RE: Hosanna-Tabor
Dear Marci, With all due respect, and conceding that the opinion carefully avoids deciding every question that might arise, I think it is not consistent with the opinion's reasoning -- and its emphasis on history, and the Kedroff etc. cases -- to limit it to selection-criteria cases.For example: Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers. And: the Religion Clauses ensured that thenew Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government fromappointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own. And: We agree that there is such a ministerial exception. The members of a religious group put their faith in the handsof their ministers. Requiring a church to accept or retainan unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governanceof the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right toshape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. The decision -- I think clearly -- is focused on the violation of religious freedom that is done by government interference in a religious community's decision about a particular individual[] minister, and not simply with the eligibility criteria that a religious tradition employs for, say, ordination. I realize, of course, that we are lawyers, and that many of us litigate cases that give us a stake in urging courts to interpret this (and other) decisions either narrowly or broadly. In my view, though, the reading of the case that is most faithful to the rationale provided by the Court for the ministerial exception is broader than the one you suggest. (Indeed, I think the decision has to be read -- notwithstanding the emphasis placed, in response to the 6th Circuit, on the fact that Ms. Perich had something like an ordained position -- as applying to lay teachers in a religious school that holds itself out as providing an integrated education, one that incorporates formation in the faith.) Best wishes, 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 Marci Hamilton [hamilto...@aol.com] Sent: Wednesday, January 11, 2012 9:45 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: 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.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,
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 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. ___ 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
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 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 ___ 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
Re: Hosanna-Tabor
I assumed that the reference to tortious conduct left open cases like Bollard. This is another important aspect of the Court refusing to make the ministerial exception, whatever its scope, a jurisdictional bar. Marci On Jan 12, 2012, at 3:38 PM, Ira Lupu wrote: 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.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. -- 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. ___ 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
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.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
It seems to me that Justice Scalia not only meant what he said in Smith, but signed on in Hosanna-Tabor to an opinion that followed what Justice Scalia said. Scalia in Smith: The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections [I]t is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns. Cf. Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984)http://scholar.google.com/scholar_case?case=6786088316489842364q=employment+division+v.+smithhl=enas_sdt=2,5 (An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State [if] a correlative freedom to engage in group effort toward those ends were not also guaranteed). Hosanna-Tabor: Applying the protection of the First Amendment to roles of religious leadership, worship, ritual, and expression focuses on the objective functions that are important for the autonomy of any religious group, regardless of its beliefs. As we have recognized in a similar context,[f]orcing a group to accept certain members may impair [its ability] to express those views, and only those views, that it intends to express. Boy Scouts of America v. Dale, 530 U. S. 640, 648 (2000). That principle applies with special force with respect to religious groups, whose very existence is dedicated to the collective expression and propagation of shared religious ideals. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 882 (1990) (noting that the constitutional interest in freedom of association may be reinforced by Free Exercise Clause concerns). As the Court notes, the First Amendment gives special solicitude to the rights of religious organizations, ante, at 14, but our expressive-association cases are nevertheless useful in pointing out what those essential rights are. Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Thursday, January 12, 2012 12:53 PM Cc: Law Religion issues for Law Academics; Con Law Prof list Subject: 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
The ministerial exception raises very deep questions about the nature of religion and its relation to everything else. Must it rest on the theory of two realms? Doug Laycock's reference to the child in school illustrates these questions. If the word God were removed from the Pledge, the child would still have the right to refuse to say the Pledge, but no one would claim that the rest of the class cannot recite it or that the student could not be invited to recite. Whatever the problem of the current Pledge is, it does not seem to me to be a matter simply of the rights of the child. It must have to do with the proper role of government. On 1/12/2012 10:09 PM, Douglas Laycock wrote: 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 sense—both 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 based—what underlying worldview was being urged? Although only mentioned once on the panel, I think the worldview at stake was the “two realms” understanding—that 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 King’s 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 different—that 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
I have no doubt whatsoever that Doug is sincere when he talks about his commitment to civil liberties more generally, but Hosanna-Tabor is the clearest case to date showing that religious liberty is a zero sum game. For increases in the rights of religious organizations, there are concomitant losses for the victims of the organizations' acts. The victims of disability, alienage, race, and gender discrimination are now likely incapable of vindicating their civil rights if they are clergy, or ministers, or according to some on our list, lay teachers in parochial schools. That is a large quantum loss of civil rights on any scale. I suppose those taking Doug's view believe that the loss is justified. Justification, however, does not obviate the fact of the loss. I can assure you that Petruska, Perich, and Rweyemamu do not view this decision as a vindication for civil rights. With respect to Smith, given the Court's own statements about Smith in Hosanna-Tabor and O Centro, it is entrenched at the Court. Marci On Jan 12, 2012, at 10:09 PM, Douglas Laycock wrote: 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 sense—both 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 based—what underlying worldview was being urged? Although only mentioned once on the panel, I think the worldview at stake was the “two realms” understanding—that 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 King’s 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 different—that 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,
