Posted on by Marc O. DeGirolami

Justice John Marshall Harlan on Education and Religion

In my constitutional law class, we are studying a very interesting case, Berea College v. Kentucky (1908).  The case involved a private religious college which wished to teach white and African American students together; this was criminalized at the time by the state of Kentucky, which had enacted a statute forbidding any educational institution from integrated teaching.  The statute was upheld on a narrow ground by the Court, and Justice John Marshall Harlan (the first), himself a Kentuckian, dissented (as, of course, he often and famously did).

I reproduce below an interesting and, in my view, constitutionally provocative law-and-religion passage from Harlan’s dissenting opinion:

The capacity to impart instruction to others is given by the Almighty for beneficent purposes; and its use may not be forbidden or interfered with by government, — certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety . . . . If the common-wealth of Kentucky can make it a crime to teach white and colored children together at the same time, in a private institution of learning, it is difficult to perceive why it may not forbid the assembling of white and colored children in the same Sabbath school, for the purpose of being instructed in the Word of God, although such teaching may be done under the authority of parents of the children.  So, if the state court be right, white and colored children may even be forbidden to sit together in a house of worship or at a communion table in the same Christian church.  In the cases supposed there would be the same association of white and colored persons as would occur when pupils of the two races sit together in a private institution of learning for the purpose of receiving instruction in purely secular matters.  Will it be said that the cases supposed and the case here in hand are different, in that no government, in this country, can lay unholy hands on the religious faith of the people?  The answer to this suggestion is that, in the eye of the law, the right to enjoy one’s religious belief, unmolested by any human power, is no more sacred nor more fully or distinctly recognized than is the right to impart and receive instruction not harmful to the public.  The denial of either right would be an infringement of the liberty inherent in the freedom secured by the fundamental law.

Posted on by Mark Movsesian

Vatican Office Rules American Bishop Wrongly Closed Parishes

According to news reports, a Vatican office has taken the extraordinary step of overruling a bishop’s decision to close 13 parishes in his diocese. The Bishop of Cleveland, Richard Lennon, ordered the parishes closed as part of a diocesan downsizing three years ago. Parishioners challenged the closings as violations of canon law, and yesterday the Congregation for the Clergy, an office in the Roman Curia, ruled in their favor. According to the parishioners’  lawyer, the Congregation held that Bishop Lennon had failed to follow the canonical procedure for closing parishes, for example, by neglecting to consult clerical advisers and issue a formal decree. Bishop Lennon may now appeal to the Vatican’s high court. This week’s ruling is yet another example of the growing interest in canon-law litigation in the Catholic Church.

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Esbeck on Hosanna-Tabor and the First Amendment

Carl H. Esbeck (University of Missouri School of Law) has posted A Religious Organization’s Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment.  As noted by Professor DeGirolami in an earlier post, Professor Esbeck co-authored an amicus brief in the case.  The abstract of the article follows.

In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required.

Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during a sacrament. Smith held that the Free Exercise Clause was not implicated when Oregon enacted a neutral law of general applicability that happened to have an impact on a religious practice. The Court admitted that the nondiscrimination law in Hosanna-Tabor was a general law of neutral application that happened to have an impact on the School’s ability to fire a teacher. It distinguished Smith. Read more

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Bickers on Standing and Establishment Clause Jurisprudence

John M. Bickers (Northern Kentucky University – Salmon P. Chase College of Law) has posted a very interesting piece, Standing on Holy Ground: How Rethinking Justiciability Might Bring Peace to the Establishment Clause.  The abstract follows.

The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting lack of clarity leaves lower courts to their own devices in endeavoring to calm increasingly intense struggles. Read more