tabor
It seems to me that part of the problem with the framing of the distinction between Smith and Hosanna-Tabor is that physical acts vs. internal governance does not well describe in parallel the concerns of the state in both cases. Internal governance is what Hosanna Tabor protects for religious institutions. But if we consider physical acts (as inapt as that characterization is), that is really about the nature of that which concerns the state. It goes to the harm the state is trying to redress. So, here, the counterpart to physical acts (peyote ingestion in Smith) should be disability discrimination in employment. Of course, the nature of that employment was religious, which is why First Amendment rights trump the state's concerns here. But the dignitary and economic harms Cheryl Perich alleged are not obviated by the fact that her employment was as a religious leader. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On 1/11/12 8:42 AM, Douglas Laycock dlayc...@virginia.edu wrote: Is anyone convinced by the Court's distinction of Smith? Well actually, all nine Justices were convinced, all twelve federal circuits have been convinced, and twelve state supreme courts have been convinced, with none going the other way. Physical acts is not the best label for the scope of Smith, but the basic distinction between internal church governance and other matters goes all the way back to Locke. It is embedded in a line of Supreme Court cases that long pre-date Sherbert and Yoder and that peacefully co-existed with Reynolds v. United States (a case refusing religious exemptions). Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall Sent: Wednesday, January 11, 2012 10:40 AM To: Con Law Prof list Subject: RE: Hosanna-Tabor II This is the sum total, after a quick read, of what the Court said about Smith: But a church's selection of its ministers is unlike an individual's ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government's regulation ofphysical acts from its lend[ing] its power to one or the other side in controversies over religious authority or dogma). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit. Physical acts, v. an internal church decision. Is anyone convinced by this? From: Eric J Segall Sent: Wednesday, January 11, 2012 10:34 AM To: Con Law Prof list Subject: Hosanna-Tabor So Title VII, a generally applicable law that was not passed to hurt or affect religion (and in fact protects religion), does not apply to religious groups. I am not an expert in the Free Exercise Area, but how can Scalia join this opinion? Am I missing something? Thanks, Eric ___ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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. ___ 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.
RE: Hosanna-Tabor
Dear Mark, In my view, one of the welcome aspects of the Chief Justice's opinion is that it seems to make the *reason* for the employment action in question irrelevant . . . assuming we are dealing with a ministerial employee who is challenging his or her termination: The EEOC and Perich suggest that Hosanna-Tabor’s asserted religious reason for firing Perich—that she violated the Synod’s commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exceptioninstead ensures that the authority to select and controlwho will minister to the faithful—a matter strictly ecclesiastical, Kedroff, 344 U. S., at 119—is the church’s alone.4 Best, Rick Richard W. Garnett Professor of Law Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, IN 46556-0780 574-631-6981 (office) 574-631-4197 (fax) From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Wednesday, January 11, 2012 11:19 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor What if the church board fires a minister and admits, prior to the filing of an action, that it was not for religious reasons but because he was disabled or because of his race or for some other reason that ordinarily would be impermissible. If the church states that there is no religious reason for the firing – if it says that the discrimination is not based on any religious tenet – does the Court’s holding protect the church? Perhaps the point is that a court simply can’t take cognizance of a religious organization’s reason for firing a minister, or involve itself in such a case, even if there is no dispute about the reason being nonreligious. But I’m not sure. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz Sent: Wednesday, January 11, 2012 5:58 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Hosanna-Tabor It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil interference with employment clergy and more on civil interference with selection (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 4:54 PM, Friedman, Howard M. howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote: I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability to decide religious questions (a.k.a. the hands-off principle, the no religious decisions principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that autonomy is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by
RE: Hosanna-Tabor
No, the framing in terms of physical acts is not terribly descriptively useful here. But to adapt your language, one way we might see this decision, and certainly the issues it raises, is that it raises the very question of what concerns the state and what concerns the church, rather than simply assuming that anything that concerns the state in some way should be characterized as necessarily falling within its jurisdiction, or simply assuming that what concerns the church is wholly residual or a matter of the state's grace. In that sense, this *relationship* concerned the church and fell outside the state's purview, even if it involved what one might describe as dignitary and economic harms. In any event, I'm far from satisfied that it's clear that the potential dignitary and economic harms here weren't obviated by the fact that her employment was as a religious leader. At least in some cases, it seems quite relevant to me. Regards, Paul Horwitz University of Alabama School of Law From: dc...@law.usc.edu To: religionlaw@lists.ucla.edu; conlawp...@lists.ucla.edu Date: Wed, 11 Jan 2012 08:56:31 -0800 Subject: Re: Hosanna-Tabor It seems to me that part of the problem with the framing of the distinction between Smith and Hosanna-Tabor is that physical acts vs. internal governance does not well describe in parallel the concerns of the state in both cases. Internal governance is what Hosanna Tabor protects for religious institutions. But if we consider physical acts (as inapt as that characterization is), that is really about the nature of that which concerns the state. It goes to the harm the state is trying to redress. So, here, the counterpart to physical acts (peyote ingestion in Smith) should be disability discrimination in employment. Of course, the nature of that employment was religious, which is why First Amendment rights trump the state's concerns here. But the dignitary and economic harms Cheryl Perich alleged are not obviated by the fact that her employment was as a religious leader. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On 1/11/12 8:42 AM, Douglas Laycock dlayc...@virginia.edu wrote: Is anyone convinced by the Court's distinction of Smith? Well actually, all nine Justices were convinced, all twelve federal circuits have been convinced, and twelve state supreme courts have been convinced, with none going the other way. Physical acts is not the best label for the scope of Smith, but the basic distinction between internal church governance and other matters goes all the way back to Locke. It is embedded in a line of Supreme Court cases that long pre-date Sherbert and Yoder and that peacefully co-existed with Reynolds v. United States (a case refusing religious exemptions). Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall Sent: Wednesday, January 11, 2012 10:40 AM To: Con Law Prof list Subject: RE: Hosanna-Tabor II This is the sum total, after a quick read, of what the Court said about Smith: But a church's selection of its ministers is unlike an individual's ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government's regulation ofphysical acts from its lend[ing] its power to one or the other side in controversies over religious authority or dogma). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit. Physical acts, v. an internal church decision. Is anyone convinced by this? From: Eric J Segall Sent: Wednesday, January 11, 2012 10:34 AM To: Con Law Prof list Subject: Hosanna-Tabor So Title VII, a generally applicable law that was not passed to hurt or affect religion (and in fact protects religion), does not apply to religious groups. I am not an expert in the Free Exercise Area, but how can Scalia join this opinion? Am I missing something? Thanks, Eric ___ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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
RE: Hosanna-Tabor
It is interesting to note that Justice Thomas would defer to a religious organization's good faith determination that a person is a minister. Take the question whether a person has had formal religious education. That is a factor under the Court's decision, but not determinative. There certainly are churches that do not require a minister to have formal religious education (though typically the senior minister will have such education). That is true of my church (the Church of Christ, not to be confused with the United Church of Christ), and I think it may be true of some black churches. It may be especially true of churches that are made up of, or historically were made up of, largely those who could not afford formal religious education, and of others who think that God may call anyone to the role of minister. John Leland, for example , the very influential Baptist minister at the time of the Founding, did not have formal religious training. Initially he was not even ordained by a congregation or by other Baptist ministers. The concurrence by Justice Alito (joined by Justice Kagan) points out that ordination is not a reliable indicator of whether someone is a minister within the meaning of the ministerial exception. By the way, I will be moderating a panel on the ministerial exception at Pepperdine's Feb. 23-25 conference entitled The Competing Claims of Law Religion: Who Should Influence Whom? (The scheduled panelists are Ian Bartrum, Caroline Mala Corbin, Paul Horwitz, Michael P. Moreland, and Nora O'Callaghan. Many others of you will be speaking there, but for those of you who don't know about it, the information is here: http://law.pepperdine.edu/nootbaar/news-events/events/law-and-religion/. The conference is sponsored by Pepperdine Law School's Herbert and Elinor Nootbaar Institute on Law, Religion and Ethics. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law ___ 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.
