Brian M. Murray (Staff Attorney, Community Legal Services of Philadelphia) has posted The Elephant in Hosanna-Tabor. The abstract follows.
This article identifies an unarticulated and widely ignored assumption in the Supreme Court’s recent religious liberty decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which grounded the ministerial exception in the Free Exercise Clause. Specifically, the Court’s failure to articulate which organizations can invoke the ministerial exception could undermine the Free Exercise Clause that is the very basis of the exception’s existence. I argue that the Court’s oversight will result in significant future litigation in a post-Employment Division v. Smith world. The Court’s decision in Hosanna-Tabor uses ambiguous and careless language when failing to articulate the assumption mentioned above. Chief Justice Roberts’ majority opinion uses phrases such as “religious body,” “church,” and “religious organization” interchangeably and without explanation. I explain why this is inadequate from an historical, jurisprudential, and practical perspective by highlighting the tradition of recognizing institutional autonomy and the rise of unconventional religious entities, known as “parachurches,” that self-define as religious. These organizations will present the trickiest case studies with respect to the ministerial exception, thereby making future litigation on this issue likely.
Just a reminder that I’ll be speaking tonight at the First Things editorial offices in Manhattan on the subject of equality for Christians in the Middle East. Details are here. If you’re in the neighborhood, please stop by and say hello.
This month, Baylor University Press publishes The Constitution of Religious Freedom: God, Politics, and the First Amendment by Dennis J. Goldford. Goldford, Professor of Politics at Drake University in Iowa, argues that the Religion Clauses of the First Amendment do not create a national religious identity, but, instead, create a religious liberty located squarely in the individual. The publisher’s abstract follows:
In a time when the question of American religious identity underlies much political conversation that fills the public square, Dennis Goldford directs his readers to consider the First Amendment. The founding fathers’ words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” are the constitutional means of ensuring, however imperfectly, the American freedom to stand for something sacred. In his analysis, Goldford ably demonstrates that the very nature of these religion clauses establishes protection not for religion but for religious freedom. The Constitution of Religious Freedom argues that religious identity inheres not in the nation, but in the individual citizen.
Beverly I. Moran, tax-law scholar and Professor of Law at Vanderbilt Law School, has posted Islamic Law Meets Erisa: How America’s Private Pension System Unintentionally Discriminates Against Muslims and What to Do About It. The article explores the position of Muslim employees, who can be disadvantaged when their religious beliefs prevent them from taking retirement funds generated through interest schemes; the challenge to, and obligations of, employers in accommodating these employees’ beliefs; and related Title VII jurisprudence. The author’s abstract, describing this complicated and troubling legal landscape, follows the jump. Read more
Robin Fretwell Wilson (Washington and Lee University – School of Law) has posted The Perils of Privatized Marriage. The abstract follows.
Governments around the world continue to struggle with how to accommodate religious minorities in an increasingly pluralistic society, and how to accommodate religion in matters of family law. Efforts to respect religious understandings in family disputes seem at first blush innocuous: they would allow religious groups to define their own norms and celebrate the rich diversity of society. However, the experience of women and children of multiple faiths across the world demonstrates that religious deference extracts an unconscionable price. As the Volume in which this Chapter appears illustrates, such proposals would confer considerable latitude in family matters not only on adherents of Islam, but on Christians, Jews, and members of other faiths.