The on-line interview series, Dialogues on Law and Justice, first noted by my colleague Mark, has posted a very useful and informative dialogue with Rick Garnett (Notre Dame) about the ministerial exception; the Hosanna-Tabor case and the several positions of the government, the legal academy, and the Court; some of the mechanics of Supreme Court cert. review; the relationship of the ME to other free exercise issues; and the various meanings of church-state “separation.” Check it out.
European Human Rights Court Rules Clergy Have a Right to Unionize
Here’s an interesting approach to church autonomy. This week, a chamber of the European Court of Human Rights ruled that clergy (and lay employees) of the Romanian Orthodox Church have a right to unionize, notwithstanding the Church’s objections. In 2008, clergy in a Church diocese formed a union to defend their “professional, economic, social and cultural interests” in their dealings with the Church. When the Romanian government registered the new union, the Church sued, pointing out that Church canons do not allow for unions and arguing that registration violated the principle of church autonomy. A Romanian court agreed with the Church, and the union challenged the court’s judgment in the ECtHR. The union argued that the decision not to register it violated Article 11 of the European Convention, which grants a right to freedom of association.
In this week’s decision, the chamber reasoned that, under Article 11, a state may limit freedom of association only if it shows “a pressing social need,” defined in terms of a “threat to a democratic society.” Romania had shown no such need here. The chamber faulted the Romanian court for considering only church traditions and ignoring other important factors, such as domestic and Read more
The Taming of Employment Division v. Smith
When Employment Division v. Smith was decided, it had committed opponents and supporters. Opponents claimed that it represented the end of free exercise; supporters argued that at long last, the Court adopted an appropriately equal, predictable, and univocal principle of free exercise which limited the scope of its political interventions. There was disagreement about the wisdom of Smith (including in Congress, which reacted negatively to Smith with some statutes), but few doubted that Smith was a very big deal for constitutional religious liberty.
CLR Forum readers will know that Smith carved out various exceptions to the rule that neutral laws of general application are constitutional. The first exception dealt with the idea of hybrid rights. The idea was that a less than independently viable free exercise claim, when coupled with another constitutional right of uncertain strength, would become viable. Lower courts have adopted various interpretations of this exception: some have treated it as non-binding dicta, while others have tried to operationalize it in various ways. The second exception has proved to be far more important: where the law at issue is not truly a law of general application — where a system of individualized assessments with respect to exemption from the law has been adopted — then the law is again subject to strict scrutiny. I’ve looked into the question of how much, and how often, lower courts are using this exception (and I also inquired a bit about the extent to which litigants are using it). It turns out…a whole lot. Indeed, the latest example of the application of the individual assessment exception appears in a case reported by my colleague, Mark, just below, and just decided in the Sixth Circuit, where Judge Sutton held that a student who was dismissed from a counseling program because she refused on religious grounds to counsel homosexual couples and non-married couples could proceed with her claim. The court held that the school’s “no referral to other counselors” policy was not one of general application, because referrals for secular reasons had been permitted. For more on the case, see Mark’s item below. You might wonder just how powerful the individualized assessment exception is…you will have to wait for my book to see just how much! For the third exception…follow the jump!
Horwitz on “Tie Games” in Law and Religion
As a commentary chapter for a new book based on the Matters of Faith conference held at University of Alabama, Paul Horwitz (University of Alabama School of Law) has posted Law, Religion, and Kissing Your Sister. The abstract follows.
This paper was written as a commentary chapter for a forthcoming book titled “Matters of Faith: Religious Experience and Legal Response” (Austin Sarat, ed.). The book is based on a conference held at the University of Alabama School of Law in October 2011. Five papers were presented at that conference: on the principal issues discussed, the result was a stark 2-2 tie (with the fifth paper, by a historian, valuable in itself but not taking sides on the disputed matters.) Given the normative orientation of legal scholars, the normal course of business would be to say who is right. But this comment instead focuses on a broader but perennial question: the nature of “tie games” in law and legal scholarship in the area of law and religion.
Church-state conflicts, given the contested and incommensurable issues they involve, are particularly prone to end in ties. That fact has recently encouraged some scholars (myself included) to focus more on the “tragic” nature of church-state law, and the moral remainders that are inevitable in this field, than on the “comic” search for a single value or approach that might resolve some of these disputes once and for all. From that perspective, rather than try to “break the tie,” there may be more value in considering why church-state issues are prone to end in ties, and what if anything we ought to do or feel about it. Read more