Hosanna-Tabor: note that unanimous Court characterized EEOC position as extreme
Has it happened before that the Court has unanimously given such a negative description of the view put forward by the solicitor general for the Justice Department on behalf of the EEOC? I suppose so, but I can't remember such a case. Although the Sixth Circuit did not adopt the extreme position pressed here by the EEOC ... Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law ___ 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.
Re: Hosanna-Tabor
I agree with David, though I would characterize the Court's paradigmatic concern as being about the right to choose selection criteria. Catholics and Orthodox Jews plainly have the right to favor men over women and Hosanna Tabor Lutherans have the right to choose mediators instead of litigators. I am not persuaded by Howard's characterization of some kind of institutional autonomy. The unanimous decision is too carefully parsed for that to be a touchstone for future interpretation. The way the decision is constructed and explained, there are many open questions and every case will be fact specific. Except we know for sure that there is no jurisdictional bar so cases will have to be scrutinized by the courts and subject to judicial interpretation. Marci On Jan 11, 2012, at 8:58 PM, David Cruz dc...@law.usc.edu wrote: It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil interference with employment clergy and more on civil interference with selection (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 4:54 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability to decide religious questions (a.k.a. the hands-off principle, the no religious decisions principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that autonomy is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by ministers, the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- it was retaliation based on religious principle -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about disability to decide religious questions, but it has little force if one simply says, Look, the idea that religious groups get to decide who will play important spiritual roles without state interference is very old, and state interference in the selection of clergy is at the core of what the Establishment Clause meant to forbid. If she's a minister, the state can't second-guess that decision in an employment discrimination suit. Period. At least to me, the majority opinion reads like the quote at the end of the last paragraph. It doesn't seem to hold out any possibility that some employment discrimination cases might be within the judiciary's
HOSANNA-TABOR EVANGELICAL LUTHERAN
HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH ( ) 597 F. 3d 769, reversed. Syllabus Opinion [Roberts] Concurrence [Thomas] Concurrence [Alito] Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber Lumber Co., 200 U. S. 321 . SUPREME COURT OF THE UNITED STATES Syllabus HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION et al. certiorari to the united states court of appeals for the sixth circuit No. 10–553. Argued October 5, 2011—Decided January 11, 2012 Petitioner Hosanna-Tabor Evangelical Lutheran Church and School is a member congregation of the Lutheran Church–Missouri Synod. The Synod classifies its school teachers into two categories: “called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God. To be eligible to be considered “called,” a teacher must complete certain academic requirements, including a course of theological study. Once called, a teacher receives the formal title “Minister of Religion, Commissioned.” “Lay” teachers, by contrast, are not required to be trained by the Synod or even to be Lutheran. Although lay and called teachers at Hosanna-Tabor generally performed the same duties, lay teachers were hired only when called teachers were unavailable. After respondent Cheryl Perich completed the required training, Hosanna-Tabor asked her to become a called teacher. Perich accepted the call and was designated a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led her students in daily prayer and devotional exercises, and took her students to a weekly school-wide chapel service. Perich led the chapel service herself about twice a year. Perich developed narcolepsy and began the 2004–2005 school year on disability leave. In January 2005, she notified the school principal that she would be able to report to work in February. The principal responded that the school had already contracted with a lay teacher to fill Perich’s position for the remainder of the school year. The principal also expressed concern that Perich was not yet ready to return to the classroom. The congregation subsequently offered to pay a portion of Perich’s health insurance premiums in exchange for her resignation as a called teacher. Perich refused to resign. In February, Perich presented herself at the school and refused to leave until she received written documentation that she had reported to work. The principal later called Perich and told her that she would likely be fired. Perich responded that she had spoken with an attorney and intended to assert her legal rights. In a subsequent letter, the chairman of the school board advised Perich that the congregation would consider whether to rescind her call at its next meeting. As grounds for termination, the letter cited Perich’s “insubordination and disruptive behavior,” as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.” The congregation voted to rescind Perich’s call, and Hosanna-Tabor sent her a letter of termination. Perich filed a charge with the Equal Employment Opportunity Commission, claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Perich intervened in the litigation. Invoking what is known as the “ministerial exception,” Hosanna-Tabor argued that the suit was barred by the First Amendment because the claims concerned the employment relationship between a religious institution and one of its ministers. The District Court agreed and granted summary judgment in Hosanna-Tabor’s favor. The Sixth Circuit vacated and remanded. It recognized the existence of a ministerial exception rooted in the First Amendment , but concluded that Perich did not qualify as a “minister” under the exception. Held: 1. The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws. Pp. 6–15. (a) The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. By
Hosanna Tabor Decided By Supreme Court
http://religionclause.blogspot.com/2012/01/supreme-court-upholds-ministerial.html Howard Friedman ___ 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.
Re: Supreme Court sides with church on decision to fire employee on religious...
Rick-- I hear you. The Court indicates that what is a minister will be fact intensive in each case. There are lay teachers in a wide variety of contexts and a wide variety of religious settings. It will be interesting to learn whether the courts treat, e.g., a coach who only coaches at a school (and does not teach during the day) as a lay teacher for these purposes. Marci Marci A. Hamilton 36 Timber Knoll Drive Washington Crossing, PA 18977 215-353-8984 Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 @Marci_Hamilton _www.facebook.com/professormarciahamilton_ (http://www.facebook.com/professormarciahamilton) In a message dated 1/12/2012 12:16:30 P.M. Eastern Standard Time, rgarn...@nd.edu writes: Dear Marci, I guess not, but I think people usually think of “clergy” as ordained, or as otherwise officially designated. I think the opinion constitutionalizes an exception that covers a broader category of “ministers” (including, of course, many lay teachers at parochial schools, who are not usually referred to as “clergy.”). Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) _SSRN page_ (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235) Blogs: _Prawfsblawg_ (http://prawfsblawg.blogs.com/) _Mirror of Justice_ (http://www.mirrorofjustice.blogs.com/) _Law, Religion, and Ethics_ (http://lawreligionethics.net/) From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, January 11, 2012 2:26 PM To: Law Religion issues for Law Academics Subject: Re: Supreme Court sides with church on decision to fire employee on religious grounds Rick--I meant by clergy whatever the Court is saying is a minister I did not intend ordained clergy. Do we still disagree? Marci inline: marci%20hamilton%20signature%20cropped.jpg___ 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.
RE: Supreme Court sides with church on decision to fire employee on religious grounds
Rick, As to lay teachers at religious schools, the Court said, We express no view on whether someone with Perich's duties would be covered by the ministerial exception in the absence of the other considerations we have discussed. I thought that left open the issue of lay teachers at religious schools. Have I missed something here? Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Wednesday, January 11, 2012 11:34 AM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Dear Marci, I guess not, but I think people usually think of clergy as ordained, or as otherwise officially designated. I think the opinion constitutionalizes an exception that covers a broader category of ministers (including, of course, many lay teachers at parochial schools, who are not usually referred to as clergy.). Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 ___ 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.
