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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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;
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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