RE: Hosanna-Tabor
Most constitutionally protected liberties are a zero sum game in Marci's sense. They impose a cost on the general public or particular third parties by preventing laws that often protect or benefit people from being fully implemented. There is no free lunch and rights are expensive political goods. But Marci us clearly correct that their is a cost to the ministerial exception and the broader it is defined the greater that cost will be. Moreover, their is arguably a constitutional check on an excessively broad understanding of the exception. Several Establishment Clause cases make it clear that religious accommodations that impose unacceptably large burdens on nonbeneficiaries are subject to challenge. That concern should operate in tension with the Religion Clause concerns supporting the exception. Reasonable people may disagree on where that line should be drawn and how that balance should be struck. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marci Hamilton [hamilto...@aol.com] Sent: Friday, January 13, 2012 6:52 AM To: Law Religion issues for Law Academics Subject: Re: Hosanna-Tabor I have no doubt whatsoever that Doug is sincere when he talks about his commitment to civil liberties more generally, but Hosanna-Tabor is the clearest case to date showing that religious liberty is a zero sum game. For increases in the rights of religious organizations, there are concomitant losses for the victims of the organizations' acts. The victims of disability, alienage, race, and gender discrimination are now likely incapable of vindicating their civil rights if they are clergy, or ministers, or according to some on our list, lay teachers in parochial schools. That is a large quantum loss of civil rights on any scale. I suppose those taking Doug's view believe that the loss is justified. Justification, however, does not obviate the fact of the loss. I can assure you that Petruska, Perich, and Rweyemamu do not view this decision as a vindication for civil rights. With respect to Smith, given the Court's own statements about Smith in Hosanna-Tabor and O Centro, it is entrenched at the Court. Marci ___ 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
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 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 ___ 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
Well, for one thing, it sounds a little like the government's position that the Court should balance the State's interest in each case rather than apply an exception as such at all. Conversely, the Church might say that whether the nation is acting under God is a matter that will have this-worldly consequences and should not be thought of as religious at all. (Compare the cartoon in which Pharaoh accuses Moses of mixing Church and State because slavery is a matter of economics). On 1/13/2012 9:32 AM, John Taylor wrote: Maybe my thinking about this is simpler than it ought to be, but I would have thought: 1. Everyone agrees that as a historical matter, the idea that church and state are separate or have different realms or spheres or jurisdictions is important and influential. 2. Everyone agrees that these realms or spheres can't be totally separate. That was always true, and (as Doug points out) it's more obviously true in the modern world where government has such a large role. 3. So rather than picturing two separate spheres, we might picture two intersecting circles with an overlap as in a Venn diagram. (Crude, I know.) 4. Even with that qualification, the idea remains that despite the overlap, some things are just the church's business and definitely not the state's business. I think for many supporters of the ministerial exception, the basic thought is that certain questions of internal church governance are for the church alone. If that's the thought, it makes sense to say Hosanna-Tabor is right but sex abuse cases, etc. would be a different story where the state's interest is much stronger. On the flip side, the thought would be that the inclusion of God in the Pledge of Allegiance is unconstitutional because the government shouldn't be in the business of declaring religious truth any more than it should be in the business of telling religious groups who their leaders should be. I think that is more or less what Doug and Chris would say, or at least is part of what they would say, about why one can be pro-ministerial exception but have doubts about under God in the Pledge. Looked at from that perspective, I don't see a lot of tension but I may be missing Bruce's point. John Taylor Professor and Associate Dean for Academic Affairs WVU College of Law Professor Ledewitz ledew...@duq.edu 1/13/2012 8:42 AM The ministerial exception raises very deep questions about the nature of religion and its relation to everything else. Must it rest on the theory of two realms? Doug Laycock's reference to the child in school illustrates these questions. If the word God were removed from the Pledge, the child would still have the right to refuse to say the Pledge, but no one would claim that the rest of the class cannot recite it or that the student could not be invited to recite. Whatever the problem of the current Pledge is, it does not seem to me to be a matter simply of the rights of the child. It must have to do with the proper role of government. On 1/12/2012 10:09 PM, Douglas Laycock wrote: 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 sense—both 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 based—what underlying worldview was being urged? Although only mentioned once on the panel, I think the worldview at stake was the “two realms” understanding—that 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 King’s criminal law now reaches into the churches, fortunately, and a capitalist society will
RE: Hosanna-Tabor