Re: Supreme Court sides with church on decision to fire employee on religious grounds
The most interesting part of the decision is of course what the Court did not decide: who decides who is a minister in less obvious situations. I don't take Thomas' solo concurrence advocating near complete deference to church officials as indicating he is the only justice who may vote that way; rather, simply that reaching that issue was unnecessary to get a unanimous opinion. In that Alito and Kagan are in opposite camps and they jointly offer a functional approach may say something about those in the middle, but I find their criteria too narrow to be a comprehensive statement. I think others may lean toward Thomas. Steve -- Steven K. Green, J.D., Ph.D. Fred H. Paulus Professor of Law and Director Center for Religion, Law and Democracy Willamette University 900 State St., S.E. Salem, Oregon 97301 503-370-6732 On Wed, Jan 11, 2012 at 11:33 AM, Rick Garnett rgarn...@nd.edu wrote: Dear Marci, ** ** I guess not, but I think people usually think of “clergy” as ordained, or as otherwise officially designated. I think the opinion constitutionalizes an exception that covers a broader category of “ministers” (including, of course, many lay teachers at parochial schools, who are not usually referred to as “clergy.”). ** ** Best wishes, ** ** Rick ** ** Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 ** ** 574-631-6981 (w) 574-276-2252 (cell) ** ** SSRN page http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 ** ** Blogs: ** ** Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://www.mirrorofjustice.blogs.com/ Law, Religion, and Ethics http://lawreligionethics.net/ ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton *Sent:* Wednesday, January 11, 2012 2:26 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Supreme Court sides with church on decision to fire employee on religious grounds ** ** Rick--I meant by clergy whatever the Court is saying is a minister I did not intend ordained clergy. Do we still disagree? ** ** Marci ** ** ** ** On Jan 11, 2012, at 2:16 PM, Rick Garnett wrote: Dear Marci, I think you are right about the second sentence, but I disagree with your second. The opinion seems clearly to reach beyond “clergy.” Best wishes, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://www.mirrorofjustice.blogs.com/ Law, Religion, and Ethics http://lawreligionethics.net/ *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton *Sent:* Wednesday, January 11, 2012 12:34 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Supreme Court sides with church on decision to fire employee on religious grounds The decision is much narrower than Joel's description. It does not cover all employees of religious organizations--only clergy. And it only involves claims involving discrimination against the religious organization, leaving open litigation from even clergy on contract and tort theories. * *** Marci On Jan 11, 2012, at 12:26 PM, Joel wrote: The Supreme Court has sided unanimously with a church sued for firing an employee on religious grounds, issuing an opinion on Wednesday that religious employers can keep the government out of hiring and firing decisions. In the case of Hosanna-Tabor v. EEOC, Cheryl Perich, a called teacher, argued that the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich., had discriminated against her under the Americans With Disabilities Act by refusing to reinstate her to her job after she took leave for narcolepsy. http://www.foxnews.com/politics/2012/01/11/supreme-court-sides-with-church-on-decision-to-fire-employee-on-religious/ Joel L. Sogol Attorney at Law 811 21st Ave. Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0971 email: jlsa...@wwisp.com website: www.joelsogol.com Ben Franklin observed that truth wins a fair fight - which is why we have evidence rules in U.S. courts. ___ To post, send message to
RE: Supreme Court sides with church on decision to fire employee on religious grounds
Tom, I have long since given up trying to predict how Supreme Court justices will decide future cases (or to assume that there will be logical consistency or even intellectual integrity in all opinions.) But Justice Roberts clearly and repeatedly emphasizes the title, status, and acknowledged role of minister or clergy as significant factors in reaching his decision in this case. Why are you so confident that all of this language in the opinion is superflous? I agree that Alito and Kagan's concurrence provides more support for including some lay teachers in the exception. But even they say What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities. The words important role and a leader arguably mean something different than some role and a participant. Finally, of course, there is the question of how the understanding of who qualifies for the ministerial exception relates to the question of what positions the government can fund in religious institutions. Can the government fund the salary of teachers who play an important role as an instrument of their church's religious message and as a leader in its worship activities? If the answer to that question is Yes and it is also true that such teachers are enough like clergy in their religious functions to be included in the ministerial exception, would it follow that government can also fund the salary of clergy? Is it constitutionally permissible for the government to refuse to fund teaching positions at a religious school which refuses to hire African-Americans, women, and the disabled as teachers? Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [tcb...@stthomas.edu] Sent: Wednesday, January 11, 2012 7:47 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan, I agree that the majority leaves open the issue of lay teachers. But since three justices take a broader approach to defining a minister, all you need for a majority in a later case is two more votes, and Roberts and Scalia seem reasonable prospects to me in a case that presents the issue. Thomas would defer heavily to the religious organization's characterization of an employee as a minister. And Alito and Kagan say that ordained or commissioned status isn't crucial, that the criterion is “positions of substantial religious importance”—including those “teaching and conveying the tenets of the faith to the next generation”--and that the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones. What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities. I can see many lay teachers in seriously religious schools satisfying such a test. Kagan’s agreement with that standard is quite significant, as is her joining the Alito concurrence overall. Tom - ___ 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.
RE: Hosanna-Tabor
What if the church board fires a minister and admits, prior to the filing of an action, that it was not for religious reasons but because he was disabled or because of his race or for some other reason that ordinarily would be impermissible. If the church states that there is no religious reason for the firing – if it says that the discrimination is not based on any religious tenet – does the Court’s holding protect the church? Perhaps the point is that a court simply can’t take cognizance of a religious organization’s reason for firing a minister, or involve itself in such a case, even if there is no dispute about the reason being nonreligious. But I’m not sure. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz Sent: Wednesday, January 11, 2012 5:58 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Hosanna-Tabor It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil interference with employment clergy and more on civil interference with selection (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 4:54 PM, Friedman, Howard M. howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote: I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability to decide religious questions (a.k.a. the hands-off principle, the no religious decisions principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that autonomy is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by ministers, the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- it was retaliation based on religious principle -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about disability to decide religious questions, but it has little force if one simply says, Look, the idea that religious groups get to decide who will play important spiritual roles without state interference is very old, and state interference in the selection of clergy is at the core of what the Establishment Clause meant to forbid. If she's a minister, the state can't second-guess that decision in an employment discrimination suit. Period. At least to me, the majority opinion reads like the
Re: Hosanna-Tabor
How is it that we as lawyers and law professors fell so deeply into thinking that *Smith* meant what it said? Or even what Scalia said it said in his opinion in *Hialeah*? Or even what Kennedy said it meant in Hialeah? Hosanna-Tabor is an easy case if one doesn't believe Scalia meant what he said in *Smith*. It is a case of the state intruding on the essential ministry operations and doctrinal understandings and application of those understandings of a religion. So I guess the Court is willing to allow the inquiry into doctrine and belief to proceed to some extent, probably using some sort of pretext or sincerity standard to limit the intrusion. Will there be many cases really? It seems to me that BFOQ and the minister exception will, in nearly all instances, be capable of relatively easy application, unclouded by *Smith* language. Steve -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) ___ 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.
