CLR Forum reader John McGinnis points out an interesting article in the New York Times this weekend, about Duke Law Professor Barak Richman’s quest to have the courts declare Conservative Judaism’s rules for naming rabbis a violation of the Sherman Act. It’s not entirely clear from the Times article, but, as I understand it, synagogues that affiliate with Conservative Judaism must select rabbis from lists approved by the Rabbinical Assembly, a membership association of Conservative rabbis. Richman believes this mechanism makes the Rabbinical Assembly an illegal “cartel” that “harms both the economic welfare and the religious interests of individual congregations.” He argues that the ministerial exception properly applies only to hierarchical religions and employers, not “congregational denominations,” like Conservative Judaism, in which individual congregations, not the central body, employ clergy. You can read his argument in an amicus brief he filed, along with several other antitrust scholars, in the Hosanna-Tabor case.
I don’t know whether this mechanism would violate the Sherman Act in a commercial setting. I’m confident the logic of the ministerial exception applies here, though. From what I can gather, Conservative Judaism is a hybrid polity, not hierarchical but not strictly congregational, either. Authority seems to be shared between the central body, the United Synagogue of Conservative Judaism, and local congregations. It hardly seems inappropriate to require local congregations that affiliate with the central body to choose clergy the central body approves; otherwise, the central body could lose control over the movement’s meaning and message. Although Professor Richman is correct that the rules impinge on individual congregations’ power to choose whomever they wish as clergy, that’s just a consequence of affiliating with the central body. If congregations want total freedom of choice, they can organize outside the Conservative movement and select whomever they wish.
Rosemary R. Hicks (Tufts U.) has posted Between Lived and the Law: Power, Empire, and Expansion in Studies of North American Religions. The abstract follows.
Taking debates about the Park51 (or ‘Ground Zero’) mosque and Islamic Community Center as a case study, this article demonstrates the need for scholars of religious traditions in North America to move beyond liberal modes of historicizing that pluralize narratives about religion but ignore how religion is defined and regulated. Liberal modes of historicizing create space for different traditions by first naturalizing differences as ostensibly fixed, inherent, and eternal – a dynamic that has proven to produce antagonistic narratives and relations as well as ‘tolerant’ ones. This is in part due to the fact that such narratives somewhat broaden the inclusivity of the U.S. public sphere but in so doing obscure the various means and power dynamics by which the boundaries of acceptable religiosity are policed. Finally, this article examines and offers analyses that provide more robust mechanisms by which to understand issues of religious diversity and liberty in the United States.
The U.S. District Court for the District of Columbia has dismissed Wheaton College’s complaint against Kathleen Sebelius and the Department of Health and Human Services on standing and ripeness grounds. As to standing, the court held that Wheaton’s allegations only made out claims of “future possible injury” because HHS has informed Wheaton that it qualifies for the safe harbor provisions of the mandate, and because an enforcement action by HHS within the safe harbor is neither imminent nor likely. As to ripeness, the court said: “Because they are in the process of being amended, the preventive services regulations are by definition a tentative agency position,” and therefore unfit for adjudication.
The case is Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. Aug. 24, 2012).
Next month, Cambridge University Press will publish Legal Responses to Religious Practices in the United States, edited by Austin Sarat (Amherst College). The collection of essays includes works by Meredith Render, Paul Horwitz, Steven D. Smith and Richard W. Garnett. The publisher’s description follows.
There is an enormous scholarly literature on law’s treatment of religion. Most scholars now recognize that although the U.S. Supreme Court has not offered a consistent interpretation of what “non-establishment” or religious freedom means, as a general matter it can be said that the First Amendment requires that government not give preference to one religion over another or, although this is more controversial, to religion over non-belief. But these rules raise questions that will be addressed in Legal Responses to Religious Practices in the United States: Namely, what practices constitute a “religious activity” such that it cannot be supported or funded by government? And what is a religion, anyway? How should law understand matters of faith and accommodate religious practices?