Thanks to Ron Colombo and Welcome to Steve Smith

Thanks very much to Ron Colombo for his many stimulating posts in June.  Ron may stay on for a short bit to finish up some last posts, and we hope to get him back again soon.

And it is a special pleasure to welcome Steven D. Smith, who will be posting with us for the next little while.  Steve is one of the very most interesting, thoughtful, and insightful scholars of constitutional law and law and religion.  He joins us from the University of San Diego School of Law, where he is the Class of 1975 Endowed Professor as well as co-Executive Director (with the great Larry Alexander) of the Institute for Law and Religion.  

Among Steve’s many terrific books are:

His articles — many of which are listed here — all repay careful reading (one among many of my personal favorites is That Old Time Originalism)

A very warm welcome to Steve!

Florida Appellate Court: Church Autonomy Doctrine Does Not Require Dismissal of Tort Claims

Readers may remember that in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court explicitly put to the side the question of the ministerial exception’s application to tort actions.

Here’s an interesting Florida appellate court case decided yesterday which describes some of the contours of the church autonomy doctrine in the context of relatively simple defamation and breach of fiduciary duty claims.  The plaintiff joined the First Pentecostal Church of South Brevard, Inc. and he befriended the pastor at the time.  The two developed a personal and professional friendship, and the pastor even sponsored the plaintiff to obtain a minister’s license in the greater Pentecostal church.  At some point, however, the relationship soured when the pastor accused the plaintiff of being gay and published those accusations to the congregation, including to the plaintiff’s fiancée’s father. 

Plaintiff filed a complaint for defamation and other causes of action and the defendant pastor moved to dismiss for lack of subject matter jurisdiction on the basis of the church autonomy doctrine.  The lower court dismissed.

The Florida appellate court reversed.  After finding that the church autonomy doctrine acts as a jurisdictional bar (rather than an affirmative defense…note that Hosanna-Tabor took a different view of the ministerial exception, and see also Howard Wasserman’s very good piece), the court held that the church autonomy doctrine did not shield an action by a minister of a church where there was no evidence that “the conduct in question had been undertaken ‘in furtherance of a sincerely held religious belief,’ and no claim that the church had failed to exercise control over its clergyman because of sincerely held religious beliefs and practices.”  The First Amendment, the court concluded, “does not grant Myers, as pastor of FPC, carte blanche to defame church members and ex-members . . . . This claim can be properly adjudicated without implicating the First Amendment.”

The case is Bilbrey v. Myers, 2012 WL 2465242 (Fla. App. Dist. June 29, 2012).

Berger on Religious Liberty in the United States

Peter Berger’s column from a couple of days ago is (as always) worth a read (agree or disagree).  The comparative point about the condition of religious liberty in the United States as opposed to many other places in the rest of the world is certainly correct.  Berger makes clear that he is not at all “in tune with the vehemence” of the “campaign” of the USCCB on this issue.  But he also makes the very reasonable and, to my mind, highly persuasive point that there is an important difference between agreement about the scope of government power or the cultural conditions in which religious tolerance best flourishes and agreement about matters of specific theology or policy.  Here’s a bit from the conclusion:

Beyond the legal matter of cases that require new clarifications of the first amendment, there is a broader issue here—that of an increasingly intolerant culture of secularism, trying to use the state to enforce its values—itself part of the even broader issue of government over-reach.  The Roman Catholic Church has been a major target of this secularist agenda,  because its sexual ethics has been repugnant to many people (the ever widening scandal of pedophile priests has clearly fed the repugnance). There is a very real issue of religious freedom here—a good reason to support the Catholic bishops, even if one completely disagrees with their views on issues south of the navel.

Fourth Circuit: No Establishment Clause Violation in Credits for Off-Campus Religious Education

The United States Court of Appeals for the Fourth Circuit has held that a South Carolina public school district policy of permitting its students to receive 2 units of credit for off-campus religious instruction does not violate the Establishment Clause.  The policy was adopted pursuant to a South Carolina state statute which authorized such credits with various limitations.  Several students in the school district took a class in a neighboring religious school entitled, “Christian Worldview,” the quality of which was assessed by another religious school (thereby obviating the need for the public school to evaluate the quality of the educational program).  The public school district did not officially promote or otherwise encourage its students to take the course, and it did not list the course on its catalog, though it did permit fliers to be distributed by its guidance counselors advertising the course — to be discussed and distributed only after a student expressed interest.  Over a 3 year period, about 20 of the district’s 1,500 students took the course each year.