Re: Hosanna-Tabor
It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil interference with employment clergy and more on civil interference with selection (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 4:54 PM, Friedman, Howard M. howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote: I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability to decide religious questions (a.k.a. the hands-off principle, the no religious decisions principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that autonomy is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by ministers, the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- it was retaliation based on religious principle -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about disability to decide religious questions, but it has little force if one simply says, Look, the idea that religious groups get to decide who will play important spiritual roles without state interference is very old, and state interference in the selection of clergy is at the core of what the Establishment Clause meant to forbid. If she's a minister, the state can't second-guess that decision in an employment discrimination suit. Period. At least to me, the majority opinion reads like the quote at the end of the last paragraph. It doesn't seem to hold out any possibility that some employment discrimination cases might be within the judiciary's competence to decide if only it could do so without getting into religious questions. One could perhaps reach the same result by saying Where it's a discrimination claim, religious questions will always be involved and thus the no-religious-decisions principle explains everything. Some panelists on Saturday appeared to express that view, and it might be correct. But it's striking to me that this argument is made only by Alito. The majority opinion seems to me closer in spirit to Rick's idea that maybe the hiring and firing of ministers is a matter of sphere sovereignty -- the state's authority to regulate here just runs out. I think this is also the approach Doug asked them to take, and it's pretty similar to what we used to call church autonomy back in the day. I understand the (good) reasons for some discomfort with the term,
RE: Supreme Court sides with church on decision to fire employee on religious grounds
It strikes me that the Texas Monthly conclusion -- that tax exemptions are equivalent to subsidies -- is quite persuasive. That's the rule the Court announced for religion-specific exemptions (Texas Monthly), for free speech cases (Taxation With Representation v. Regan), and for religious exemption cases (Bob Jones University). Why should this equivalence then be rejected as to religion-neutral programs? And given those cases, coupled with the constitutionality of religion-neutral charitable tax deductions, I would think that religion-neutral charitable tax vouchers should be equally constitutional. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 3:08 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds We disagree -- in part because I think it would be easy to draft a formally religion-neutral voucher that would be used primarily and overwhelmingly by church members to pay dues and in part because I think the Establishment Clause prohibits the government from taking over the financing of religion (even if it funds some secular institutions while doing so.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 2:15 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds I think that if the government decided to give a religion-neutral charitable donation voucher that congregants could give to their church, to the ACLU, to a private school (secular or religious), or anyone else, that would be just as constitutional as the religion-neutral charitable donation matching-funds-voucher that is provided by the charitable donation tax deduction. (I agree that a religion-only voucher would be unconstitutional, see Texas Monthly v. Bullock, but I assumed that we were talking about religion-neutral programs.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 2:07 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds No. I'm saying that government funding questions regarding religious institutions require a multi-factor analysis and the fact that the government funding is distributed through vouchers is only one factor to be considered in the analysis. Are you saying that because taxpayers receive charitable deductions for funds they donate to their house of worship and churches (and clergy) receive various tax exemptions that it would be constitutional for government to give vouchers to congregants that they could use to pay church dues and the salary of their clergy? Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 1:24 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan: Doesn't that return us to the perennial question of whether Witters was rightly decided, whether the GI Bill should have been unconstitutional, and whether the Court has been right in saying that tax exemptions are generally a form of subsidy? After all, under Witters, the GI Bill, and the charitable tax exemption, either government money or the benefits of deductibility are provided to, among other things, religious instruction, proselytizing, and worship. Are you indeed saying that the Establishment Clause prohibits this? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 1:13 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds As you know, Tom, I don't assign as much weight to the distinction between direct grants and vouchers as you, and the Court, do -- and my analysis of voucher programs is multi-factored. But for the purposes of this argument, let me point to two problems with the government paying the salary of the employees of a religious institution who play an important role as an instrument of her church's religious message and as a leader of its worship activities. First, government funding will be used for religious instruction, proselytizing and
RE: Supreme Court sides with church on decision to fire employee on religious grounds
1) It's hard to see how the Court's decision has thrown [laws] into limbo. The Court took pretty much the same view taken for years by many lower courts; whatever doubt the Court's decision casts on these laws had already been cast on them by lower court decisions. 2) I don't think the Court's decision about the scope of the First Amendment rights of churches to dismiss ministerial employees would necessarily affect the interpretation of statutory terms. New York courts are free to continue interpreting clergy providing ministerial services as they please, subject only to the requirement - which long predates Hosanna-Tabor - that courts may not unduly entangle themselves in religious decisions. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Samuel Krieger Sent: Thursday, January 12, 2012 4:35 PM To: 'Law Religion issues for Law Academics' Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds A whole host of laws are now thrown into limbo as a result of the decision - For example NY Workers Compensation Law exempts the following from the mandatory coverage provisions- The applicant is a nonprofit (under IRS rules) with NO compensated individuals providing services except for clergy; or is a religious, charitable or educational nonprofit (Section 501(c)(3) under the IRS tax code) with no compensated individuals providing services except for clergy providing ministerial services; and persons performing teaching or nonmanual labor. Quare - After the decision, has the definition of clergy been expanded . SAMUEL M. KRIEGER Krieger Prager LLP skrie...@kplawfirm.commailto:skrie...@kplawfirm.com Tel: (212) 363-2900 ___ 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.
RE: Hosanna-Tabor
While there is a lot of merit in what Eugene writes, it seems to me that he is identifying three arguments in support of the ministerial exemption: 1. It has strong historical roots. 2. There is a freedom of association dimension to it. 3. It is very circumscribed in its scope and involves far less judicial intrusion into executive and legislative decisions. All are valid points. But I'm not sure they adequately distinguish why this particular set of religious decisions gets constitutional protection while others do not. 1. Other religious exemptions have strong historical roots. 2. Many individual religious practices have an expressive dimension and communicate the beliefs and commitment of the believer. Is the right of expressive associations to choose their leaders more deserving of protection than the right of individuals and congregations to express their beliefs through religious worship and practice? And if the expressive associational dimension of religious groups choosing their leader is part of the foundation of this decision, one might argue that freedom of speech and association doctrine undermine the claim that organizations expressing a particular viewpoint (here, religious beliefs) should receive greater protection against government regulations than organizations expressing an alternative viewpoint (secular ideas). 3. One could draw other narrow zones protecting religious decisions and practice that limit judicial intrusion into legislative and executive authority. Let me be clear that I am not suggesting that the Court was incorrect in recognizing a ministerial exemption. (I think it was correct in doing so.) And it may be that the historical foundation for such an exemption is so strong that it can be distinguished from any traditionally recognized exemption for religious individuals or congregations. But I think there is more to this argument than the three very relevant points that Eugene identifies or that are captured by the terms physical acts and internal church governance. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, January 11, 2012 9:06 AM To: Law Religion issues for Law Academics Cc: Eric J Segall Subject: RE: Hosanna-Tabor I agree with Doug on this, and want to add one item: The Sherbert/Yoder regime put courts in the position of having to evaluate a vast range of laws -- antidiscrimination laws, animal cruelty laws, assisted suicide bans, child labor laws, compelled testimony laws, copyright laws, drug laws, tax laws, traffic laws, zoning laws, and more -- in lawsuits brought by anyone who could sincerely claim a religious objection to their application to him (a group that might start small for each law, but might well grow as the availability of exemptions led people, subconsciously or deliberately, to assert convenient religious beliefs). The Smith majority rebelled (I think correctly) against having federal courts deciding in each case whether the government interest was compelling enough and whether the law was really necessary to serve the interest, which is to say against having federal courts constantly second-guessing the legislature's moral and practical judgment behind a vas! t range of laws. (This is also, I think, why the Court has provided extremely modest protection against content-neutral restrictions on expressive conduct, both imposing in O'Brien a much more deferential test than strict scrutiny and then holding in Rumsfeld v. FAIR that the protection would in any event only apply to a narrow range of conduct that was expressive on its own.) Hosanna-Tabor puts courts in the position of constraining legislative judgment only as to a narrow range of conduct: church selection of ministers. Despite the Court's point that the right is not the same as the right to freedom of association, this zone of judicial control is already not far from the zone where judges have to protect expressive associations' rights to choose leaders and members. What's more, this is a zone where there has been a much more solid and consistent history of immunity from governmental control. And in any event, it's just substantively quite a narrow zone. So while the private interest involved in Smith and Hosanna-Tabor may be comparable -- or in some Smith cases even greater -- and the government interest may often be similar (indeed, Smith applies to antidiscrimination laws themselves), the magnitude of the judicial intrusion in Sherbert/Yoder is much greater than in Hosanna-Tabor. And that, I think, rightly makes a big difference. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, January 11, 2012 8:42 AM To: 'Eric J Segall'; 'Con