Dear Bruce, As you say, these are deep and interesting questions. For what it's worth, I don't think the only or best alternative to a warranted for prudential reasons carve-out from the state's otherwise applicable authority view of the ministerial exception is an absolutist two realms model. I *do* believe that a whole lot of our history is the story of the working out of, evolution of, wrestling with, and attacks on the Gelasian two there are description, but part of that story is (obviously) the development of nation-states and constitutional liberal democracies. As I see it (I think!), my colleague Bob Rodes' use of the term nexus to describe church-state relations is helpful, and maybe describes things both more accurately and more attractively than, say, two [temporal] realms. In any event, I think we can (and should) say that the older, not entirely supplanted model lives on in the idea that political authority is limited in (at least) two ways: constitutionally (through structural features with which we are familiar and also through Bill-of-Rights-type explicit constraints) *and* by the (even now) reality that there are other legitimate authorities and societies, besides political authorities and societies. This is not absolutism -- it does not absolutize either the liberal state or the two realms image -- and it's not even autonomy in a full-blown sense, but it is pluralism. And, as Mark DeWolfe Howe suggested, way back when Kedroff was decided, our Religion Clauses and Constitution *can* (still) be understood in a way that's consonant with this pluralism. The ministerial exception is usefully thought of, I think, a still-relevant manifestation of this pluralism (rather than, again, only a concession made by the state for the state's own reasons). Figuring out what exactly the content and contours of this manifestation should be, in terms of legal doctrine and methodology, should be is, no doubt, a challenge, and reasonable people will disagree about it. But, I think the Court was right to emphasize the *right* -- the authority -- of religious communities to select those who will personify their teachings and faith. All the 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 Professor Ledewitz [ledew...@duq.edu] Sent: Friday, January 13, 2012 8:42 AM To: Law Religion issues for Law Academics Subject: Re: Hosanna-Tabor The ministerial exception raises very deep questions about the nature of religion and its relation to everything else. Must it rest on the theory of two realms? Doug Laycock's reference to the child in school illustrates these questions. If the word God were removed from the Pledge, the child would still have the right to refuse to say the Pledge, but no one would claim that the rest of the class cannot recite it or that the student could not be invited to recite. Whatever the problem of the current Pledge is, it does not seem to me to be a matter simply of the rights of the child. It must have to do with the proper role of government. On 1/12/2012 10:09 PM, Douglas Laycock wrote: 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 sense—both 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 based—what underlying worldview was being urged? Although only mentioned once on the panel, I think the worldview at stake was the “two realms”
RE: Supreme Court sides with church on decision to fire employee on religious grounds
Eugene, I don't see the 1 for 1 tax credit or the mailing subsidy as intermediate cases. A 1 for 1 credit is not simply a case of the govt leaving part of my earnings alone so that I can devote them to another sphere, so to speak, or devote them to what some would call mediating institutions. Rather, the government is reimbursing me the full amount of my donation. If my marginal tax rate is 25%, the govt is simply giving me 75 cents of every dollar of the credit. That is not the same as simply not taxing the amount that I donate. I don't think it's difficult mathematically or conceptually to divide the credit into a we aren't taxing you part and a we are giving you money part. One part is simply a matter of leaving me alone to use my resources (essentially a tax deduction), and the other part is a subsidy or transfer payment. On the second example, I think subsidized postage is in fact a subsidy. If ministers got half-price train tickets it would be the same. It is not a case of the govt leaving people alone so that they can devote their resources elsewhere. This is complicated a little, I suppose, if the govt has a monopoly and is charging a monopoly price for postage. Then in a sense the part of the price attributable to the monopoly is a bit like a tax, and not charging the higher price to charities is a bit like leaving them alone to use their resources as they see fit. But that's a bit of a stretch, and in any event it's not very realistic to think that the govt charges high monopoly prices for postage services, is it? I'm not suggesting, of course, that all subsidies to religious groups or to people who use the subsidies for religious purposes violate the Establishment Clause. Sometimes religious people have a right to have their religious activities subsidized if there is a generally available subsidy program (e.g., the right to participate in a subsidized forum as in Rosenberger, or the right to reserve a softball field at the park for free just like any other group). Sometimes it would make sense, and be perfectly consistent with the Establishment Clause, to provide a subsidy to religious and nonreligious activities on a neutral basis even if the Constitution didn't require it. Cf. Locke v. Davey (though I think the Court got it wrong in holding for the state). I suppose tax exemption of property owned by charities, including religious organizations, is a kind of intermediate case. Others on the list will have given this a lot more thought than I have. Here's my view, anyway, which I'm sure is not particularly original: The charity benefits from the fire protection, police protection, road maintenance, etc. paid for by property taxes. The exemption allows charitable organizations to get those services free, though the taxes probably pay for a lot of things that the charitable organization doesn't use. But I think there is a stronger argument that tax exemption is a kind of hands-off approach. Religious groups that have substantial properties but whose congregations are small or poor would see their places of worship seized by the govt (or would be forced to sell their places of worship because they could not afford the taxes). That would send a powerful and unfortunate message of govt supremacy. And to the extent that the taxes exceed the value of services received by the charitable organization, there is the same argument that the charity should be left alone. Best, Mark -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, January 13, 2012 4:56 PM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds Mark: What would you say about a 1-for-1 tax credit for any money that a taxpayer spends on charitable donations? Or for that matter about the old second-class mailing privilege, which was in its heyday the provision of a subsidized service, and which applied equally to religious proselytizing and to other publications? I'm skeptical that the distinction between evenhanded subsidies and evenhanded tax exemptions ultimately works, partly because of the economic equivalence and partly because there are so many intermediate cases such as these. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Friday, January 13, 2012 9:51 AM To: Law Religion issues for Law Academics Subject: RE: Supreme Court sides with church on decision to fire employee on religious grounds I think it is important to distinguish between government taking less money from someone -- in effect leaving room for private use of resources -- and government giving someone money. I realize that the economic effect may be the same, but the social message is