The plaintiffs are parents and students in the district, as well as the Freedom From Religion Foundation, who believe that this policy violates the Establishment Clause.  The district court disagreed, and the Fourth Circuit affirmed.  After eliminating some of the plaintiffs on standing grounds (including FFRF), the court recognized the difference between a case like this and Zorach v. Clausen — the giving of academic credit for release time programs.  But the court found that this distinction was not important with respect to the constitutionality of release-time programs.  The one that mattered was the distinction between Illinois ex rel. McCollum (in which religious instruction was had within the public schools, and those who did not want it were compelled to go elsewhere) and Zorach (off-campus instruction), and the district’s approach was far closer to the latter.

Here is another interesting statement by the Fourth Circuit:

[P]rivate religious education is an integral part of the American school system. Indeed, States are constitutionally obligated to allow children and parents to choose whether to fulfill their compulsory education obligations by attending a secular public school or a religious private school . . . . It would be strange and unfair to penalize such students when they attempt to transfer into the public school system by refusing to honor the grades they earned in their religious courses, potentially preventing them from graduating on schedule with their public school peers. Far from establishing a state religion, the acceptance of transfer credits (including religious credits) by public schools sensibly accommodates the “genuine choice among options public and private, secular and religious.” Zelman v. Simmons-Harris, 536 U.S. 639, 662 (2002) (upholding an Ohio voucher initiative for this reason).

The case is Moss v. Spartanburg County School District Seven.

Call for Papers: “Emerging Issues in First Amendment Jurisprudence”

The Elon Law Review has issued a call for papers for a symposium, “Emerging Issues in First Amendment Jurisprudence: Interpreting the Relationship between Religion and the State in the Modern Age,” to be held in October 2012. Proposals are due next month. Details are here.

Syria’s Threatened Christians

The authors of this New York Times op-ed discuss the threat anti-Assad forces, which include increasing numbers of Sunni jihadists, pose to Syria’s Christians. “The ousting of the Assad regime has become a global moral obligation,” they write, “but so has the duty to ensure that Syria’s future holds a place for all minorities.” A nice thought, but given the track record, can anyone seriously expect that either Western governments or the international human rights community will do very much for Syria’s Christians?

Religion and Education in Northern Ireland

Christopher McCrudden (Queens University Belfast, University of Michigan Law School) has posted Religion and Education in Northern Ireland: Voluntary Segregation Reflecting Historical Divisions.  The abstract follows.

Since the foundation of Northern Ireland (‘NI’) in 1920, the issue of control over primary and secondary education has been a source of significant tension between its two main ethno-religious communities as well as between each and the NI government. Education in Northern Ireland is organised differently compared with the rest of the United Kingdom and several of its ‘unique features’ arise out of the particular form of its political and religious sensitivities concerning education. This chapter is structured as follows. First, I shall outline the features of the governance of education in the NI model. Secondly, I shall attempt to explain briefly why these features came about. Thirdly, I shall consider research that has attempted to understand the effects of the model on the religious background of pupils in different schools. Fourthly, I shall address the role of teachers in this model. Fifthly, I shall consider issues relating to curriculum and collective worship. Sixthly, the crucial issue of school funding will be examined. Finally, I shall consider the prospects for the model in the future by considering pupil opinion on the structure of schooling and I shall explain how this model relates to political developments in Northern Ireland generally.


Hertzke (ed.), The Future of Religious Freedom

This November, Oxford University Press will publish The Future of Religious Freedom: Global Challenges edited by Allen D. Hertzke (University of Oklahoma). The publisher’s description follows.

What is the status of religious freedom in the world today? What barriers does it face? What are the realistic prospects for improvement, and why does this matter? The Future of Religious Freedom addresses these critical questions by assembling in one volume some of the best forward-thinking and empirical research on religious liberty, international legal trends, and societal dynamics. Top scholars from law, political science, diplomacy, sociology, and religion explore the status, value, and challenges of religious liberty around the world – with illustrations from a wide range of historical situations, contemporary contexts, and constitutional regimes. Read more

Religious Groups Still Oppose Health Care Law

In the “Generalissimo Francisco Franco Is Still Dead” category, the Wall Street Journal reports that religious groups suing the Administration over the ACA’s contraceptive mandate are continuing with their lawsuits, notwithstanding today’s Supreme Court decision upholding the constitutionality of the statute. No surprise there: today’s decision didn’t address the groups’ First Amendment claims.