RE: Supreme Court sides with church on decision to fire employee on religious grounds
As you know, Tom, I don't assign as much weight to the distinction between direct grants and vouchers as you, and the Court, do -- and my analysis of voucher programs is multi-factored. But for the purposes of this argument, let me point to two problems with the government paying the salary of the employees of a religious institution who play an important role as an instrument of her church's religious message and as a leader of its worship activities. First, government funding will be used for religious instruction, proselytizing and worship -- which I believe the Establishment Clause prohibits. Second, and more importantly for the present discussion, the core of the Court's argument in Hosanna-Tabor is that government should not be involved in decisions that affect the faith and mission of the church. But the faith and mission of the church cannot be independent and autonomous from government if the church is dependent on government funding to pay the salaries of those who play an important role as an instrument of her church's religious message and as a leader of its worship activities. I don't think the issue should be resolved by permitting government to fund positions that fall within the ministerial exception if the religious institution does not discriminate on race, nationality, gender or disability, while allowing government to refuse to fund those same positions if discriminatory criteria control the religious institution's hiring decisions. That gives the government control over the religious institution's core religious hiring decisions -- exactly what the ministerial exception is intended to prohibit. I think that these positions, because of their status and function, should not be funded by government whether the religious institution exercises the full extent of the authority it has under the ministerial exception or not. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Thursday, January 12, 2012 7:28 AM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan, I'm not predicting two more justices, let alone with any certainty, or talking about all lay teachers. I was only making the point that three justices adopted a broader standard than the majority, and the fact that one of them was Kagan is notable and makes the road to additional votes significantly easier than otherwise. My sense, from oral argument among other things, was that Roberts and Scalia would be easier fifth votes than Kennedy to go further than these facts. On your second point, in many religious schools, at least some lay teachers have a central role, not just some role, in communicating the religious message, as Lemon and many other cases have emphasized. Finally, I agree that funding complicates things. I assume that government has authority to refuse to fund positions where discriminatory selection criteria operate (although, as you know, I think religious-belief selection criteria are a different case concerning religious organizations). I wouldn't turn that authority into carte blanche for funding restrictions. Would you say the mere fact that some lay teachers at a school would be classified within the ministerial exception would justify excluding all students at that school from participating in a true private choice voucher program, or (at the college level) from receiving state scholarships? Would you say this even if the school had not been shown to discriminate but merely referred to such teachers as ministers? - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com ___ 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.
RE: Supreme Court sides with church on decision to fire employee on religious grounds
We disagree -- in part because I think it would be easy to draft a formally religion-neutral voucher that would be used primarily and overwhelmingly by church members to pay dues and in part because I think the Establishment Clause prohibits the government from taking over the financing of religion (even if it funds some secular institutions while doing so.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 2:15 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds I think that if the government decided to give a religion-neutral charitable donation voucher that congregants could give to their church, to the ACLU, to a private school (secular or religious), or anyone else, that would be just as constitutional as the religion-neutral charitable donation matching-funds-voucher that is provided by the charitable donation tax deduction. (I agree that a religion-only voucher would be unconstitutional, see Texas Monthly v. Bullock, but I assumed that we were talking about religion-neutral programs.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 2:07 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds No. I'm saying that government funding questions regarding religious institutions require a multi-factor analysis and the fact that the government funding is distributed through vouchers is only one factor to be considered in the analysis. Are you saying that because taxpayers receive charitable deductions for funds they donate to their house of worship and churches (and clergy) receive various tax exemptions that it would be constitutional for government to give vouchers to congregants that they could use to pay church dues and the salary of their clergy? Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 1:24 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan: Doesn't that return us to the perennial question of whether Witters was rightly decided, whether the GI Bill should have been unconstitutional, and whether the Court has been right in saying that tax exemptions are generally a form of subsidy? After all, under Witters, the GI Bill, and the charitable tax exemption, either government money or the benefits of deductibility are provided to, among other things, religious instruction, proselytizing, and worship. Are you indeed saying that the Establishment Clause prohibits this? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 1:13 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds As you know, Tom, I don't assign as much weight to the distinction between direct grants and vouchers as you, and the Court, do -- and my analysis of voucher programs is multi-factored. But for the purposes of this argument, let me point to two problems with the government paying the salary of the employees of a religious institution who play an important role as an instrument of her church's religious message and as a leader of its worship activities. First, government funding will be used for religious instruction, proselytizing and worship -- which I believe the Establishment Clause prohibits. Second, and more importantly for the present discussion, the core of the Court's argument in Hosanna-Tabor is that government should not be involved in decisions that affect the faith and mission of the church. But the faith and mission of the church cannot be independent and autonomous from government if the church is dependent on government funding to pay the salaries of those who play an important role as an instrument of her church's religious message and as a leader of its worship activities. I don't think the issue should be resolved by permitting government to fund positions that fall within the ministerial exception if the religious institution does not discriminate on race, nationality, gender or disability, while allowing government to refuse to fund those same positions if discriminatory criteria control the religious institution's hiring decisions. That gives the
RE: Supreme Court sides with church on decision to fire employee on religious grounds
Alan -- I'd be interested to know how one might design such a formally religion-neutral voucher that would be used primarily and overwhelmingly by church members to make contributions to their churches. It doesn't seem that easy to me; perhaps you could explain to the group how one would design such a program to target donations to churches. As an aside, it's not really right (in the vast majority of cases) to think of church attendees paying dues as opposed to making donations. See, e.g., this Freakonomics article on dues vs. donations: http://www.freakonomics.com/2010/10/19/churches-versus-synagogues-voluntary-donations-versus-dues/ My understanding is that at most Christian church services, donations are made by a pass-the-plate method, there is often some attempt to anonymize who has done the giving, and anyone in attendance may give, not necessarily just members. Don't know if that affects the analysis at all, but dues is not the right word. Eric From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein [aebrownst...@ucdavis.edu] Sent: Thursday, January 12, 2012 6:07 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds We disagree -- in part because I think it would be easy to draft a formally religion-neutral voucher that would be used primarily and overwhelmingly by church members to pay dues and in part because I think the Establishment Clause prohibits the government from taking over the financing of religion (even if it funds some secular institutions while doing so.) -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 2:15 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds I think that if the government decided to give a religion-neutral charitable donation voucher that congregants could give to their church, to the ACLU, to a private school (secular or religious), or anyone else, that would be just as constitutional as the religion-neutral charitable donation matching-funds-voucher that is provided by the charitable donation tax deduction. (I agree that a religion-only voucher would be unconstitutional, see Texas Monthly v. Bullock, but I assumed that we were talking about religion-neutral programs.) Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 2:07 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds No. I'm saying that government funding questions regarding religious institutions require a multi-factor analysis and the fact that the government funding is distributed through vouchers is only one factor to be considered in the analysis. Are you saying that because taxpayers receive charitable deductions for funds they donate to their house of worship and churches (and clergy) receive various tax exemptions that it would be constitutional for government to give vouchers to congregants that they could use to pay church dues and the salary of their clergy? Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2012 1:24 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan: Doesn't that return us to the perennial question of whether Witters was rightly decided, whether the GI Bill should have been unconstitutional, and whether the Court has been right in saying that tax exemptions are generally a form of subsidy? After all, under Witters, the GI Bill, and the charitable tax exemption, either government money or the benefits of deductibility are provided to, among other things, religious instruction, proselytizing, and worship. Are you indeed saying that the Establishment Clause prohibits this? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 1:13 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds As you know, Tom, I don't assign as much weight to the distinction between direct grants and vouchers as you, and the Court, do -- and my analysis of voucher programs is multi-factored. But for the purposes of this argument, let me point to
