Reviewing the Oral Argument in Hosanna-Tabor (Part One)

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4 Responses

  1. Joe says:

    “Are religious groups entitled to disobey the law?”

    Is this a productive way to start? The claim is that “the law” (the 1A as well as statutory law) provides religious groups a somewhat limited ability to have more protections than non-religious groups.

    Is any religious exemption a grant to “disobey” the law, or is it a recognition BY the law that certain groups or individuals warrant special rules? Is the privacy of the confessional vs. the board room a matter of one side getting to “disobey” the law? Since ultimately “the law” governs everyone here, I find the opening gambit problematic.

    I also found it pointless for the government here to reject that clear desire by both sides (e.g., Kagan and Scalia) to treat religious associational interests as having some special character. This doesn’t stop the government, see Cantwell v. Connecticut, from saying there is a limit to the discretion. Why antagonize the justices like that?

    I find the line drawing here interesting. Let’s say a church official sexually harasses a deacon. If she does not want to use the alleged harassers own conflict resolution process (maybe because it ignored such harassment in the past), but seeks tort liability or reports it to the local EEOC body, what happens? What if an official’s negligence breaks her leg? The implication by the other side seems to be that she can obtain damages, but lose her position, the latter not open to review, since it is a ministerial matter. So, she has a disincentive to use government dispute mechanisms. The Court saw a problem here since this might reflect the church’s beliefs. Where is the line between that and forcing Catholics to accept women priests?

    Query: perhaps, this is a neutral aspect of the government’s legitimate oversight of possible abusive treatment. If the government can not let the church discourage ministers from reporting child abuse, harm to ministers themselves can be covered as well. Churches cannot have total discretion to self-police, being self-interested. The fact the desire to self-police, shades of Cantwell saying the right of free exercise is limited, does not give them total discretion.

  2. Wondering says:

    I did a little research on the ministerial exception, and found a few cases where the court was said to be non-waiveable–that is, even if the leaders of the religious institution tell an employee that their role is non-ministerial, and that they don’t have to worry about it, they could still block an ensuing contract law action after termination because they never had the right to waive the exception in the first place (and this issue is jurisdictional).

    If that is true, it basically means that no one has tenure at religiously-affiliated universities, right? Any future administration could characterize past grants of tenure as an illicit waiver of the exception, and get rid of the tenured people without facing any consequences, right?

  3. Wondering says:

    oops, meant to say court said it was nonwaiveable.

  4. Professor Griffin appears to be more sympathetic to the federal government’s position than many of the other commentators whose opinions I have reviewed. She states that “Assistant Solicitor General Leondra Kruger tried valiantly to focus the Court’s attention on the government’s strong interest in enforcing the antiretaliation laws.” That may be true, but what is the federal government’s position on the ministerial exception? I admire Asst. SG Kruger’s legal abilities, but I must confess to difficulty in discerning the government’s arguments. This comment thread at Mirror of Justice highlights one aspect of the difficulty.