Bartrum on The Ministerial Exception and the Limits of Religious Sovereignty

Ian C. Bartrum (U. of Nevada, Las Vegas, William S. Boyd School of Law) has posted The Ministerial Exception and the Limits of Religious Sovereignty. The abstract follows.

In January, the Supreme Court announced its decision in Hosanna Tabor v. EEOC and gave its official blessing to the controversial bit of doctrine known as the “ministerial exception.” The exception, which has been alive in the Circuit Courts for nearly forty years, exempts religious organizations from employment discrimination laws in the context of “ministerial” hiring decisions. Thus, such organizations are free to discriminate against ministerial employees not only on the basis of religion—which various statutory exemptions already permit—but also on the basis of race, gender, sexual orientation, and disability. Several thoughtful and well-­‐respected voices have suggested that this effectively places churches “above the law,” and in some sense these criticisms seem to ring true. The constitutional justification often offered for this state of affairs, however, is that churches are not so much above the civil law, as simply outside of its jurisdiction. That is, while we may disapprove of the ways that a church selects its leadership—indeed, we may even believe that certain hiring practices are illegal—our constitutional structure simply does not empower the government to intervene in matters of church governance. And we have structured our Constitution in this way based, in large part, on the liberal Lockean conviction that church and state operate within separate and incommensurable spheres.

Carried to its logical extreme, however, this conception of separate and independent religious sovereignty suggests that the bar to governmental intervention in church governance is absolute; that a church can do anything—including, presumably, perform sacrificial rituals—that its members believe essential to basic governance decisions. In truth, however, no one I know of holds this sort of extreme, absolutist view, and thus arises the theoretical puzzle this essay addresses. If religious sovereignty is not absolute—if the liberal check on the state’s power to invade church jurisdiction does not go “all the way down”—then where do the limits on that sovereignty lie, and how do we determine that a church has exceeded them? In what follows, I draw some lessons from Thomas Kuhn’s thoughts about the shared grounds on which scientists justify their choices between incommensurable theoretical paradigms. Ultimately, I conclude that we can and do make decisions about the scope of religious sovereignty by balancing constitutional purposes against one another in making what Kuhn called “value judgments.” In the case of the ministerial exception, it is my constitutional value judgment that racial discrimination both exceeds the limits of independent religious sovereignty, and justifies state intervention in church governance.

Corbin on The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

Caroline Mala Corbin (U. of Miami School of Law) has posted The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Although Corbin addressed this issue last year, this updated article includes Corbin’s reflections post-decision. The abstract follows.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost. In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have.

A Return to Civil Religion?

Yale sociologist Philip Gorski has written a thoughtful essay in The Chronicle of Higher Education (subscription required) on the need to accommodate both secular and religious values in American politics. Both secular and religious Americans should give up their maximalist claims, he argues, in favor of “civil religion,” a concept most closely associated in the United States with sociologist Robert Bellah:

What is needed, then, is a mediating tradition that allows room for both religious and political values, without subordinating one to the other. Such a tradition does exist. The sociologist Robert N. Bellah sought to describe it almost a half century ago in his famous article on “Civil Religion in America.” It comprises two main intellectual strands: civic republicanism and prophetic religion. Where liberalism emphasizes individual autonomy and a free market, republicanism is more concerned with civic virtue and participatory government. Consequently it is less wary of religion. Where religious conservatism stresses individual salvation and personal accountability, prophetic religion emphasizes human flourishing and collective responsibility. Consequently it is less wary of the state.

It’s an interesting idea, but I wonder whether civil religion would really do the job Gorski asks of it. At an abstract level, civil religion may resolve tensions between individualists and communitarians, between secular and religious Read more

Zaman, “Modern Islamic Thought in a Radical Age”

One of the most important debates in contemporary Islam concerns the possibility, and desirability, of accommodating classical Islamic law to modernity. A new book by Princeton scholar Muhammad Qasim Zaman, Modern Islamic Thought in a Radical Age: Religious Authority and Internal Criticism (Cambridge 2012),  addresses the debate. The publisher’s description follows.

Among traditionally educated scholars in the Islamic world there is much disagreement on the crises that afflict modern Muslim societies and how best to deal with them, and the debates have grown more urgent since 9/11. Through an analysis of the work of Muhammad Rashid Rida and Yusuf al-Qaradawi in the Arab Middle East and a number of scholars belonging to the Deobandi orientation in colonial and contemporary South Asia, this book examines some of the most important issues facing the Muslim world since the late nineteenth century. These include the challenges to the binding Read more

Vallerani, “Medieval Public Justice”

Harold Berman famously argued that Western legal culture originated in the papal reforms of the High Middle Ages, which unleashed a torrent of law making throughout society. Catholic University Press has just released an English-language translation of University of Turin historian Massimo Vallerani’s work on the evolution of criminal trials in medieval Italy, Medieval Public Justice (2012), which includes statistical analyses of surviving court records. The publisher’s description follows.

In a series of essays based on surviving documents of actual court practices from Perugia and Bologna, as well as laws, statutes, and theoretical works from the 12th and 13th centuries, Massimo Vallerani offers important historical insights into the establishment of a trial-based public justice system. Challenging the long-standing evolutionary paradigm of medieval Read more