RE: Supreme Court sides with church on decision to fire employee on religious grounds
Alan: Doesn't that return us to the perennial question of whether Witters was rightly decided, whether the GI Bill should have been unconstitutional, and whether the Court has been right in saying that tax exemptions are generally a form of subsidy? After all, under Witters, the GI Bill, and the charitable tax exemption, either government money or the benefits of deductibility are provided to, among other things, religious instruction, proselytizing, and worship. Are you indeed saying that the Establishment Clause prohibits this? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 1:13 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds As you know, Tom, I don't assign as much weight to the distinction between direct grants and vouchers as you, and the Court, do -- and my analysis of voucher programs is multi-factored. But for the purposes of this argument, let me point to two problems with the government paying the salary of the employees of a religious institution who play an important role as an instrument of her church's religious message and as a leader of its worship activities. First, government funding will be used for religious instruction, proselytizing and worship -- which I believe the Establishment Clause prohibits. Second, and more importantly for the present discussion, the core of the Court's argument in Hosanna-Tabor is that government should not be involved in decisions that affect the faith and mission of the church. But the faith and mission of the church cannot be independent and autonomous from government if the church is dependent on government funding to pay the salaries of those who play an important role as an instrument of her church's religious message and as a leader of its worship activities. I don't think the issue should be resolved by permitting government to fund positions that fall within the ministerial exception if the religious institution does not discriminate on race, nationality, gender or disability, while allowing government to refuse to fund those same positions if discriminatory criteria control the religious institution's hiring decisions. That gives the government control over the religious institution's core religious hiring decisions -- exactly what the ministerial exception is intended to prohibit. I think that these positions, because of their status and function, should not be funded by government whether the religious institution exercises the full extent of the authority it has under the ministerial exception or not. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Thursday, January 12, 2012 7:28 AM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan, I'm not predicting two more justices, let alone with any certainty, or talking about all lay teachers. I was only making the point that three justices adopted a broader standard than the majority, and the fact that one of them was Kagan is notable and makes the road to additional votes significantly easier than otherwise. My sense, from oral argument among other things, was that Roberts and Scalia would be easier fifth votes than Kennedy to go further than these facts. On your second point, in many religious schools, at least some lay teachers have a central role, not just some role, in communicating the religious message, as Lemon and many other cases have emphasized. Finally, I agree that funding complicates things. I assume that government has authority to refuse to fund positions where discriminatory selection criteria operate (although, as you know, I think religious-belief selection criteria are a different case concerning religious organizations). I wouldn't turn that authority into carte blanche for funding restrictions. Would you say the mere fact that some lay teachers at a school would be classified within the ministerial exception would justify excluding all students at that school from participating in a true private choice voucher program, or (at the college level) from receiving state scholarships? Would you say this even if the school had not been shown to discriminate but merely referred to such teachers as ministers? - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog:
Re: Hosanna-Tabor
People could take an absolutist view of two realms in the Founders' time; they obviously cannot any more, with the enormous expansion of government. My commitment to religious liberty, including the ministerial exception, is based in a deep commitment to civil liberties more generally. There should be no inconsistency in protecting the rights of believers in Hosanna-Tabor and protecting the rights of nonbeliever with respect to the Pledge. Both are about various ways in which government interferes with the religious beliefs and practices of individuals and groups. Of course imposing a minister on an unwilling congregation is a far more serious intrusion than asking (but not requiring) school children to give a brief and generic affirmation of faith. But such judgments about the weight of violations do not go to the basic point. My commitment is to liberty for all. On Thu, 12 Jan 2012 17:48:47 -0500 (EST) ledew...@duq.edu wrote: I would like to return to the panel at AALS that John Taylor mentioned. Two of the panelists arguing in favor of the ministerial exception, Chris Lund and Douglas Laycock, would not be considered pro-religion in the conventional senseboth believe for example that the Pledge of Allegiance is in principle unconstitutional. Their support of the ministerial exception could not really be based on history or the need for an unfettered religious presence in society. So, upon what was their support ultimately basedwhat underlying worldview was being urged? Although only mentioned once on the panel, I think the worldview at stake was the two realms understandingthat the State and the Church operate in separate domains. But there are problems with this view. First, we as a society do not really believe it. The Kings criminal law now reaches into the churches, fortunately, and a capitalist society will always ensure that ministers contracts are honored by churches, in court if necessary (as the Court in Hosanna-Tabor predictably reserved). But neither do religious believers accept the two realms. For separate realms can also mean marginalization of religion into a private space. The next time believers want a national motto with the word God in it, the objection will be raised that State and Church are indeed separate, as the ministerial exception seems to imply. The basis of the ministerial exception has to be something quite differentthat it is precisely because churches do not operate in a separate realm that the ministerial exception stands for a limit on the omnipotence of the State in any of its activities (and this has been a defense of the symbolism of one Nation under God as well). Of course if this is the case, then in principle the ministerial exception could be available to groups that are not now considered religious and it suggests that Smith was wrongly decided since the Free Exercise Clause also stands for the proposition that the government is not omnipotent even in its legitimate activities. Bruce Ledewitz Professor of Law Duquesne Law School ___ 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. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
Re: Hosanna-Tabor
Does the line of cases that allow sexual harassment claims for damages by clergy against their religious employers (e.g., Bollard v. Cal. Province of Society of Jesus, 196 F. 3d 940 (9th Cir, 1999)) survive Hosanna-Tabor? Is that just another employment discrimination suit, or is it more like an action by [an] employee[] alleging . . . tortious conduct, of the sort left open by the Hosanna-Tabor opinion? On Wed, Jan 11, 2012 at 11:42 AM, Douglas Laycock dlayc...@virginia.eduwrote: Is anyone convinced by the Court's distinction of Smith? Well actually, all nine Justices were convinced, all twelve federal circuits have been convinced, and twelve state supreme courts have been convinced, with none going the other way. Physical acts is not the best label for the scope of Smith, but the basic distinction between internal church governance and other matters goes all the way back to Locke. It is embedded in a line of Supreme Court cases that long pre-date Sherbert and Yoder and that peacefully co-existed with Reynolds v. United States (a case refusing religious exemptions). Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Eric J Segall Sent: Wednesday, January 11, 2012 10:40 AM To: Con Law Prof list Subject: RE: Hosanna-Tabor II This is the sum total, after a quick read, of what the Court said about Smith: But a church's selection of its ministers is unlike an individual's ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government's regulation ofphysical acts from its lend[ing] its power to one or the other side in controversies over religious authority or dogma). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit. Physical acts, v. an internal church decision. Is anyone convinced by this? From: Eric J Segall Sent: Wednesday, January 11, 2012 10:34 AM To: Con Law Prof list Subject: Hosanna-Tabor So Title VII, a generally applicable law that was not passed to hurt or affect religion (and in fact protects religion), does not apply to religious groups. I am not an expert in the Free Exercise Area, but how can Scalia join this opinion? Am I missing something? Thanks, Eric ___ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 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.
