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Griffin on the Cases Against the Ministerial Exception

Leslie G. Griffin (University of Houston Law Center) has posted Ordained Discrimination: The Cases Against the Ministerial Exception.  The abstract follows. – ARH

On October 5, 2011 the Supreme Court will hear oral arguments in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Hosanna-Tabor involves the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Fifth Circuit created the ministerial exception in 1972 when it dismissed Mrs. Billie McClure’s equal pay lawsuit against the Salvation Army. Since then, the federal and state courts have repeatedly expanded the exception to reject lawsuits by elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, and communications managers alleging violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers’ Compensation laws and numerous state tort and contract laws.

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Corbin on the Irony of Hosanna-Tabor Evangelical Lutheran Church

Caroline Mala Corbin (University of Miami School of Law) has posted The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. The abstract follows. – ARH

The question presented in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is whether or not a school teacher named Cheryl Perich should be considered a minister. The success of Perich’s Americans with Disabilities Act retaliation claim turns on the answer. If she is not a minister, she would probably win. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.

In fact, neither the Free Exercise Clause nor the Establishment Clause necessitates the ministerial exception. To start, as announced in Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the Americans with Disabilities Act is a neutral law of general applicability. Arguments that the “church autonomy” cases require courts to defer to church hierarchy and that these cases control instead of Smith ignore Jones v. Wolf, the last church property dispute decided by the Supreme Court. Jones v. Wolf explicitly rejects blanket deference to religious institutions in matters of internal governance. It 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 Perich is a minister will entangle courts in religious doctrine more than simply adjudicating her retaliation claim.

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Calo on Catholicism, Liberalism and Human Rights

Zachary Calo (Valparaiso) has posted Catholicism, Liberalism and Human Rights, on SSRN.  The abstract follows. — MLM

Human rights is the dominant moral category of modernity. As both a theoretical concept and the basis of legal norms, human rights shapes the way we think and talk about personhood, social justice, and political obligation. Yet, it is also the case that there is no one account of human rights, but rather competing traditions of human rights that strive for primacy. Human rights, in short, is a deeply contested category through which different moral visions aim to shape institutions and policies. In spite of the label, human rights claims are not universal, either methodologically or substantively. Rather, under the umbrella of human rights is located a constant struggle between the universal and the particular. How this tension unfolds, and whether it does so in a constructive or disruptive manner, is one of the foundational questions that must be engaged in coming years.

In the past, the tension between universality and particularity was considered most commonly in the context of cultural relativism, with particular attention given to the ways in which human rights was a western construct that could not adequately account for different forms of communal values. This issue remains important, though this paper advances the claim that the most significant point of tension is not between human rights values and non-human rights values, but rather a tension within the idea human rights. More specifically, the primary fault line concerns the role of religion and religious traditions as they relate to human Read more

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Horwitz on the Ministerial Exception

Paul Horwitz (University of Alabama School of Law) has posted Act III of the Ministerial Exception. The abstract follows. –JKH

On October 5, 2011, the Supreme Court will hear oral arguments in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case in which the Court will consider the existence and nature of the so-called “ministerial exception”: the judicial doctrine that gives churches legal immunity in employment discrimination cases brought by “ministerial” employees. The case promises to be one of the more important church-state decisions in recent years. In conjunction with the second Annual Law and Religion Roundtable, the Northwestern University Law Review Colloquy will be publishing several pieces on the case.

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Spencer on the Mahr as Contract

Katherine Spencer (Harvard University) has posted Mahr as Contract: Internal Pluralism and External Perspectives. The abstract follows. —YAH

This paper examines the Islamic legal doctrine of mahr- an inherent component to the marriage contract. In the first part the principal aspects of the marriage contract are analyzed and the pluralism between Islamic schools and geo-political regimes are acknowledged. In the second part the ‘mahr’ itself is specifically considered, noting the difficulties for Western scholars in conceptualizing and categorizing a provision that has no equivalent in Judeo-Christian marriage. The third part looks at the ways in which US and UK courts have categorized the mahr as a contract, or a term within a contract and yet have reached different conclusions on its enforceability. This produces inconsistent and sometimes unfair results and begs the question whether the recognition of Islamic family law by ‘Western’ courts is inherently problematic. In the final section I attempt to answer some of those larger questions and conclude with the view that giving effect to mahr agreements as enforceable personal rights is judicially feasible – with the proviso however that in circumstances of profound unfairness and where contrary to public policy courts maintain the discretion to render such contracts unenforceable.

