The Washington Post has a balanced article on the ministerial exemption and the upcoming Hosanna-Tabor case with some interesting comments from Professor Chip Lupu. One thing Chip mentions that I had not thought about was that he expects the three female justices, Justices Ginsburg, Sotomayor, and Kagan, to vote for a narrow ministerial exemption (assuming that they vote for an exemption) for the reason that they will want to protect teachers in religious schools who are likely to be women. I am not sure how these Justices would vote, but I think I agree with Chip that some or perhaps even all three of them are likely to vote for a narrow exemption. For example, I think Justice Kagan’s dissent in Arizona v. Winn was some indication of her views of religion clause questions, though that case implicated EC issues, and these Justices’ views of the FEC is largely a mystery. But I had not considered the particular reason that Chip offers. But if this is a reason to vote against the ME, I don’t think it’s one which would apply to a variety of (perhaps even many) situations in which the ministerial exemption would otherwise apply. Do others disagree with me? — MOD [x-posted MOJ]
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.
October 4: Hosanna-Tabor Discussion at St. John’s
On October 4 (next Tuesday), CLR and the Catholic Law Student Society at St. John’s University School of Law will co-host an event devoted to Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The Supreme Court hears oral argument in this case on October 5, so it could not be more timely. I will be talking about the case — one of the most important religious liberty cases to come before the Court in at least two decades — and the doctrine of the ministerial exemption generally. There will then be a period of questions, discussants to include my colleagues David Gregory and Mark Movsesian as well as Mr. Peter J. Johnson, Jr., president of Leahy & Johnson, P.C. I hope to record my thoughts about the discussion here.
The event will occur in the 4th floor Atrium at 5:30 pm. All are welcome. If you are in the area, please stop by to say hello. — MOD
UPDATE: Just after I posted this, I noticed this article about the case. Likely there will be many similar pieces in the coming days. In my view, this article is misleadingly titled. The case is not about religious institutions’ power to “declare” that their employees are exempt from “federal protections.” It is about whether and in which circumstances (if ever) the Constitution, as interpreted by the Supreme Court, limits the reach of anti-discrimination law. It may or it may not; but in either case, little turns on anybody’s individual declarations (though conceivably if an institution explicitly waived its rights, that might be relevant).
Classic Revisited: Hamburger’s “Separation of Church and State”
In light of some recent perplexing commentary, it seemed like an
appropriate moment to commend the definitive book about the historical origins of the famous metaphor of the “wall of separation” between church and state, as well as its use in constitutional law beginning at the turn of the 20th century and especially since the famous Everson decision: Philip Hamburger’s Separation of Church and State (HUP 2002).
And just in brief response to the post by Sarah Posner above, it seems to me that both constitutional conservatives and constitutional progressives do not, today, differ on the viability of separation as a principle of religious liberty per se, so much as they differ on the nature and scope of the principle of separationism. The question, to my mind, is not whether the idea of separationism is “a myth.” An important variety of separation between ecclesiastical and temporal authority is bedrock — indeed, it was the Catholic Church itself which played a key role in initiating this separation. The question is instead what the particular contours of the principle should be today — one which thoughtful constitutional conservatives and constitutional progressives can debate without resorting to caricature. — MOD
Sisk and Heise on Religious Liberty Claims Brought by Muslims in the Federal Courts
Gregory C. Sisk (University of St. Thomas School of Law) and Michael Heise (Cornell Law School) have posted Muslims and Religious Liberty in the Era of 9/11: Empirical Evidence from the Federal Courts. The abstract follows. –YAH
In our continuing empirical study of religious liberty decisions, we find that Muslims asserting free exercise or accommodation claims were at a distinct and substantial disadvantage in the lower federal courts for the period of 1996-2005. Holding other variables constant, the predicted likelihood for success for non-Muslim claimants in religious free exercise or accommodation claims was approximately 38 percent, while the predicted probability for success for Muslim claimants fell to approximately 22 percent (with the disparity being slightly higher among court of appeals judges). In sum, Muslim claimants had only about half the chance to achieve accommodation that was enjoyed by claimants from other religious communities.
Drawing on insights from legal studies, political science, and cognitive psychology, we discuss alternative explanations for this result, including (1) a cultural antipathy to Muslims as a minority religion outside the modern American religious triumvirate of Protestants, Catholics, and Jews; (2) growing secularism in certain sectors of society and opposition to groups with traditional religious values; (3) the possibility that claims made by Muslims are weaker and deserve to be rejected on the merits; and (4) the perception that followers of Islam pose a security danger to the United States, especially in an era of terrorist anxiety. Presenting a new threat to religious liberty, the persistent uneasiness of many Americans about our Muslim neighbors appears to have filtered into the attitudes of even such well-educated and independent elites as federal judges.
Lecture: Rakove on Free Exercise at Boston College
Those who are in the Boston/Chestnut Hill area on September 15 may want to check out this lecture (open to the public) by world famous constitutional historian Jack Rakove, “Beyond Belief: The Radical Significance of the Free Exercise of Religion,” at Boston College’s Clough Center for the Study of Constitutional Democracy (headed up by Ken Kersch, whose own writing on the history of 20th century legal conservatism is superb). — MOD
Laycock’s “Religious Liberty: The Free Exercise Clause”
Doug Laycock (Virginia) is one of the most important scholars of religious
liberty writing today. My own view is that his treatment of the Free Exercise Clause, and especially his idea of “substantive neutrality,” is among the most penetrating, original, and persuasive ever conceived. It’s therefore a pleasure for me to announce the publication of the second volume of Doug’s four-volume tour-de-force on the subject, Religious Liberty, Volume Two: The Free Exercise Clause (Eerdmans 2011). The first volume in the series is also excellent and may be found at the publisher’s site. The publisher’s description of the book follows. — MOD
One of the most respected and influential scholars of religious liberty in our time, Douglas Laycock has argued many crucial religious liberty cases in the U.S. appellate courts and Supreme Court. His noteworthy scholarly and popular writings are being collected in four comprehensive volumes under the title Religious Liberty.
This second volume, The Free Exercise Clause, includes articles, amicus briefs, and court documents relating to regulatory exemptions under the Constitution, the right to church autonomy, and the rights of non-mainstream religions. Dealing with religious schools and colleges, sexual abuse cases, the rights of Hare Krishnas and Scientologists, the landmark decision Employment Division v. Smith, and more, this will be a valuable reference for churches, schools, and other religious organizations as they exercise their constitutionally protected freedom.