Re: Hosanna-Tabor-- apologies
My apologies for inadvertently sending a private message to the group. So much sending emails from my new IPhone... Marci A. Hamilton 36 Timber Knoll Drive Washington Crossing, PA 18977 215-353-8984 Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 @Marci_Hamilton _www.facebook.com/professormarciahamilton_ (http://www.facebook.com/professormarciahamilton) In a message dated 1/12/2012 11:35:09 A.M. Eastern Standard Time, mae.kuykend...@law.msu.edu writes: I wonder if there are any data on employment by religious institutions, classified by rough job category. The nature of the problem relates to the scope of persons affected, as Ted explains. It could be large, it could be small. There must be a range of roles with clear connections to propagating the faith/doctrine and others that could not plausibly be so classified. Is there any statistical base to inform a judgment about scope? If we assume almost no one would suggest ministers are not appropriately exempt from state regulation (other than for bad acts that implicate criminal misconduct, and even there churches have been aggressive about seeking to avoid state jurisdiction), then the question becomes how many people have employment with religious institutions in ordinary jobs that might be re-characterized as ministerial by a clever church lawyer and how many (janitors?) might be, incontestably, outside that category. But suppose a church claims that janitors are trained in the proper godly approach to cleaning and are responsible for distributing appropriate literature throughout the building and serving as an example to their brothers and sisters in the flock? Might they be ministers? mk Theodore Ruger tru...@law.upenn.edu 1/12/2012 11:15 AM Coming late to this thread with some (too-long) thoughts about how this may play out in future litigation . . . I share Mike Dorf’s concern about the vagueness of the Court’s standard under which employees of religious organizations can now be classified as “ ministers” for the purposes of the exception, particularly given the unwillingness of lower court judges to seriously examine the claims about religious doctrine that churches make during this kind of litigation. (Speaking of which, was there any record evidence to support the Missouri Synod’s claim that as a matter of faith it “prefers to resolve disputes among Christians internally”, or did the district court accept it without inquiry? Can every religion invoke, ipse dixit, such a “spiritual” preference for internal dispute resolution, simply by virtue of being a religious group? What about those Catholic archdioceses whose bishops in 2004 announced often in the mainstream media that John Kerry was ineligible to receive communion because of his pro-choice views – in subsequent employment litigation should their schools be able to assert an absolute and unexamined spiritual preference for keeping disputes among Catholics private?) I suspect that federal courts will continue to be extremely deferential in scrutinizing such claims in litigation, which in turn creates strong incentives for religious groups and their attorneys to be extremely capacious after the fact about who they characterize as “ministerial” whenever an employment dispute arises. And such broad ex post characterizations will have the effect of substantially curtailing the employment rights of large numbers of employees who may not even know they are so classified, and certainly may not know about the effect of the classification on their workplace rights. This concern leads me to imagine two possible ex ante measures – one a reporting rule and one a disclosure requirement – that in my view would be both constitutionally permissible and sound policy, though I’m sure some will disagree on one or both counts. First, most of these religious organizations already file 501(c)(3) returns with the IRS each year – why shouldn’t the IRS require, among the many other disclosures on the return, a schedule of the organization's employees each year classified as “lay” or “ ministerial.” Minimally intrusive, serves a clear secular purpose in guiding the EEOC’s investigatory behavior should an employee in either category file a complaint, and would discourage churches’ ex post expansions of the category during litigation. More substantial would be a disclosure requirement imposed by federal or state law that would require religious organizations to provide all persons hired or reclassified as “ministerial” with prior notice that such status adversely effects their rights to sue as employees under current law. Such disclosure rules are commonly applied to non-religious employers (for instance when someone is hired under a contract that mandates arbitration to resolve
RE: Supreme Court sides with church on decision to fire employee on religious grounds
Perhaps a comparison to the interpretation of minister of the gospel in Internal Revenue Code section 107, which provides a gross income exclusion for the rental value of housing provided to ministers of the gospel (the parsonage exclusion) is helpful. Perhaps it raises more questions. Perhaps it is or is not (or will turn out to be or not to be) coterminous with the definition for other purposes. It is relevant to Alan's question in the sense that a gross income exclusion (like a tax deduction or credit) is equivalent in many ways to funding. From my BNA Tax Management, Inc., Gross Income: Overview and Conceptual Aspects, two paragraphs (without footnotes) addressing the scope of the exclusion in terms of who qualifies: Although the language of §107 refers to ministers of the gospel, the exclusion applies to persons who are ordained, commissioned, or licensed to perform substantially all the religious functions within the practice of the denomination. Thus, the exclusion is available for rabbis and cantors of the Jewish faith, ordained deacons, ordained gospel ministers who administer sacraments, preach, and conduct worship services, and unordained but commissioned or licensed members of a religious denomination who perform substantially all of the religious functions within the practice of the denomination. But the exclusion is not available to unordained, uncommissioned and unlicensed persons who perform nonreligious services for a church. The §107 exclusion also applies to retired ministers of the gospel. Payments to surviving spouses, however, are not covered by the exclusion. Also not covered are payments to employees of religious organizations who are not ordained, commissioned, or licensed ministers and who do not perform any religious functions. No exclusion is available to a taxpayer whose duties as a religious functionary did not require performance by a person with ministerial authority and that were more organizational than religious in nature. Jim Maule -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Thursday, January 12, 2012 1:01 AM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Tom, I have long since given up trying to predict how Supreme Court justices will decide future cases (or to assume that there will be logical consistency or even intellectual integrity in all opinions.) But Justice Roberts clearly and repeatedly emphasizes the title, status, and acknowledged role of minister or clergy as significant factors in reaching his decision in this case. Why are you so confident that all of this language in the opinion is superflous? I agree that Alito and Kagan's concurrence provides more support for including some lay teachers in the exception. But even they say What matters is that respondent played an important role as an instrument of her church's religious message and as a leader of its worship activities. The words important role and a leader arguably mean something different than some role and a participant. Finally, of course, there is the question of how the understanding of who qualifies for the ministerial exception relates to the question of what positions the government can fund in religious institutions. Can the government fund the salary of teachers who play an important role as an instrument of their church's religious message and as a leader in its worship activities? If the answer to that question is Yes and it is also true that such teachers are enough like clergy in their religious functions to be included in the ministerial exception, would it follow that government can also fund the salary of clergy? Is it constitutionally permissible for the government to refuse to fund teaching positions at a religious school which refuses to hire African-Americans, women, and the disabled as teachers? Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [tcb...@stthomas.edu] Sent: Wednesday, January 11, 2012 7:47 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Alan, I agree that the majority leaves open the issue of lay teachers. But since three justices take a broader approach to defining a minister, all you need for a majority in a later case is two more votes, and Roberts and Scalia seem reasonable prospects to me in a case that presents the issue. Thomas would defer heavily to the religious organization's characterization of an employee as a minister. And Alito and Kagan say that ordained or commissioned status isn't crucial, that the criterion is positions of substantial religious importance-including those teaching