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Jones on Internal Church Schism, Property Law, and Constitutional Limitations

In September, Bernie D. Jones of Suffolk University Law School posted Litigating the Schism and Reforming the Canon: Orthodoxy, Property & the Modern Social Gospel of the Episcopal Church.  Her article explores the issues that arise when intra-church dogmatic schisms encounter property jurisprudence and the thorny predicament that American courts, in turn, face when asked to decide questions of doctrinal accuracy under a system in which the Establishment Clause forbids courts’ taking sides in internal theological debates.  Jones ultimately recommends the development of internal Episcopal processes for resolving such disputes.

This article relates to a host of present-day schisms in the Anglican Communion.  Doctrinal controversies over issues such as the ordination of female priests have resulted in more than twenty American Episcopal congregations’ opting to align themselves with conservative bishops in Nigeria, Uganda, and Rwanda; forming new domestic provinces in the United States; and English congregations’ leaving the Communion for Catholicism.

When controversies that are, at their root, theological lead to legal questions over the ownership of property, what, if anything, can an American court do without violating constitutional limitations?

See the abstract of Jones’ article after the jump:

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Ledewitz on The Morality of Capital Punishment

Bruce Ledewitz (Duquesne University – School of Law) has posted The Morality of Capital Punishment: An Exchange. The abstract follows. – ARH

During the month of December, I participated in a debate about the death penalty with Dr. Ernest van den Haag. The debate was sponsored by the newly-formed Duquesne Law School chapter of the Federalist Society. During this debate, I expressed the view that secular society lacks “permission” to impose the death penalty. Dr. van den Haag responded at the time that “we give ourselves permission.” Later, Dr. van den Haag agreed to a brief, further exploration of this theme in the pages of the Duquesne Law Review. What began for me as an exploration of God’s permission for the death penalty in a secular state, has evolved into a consideration of the religious assumptions underlying the death penalty in a secular state. In order to identify these assumptions, it is first necessary to examine the secular justifications for the death penalty given by Dr. van den Haag.

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Wiebe on Oaths in a Religious and Legal Context

Virgil Wiebe (University of St. Thomas School of Law) has posted Oath Martyrs. The abstract follows. – ARH

Taking oaths, or refusing to take them, or being prevented from taking them, or breaking them, have been critical matters, even life and death matters, for centuries. Why do lawyers and others in official proceedings swear oaths? What do oaths mean? Why are there provisions for affirmations rather than swearing? How can long forgotten stories of oath martyrs inform law students and lawyers today?

Part I of this article presents a short slide backwards into the long history of oaths, with emphasis placed on the role of religious belief in oaths. Infidels, the infamous, the indiscreet, the insane, interested parties: all were barred at various points from testifying under oath. As I teach and practice in Minnesota, some extra attention is paid to the evolution of oaths in Minnesota, placed in larger Anglo-American legal context. Read more

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Menchik on Religious Intolerance in Islamic Institutions

Jeremy M. Menchik (Stanford University; University of Wisconsin-Madison) has posted Missionaries, Modernists and the Origins of Intolerance in Islamic Institutions. The abstract follows. –JKH

 Why are some Islamic institutions more tolerant than others? This basic question has far-reaching implications. Islamic movements have considerable sway in the policies of newly democratic Egypt, Tunisia and most other Muslim-majority states. Islamic movements are likewise important for the formation of social trust; recent scholarship suggests that democratization in Muslim counties is more likely to occur when Islamic institutions are able to build networks of cooperation across religious differences, while scapegoating and sectarian polemics between religious groups increases the likelihood of violence. I answer this basic question by focusing on Islamic institutions in Indonesia, the world’s largest Muslim-majority country and one of the most diverse. Using archival material and newly collected survey data, I argue against the notion that theology or ideology shape interethnic relations and show that local politics during the late colonial period explains the policies of contemporary Islamic institutions.