Re: Hosanna-Tabor
Did you watch Sat night live last week w Charles Barkley? He did this hilarious piece about a supposed show called white people problems. When I hear these guys talking about the needs of the churches to be shielded from liability for discrimination, for some reason that skit comes to mind. On Jan 11, 2012, at 10:07 PM, David Cruz dc...@law.usc.edu wrote: I agree. :-) And great to have seen you in DC! David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 6:49 PM, Marci Hamilton hamilto...@aol.com wrote: I agree with David, though I would characterize the Court's paradigmatic concern as being about the right to choose selection criteria. Catholics and Orthodox Jews plainly have the right to favor men over women and Hosanna Tabor Lutherans have the right to choose mediators instead of litigators. I am not persuaded by Howard's characterization of some kind of institutional autonomy. The unanimous decision is too carefully parsed for that to be a touchstone for future interpretation. The way the decision is constructed and explained, there are many open questions and every case will be fact specific. Except we know for sure that there is no jurisdictional bar so cases will have to be scrutinized by the courts and subject to judicial interpretation. Marci On Jan 11, 2012, at 8:58 PM, David Cruz dc...@law.usc.edu wrote: It seems to me an easy distinction between the case of the undocumented minister posited by Howard and today's case is that if the government deports someone for being unlawfully present, that is in no way predicated upon a decision by a church to select that person as a minister; the church's decision is simply irrelevant to the government's legal claim for deportation. Wrongful termination suits, grounded in tort law or antidiscrimination law, however, do depend upon a church's reasons for firing someone, which is what I take the Court's opinion to be getting at. Similar reasoning would apply to questions of ministers' arrestability. The emphasis, it seems to me, should be less on civil interference with employment clergy and more on civil interference with selection (or de-selection) of clergy. David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jan 11, 2012, at 4:54 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: I think that the decision has much broader implications for church autonomy. I have just developed this argument in some detail in a posting on Religion Clause, for those who may be interested in reading it. http://religionclause.blogspot.com/2012/01/analysis-some-thoughts-on-church.html I welcome any reactions. Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of John Taylor Sent: Wed 1/11/2012 3:26 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor There was a very good panel on the case at AALS Saturday morning (organized by Chris Lund and featuring Doug, Rick, Bob Tuttle, Caroline Corbin, and Leslie Griffin) and it included, among other things, an exchange between Rick Garnett and Bob Tuttle on the rationale for the ministerial exception. While both acknowledged that they were overstating their differences, the contrast (as I understood it) was one between viewing the ministerial exception as completely (or almost completely) about the judicial disability to decide religious questions (a.k.a. the hands-off principle, the no religious decisions principle per Eugene) and viewing it as protecting certain kinds of decisions made by religious groups whether religious questions have to be decided or not. (Maybe I've got that all wrong, and if so my apologies to Rick and Bob.) While I agree that autonomy is a loaded word that the majority did not use and I agree that this case doesn't and isn't meant to reach beyond employment discrimination claims by ministers, the second view does seem to me potentially a bit broader than the first. For example, Caroline Corbin and Leslie Griffin suggested at the panel that since this was a retaliation case, all the court really had to decide was whether there had been retaliation and this was not a religious question. (Their argument, I think, was that the church's response -- it was retaliation based on religious principle -- is irrelevant unless there's a religious exemption from the retaliation provisions in the ABA. Since Smith forecloses the latter argument, they suggested, you could decide the case without getting beyond the fact of retaliation, which was essentially admitted by the church.) That argument may have some force if one thinks that the ministerial exception is entirely about disability to decide religious
RE: Hosanna-Tabor
While there is a lot of merit in what Eugene writes, it seems to me that he is identifying three arguments in support of the ministerial exemption: 1. It has strong historical roots. 2. There is a freedom of association dimension to it. 3. It is very circumscribed in its scope and involves far less judicial intrusion into executive and legislative decisions. All are valid points. But I'm not sure they adequately distinguish why this particular set of religious decisions gets constitutional protection while others do not. 1. Other religious exemptions have strong historical roots. 2. Many individual religious practices have an expressive dimension and communicate the beliefs and commitment of the believer. Is the right of expressive associations to choose their leaders more deserving of protection than the right of individuals and congregations to express their beliefs through religious worship and practice? And if the expressive associational dimension of religious groups choosing their leader is part of the foundation of this decision, one might argue that freedom of speech and association doctrine undermine the claim that organizations expressing a particular viewpoint (here, religious beliefs) should receive greater protection against government regulations than organizations expressing an alternative viewpoint (secular ideas). 3. One could draw other narrow zones protecting religious decisions and practice that limit judicial intrusion into legislative and executive authority. Let me be clear that I am not suggesting that the Court was incorrect in recognizing a ministerial exemption. (I think it was correct in doing so.) And it may be that the historical foundation for such an exemption is so strong that it can be distinguished from any traditionally recognized exemption for religious individuals or congregations. But I think there is more to this argument than the three very relevant points that Eugene identifies or that are captured by the terms physical acts and internal church governance. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, January 11, 2012 9:06 AM To: Law Religion issues for Law Academics Cc: Eric J Segall Subject: RE: Hosanna-Tabor I agree with Doug on this, and want to add one item: The Sherbert/Yoder regime put courts in the position of having to evaluate a vast range of laws -- antidiscrimination laws, animal cruelty laws, assisted suicide bans, child labor laws, compelled testimony laws, copyright laws, drug laws, tax laws, traffic laws, zoning laws, and more -- in lawsuits brought by anyone who could sincerely claim a religious objection to their application to him (a group that might start small for each law, but might well grow as the availability of exemptions led people, subconsciously or deliberately, to assert convenient religious beliefs). The Smith majority rebelled (I think correctly) against having federal courts deciding in each case whether the government interest was compelling enough and whether the law was really necessary to serve the interest, which is to say against having federal courts constantly second-guessing the legislature's moral and practical judgment behind a vas! t range of laws. (This is also, I think, why the Court has provided extremely modest protection against content-neutral restrictions on expressive conduct, both imposing in O'Brien a much more deferential test than strict scrutiny and then holding in Rumsfeld v. FAIR that the protection would in any event only apply to a narrow range of conduct that was expressive on its own.) Hosanna-Tabor puts courts in the position of constraining legislative judgment only as to a narrow range of conduct: church selection of ministers. Despite the Court's point that the right is not the same as the right to freedom of association, this zone of judicial control is already not far from the zone where judges have to protect expressive associations' rights to choose leaders and members. What's more, this is a zone where there has been a much more solid and consistent history of immunity from governmental control. And in any event, it's just substantively quite a narrow zone. So while the private interest involved in Smith and Hosanna-Tabor may be comparable -- or in some Smith cases even greater -- and the government interest may often be similar (indeed, Smith applies to antidiscrimination laws themselves), the magnitude of the judicial intrusion in Sherbert/Yoder is much greater than in Hosanna-Tabor. And that, I think, rightly makes a big difference. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
