Category: Religion


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

Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?

The contested issue in Hosanna-Tabor is whether Lutheran elementary schoolteacher Cheryl Perich can sue her former employer, Hosanna-Tabor Evangelical Lutheran Church and School, for retaliation under the Americans With Disabilities Act. The school fired Perich after she threatened to report the school’s disabilities discrimination against her to the EEOC. The specific legal question is whether the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers, applies to schoolteacher Perich because the church considers her to be a minister.

Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, “doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?” That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?

Justice Sotomayor was concerned about “a church whose religious beliefs centered around sexually exploiting women and children,” which Laycock did not defend. But how can courts determine which laws must be obeyed and which may be flouted? In the past, lower courts have held that Baptist churches’ religious, Scripture-based belief that men are heads of households and therefore entitled to higher pay than women did not allow them to violate the equal pay laws; that the Shiloh True Light Church of Christ’s religious belief in children’s vocational training did not permit it to violate the child labor laws; and that the Quaker tradition of hospitality to the stranger did not allow Quakers to ignore the alien worker requirements of the immigration laws. Those cases focused on how strong the government’s interest was in enforcing the laws. The courts concluded that the government’s interest in enforcing the equal pay, child labor and immigration laws was strong enough to overcome important religious beliefs.

Read More


Does Satan Deserve a Lawyer?

In 1587, the Catholic Church established the office of Promoter of the Faith, which was commonly known as the Devil’s Advocate.  This position was occupied by a canon lawyer who was charged with presenting the case against a candidate for sainthood.  (The case for sainthood was presented by the Promoter of the Cause, or God’s Advocate.)

In 1983, Pope John Paul II changed the canonization process from adversarial to inquisitorial.  The job of Devil’s Advocate was abolished and a new official called the Promoter of Justice was created to investigate and decide on holiness claims.  As one might expect, this procedural reform led to a sharp increase in the number of saints. (About 500 during John Paul II’s reign as opposed to about 100 in the previous eighty years.)

My conclusion:  Satan is an underserved client.  I leave it to legal ethicists to determine whether he is entitled to pro bono assistance.


Critical Jewish Studies?

The first two areas I could say I had an actual scholarly interest in were Church/State law and Critical Race Theory. This wasn’t an accident — I got interest in CRT because the method of analysis it used really spoke to me as a Jew. It seemed to do a better job of capturing the various problems and barriers faced by members of marginalized groups beyond the standard, thin liberal story.

When I finally got access to Lexis as an undergraduate at Carleton, one of the first things I did was run a search for something approximating a “Critical Jewish Theory”. And I came up with … virtually nothing. With one very notable exception — Stephen Feldman at the University of Wyoming (I know, I know: Jewish studies in Wyoming — could it get any more cliched?) — it was a virtual dead-end. Even Professor Feldman’s work, which I admire and has influenced me greatly, focuses primarily on the American Church/State context. An important topic, to be sure, but hardly the only one which intersects with Jewish lives and areas of concern (international law, in particular, seems like a gimme).

Read More


Constitutional Protestantism or Constitutional Televangelism

I appreciate Doug taking up questions from my earlier post and I think he’s right about the central role elites play in interpreting constitutional texts.

I think this is yet another area where Jack’s analogy (or really, Sandy Levinson’s analogy, which Jack credits generously) between constitutional faith and religious faith, between the Bible and the Constitution, is highly instructive.  The Protestant idea that we all can read and interpret the Word for ourselves is just that—an idea.  It is an important idea for reasons I’ll say something about in a second, but it’s somewhat aspirational.  One can, and some people do, believe in the authority or even the inerrancy of the Bible without reading it much (or at all).  It is also possible to read it without understanding it very well.  Most people today report that they find Biblical text hard to understand (although the irony is not lost on me that the survey I just linked to saying so was conducted by the Vatican).

Luckily, if you have a hard time reading or understanding your Bible or your Constitution, help is on the way!  Many experts and leaders—elites, as Doug says—stand ready to help by offering interpretations, often complete with textual citations, that ordinary people can understand (and there is no need for most people to actually go look up the citations).  Very often these authorities offer their interpretations in a manner that is charismatic, memorable, and convincing.  Their interpretations are all the more convincing when they happen to square with one’s own pre-existing beliefs about what the Bible or Constitution ought to say or mean.

So does all this mean the Protestant idea has no practical effect?  Quite the contrary.  The Protestant idea has an extremely important effect.  The normative premise that we all are able to read and interpret the text for ourselves means that we do not have to trust the priests in the temple; we do not have to trust the Justices who emerge from behind the curtain of the Court.  We get to decide for ourselves who to trust, whose interpretive authority to respect.  This is, as Jack says, a great theology for dissent.  We can decide we agree with people who say that on a particular question, all nine Justices got it wrong.

This is why Jack’s conception of constitutional Protestantism is linked in a such a deep way with his account of the role social movements play in constitutional change.  But in my view, the mechanism by which constitutional Protestantism empowers social movements to make constitutional changes has little to do with ordinary people literally reading the constitutional text and coming up with their own interpretations of its meaning. Read More


A Bill To Ban Kosher Slaughtering Practices

The Netherlands is poised to vote to require animals to be stunned before they are killed, which would prohibit the sale of meat by Muslim and Jewish butchers who follow traditional slaughtering practices.  Muslim and Jewish leaders have wrung an amendment from the bill’s sponsors that would permit a five year grace period if the butcher can show that the “religious … method of slaughter causes no more pain than industrial slaughtering.”  The Netherlands would join a handful of other countries which prohibit the ritual slaughter of animals.

Matt Yglesias, whose blogging brought this to my attention, thinks that although “our political culture is hardly unaffected by bigotry or oft-violent nationalism, I’m pretty confident this would never fly here.”  I agree – at a national level – but am not so sure at a local or regional level.  As excitement about the destined-to-be-defeated circumcision ban in San Francisco illustrated, astute commentators think that the courts might not distinguish jewish or muslim claims for religious “exceptions” from generally applicable rules from previous precedents that ruled on the rights of Native Americans and Amish citizens.  (This strikes me as inaccurate – though, of course, it’s what would happen if Judges didn’t permit their biases influence their perceptions of risks and facts.)  Moreover, mainstream acceptance of foreign religious or cultural practices is (forgive the pun) skin deep – as illustrated by this disturbing comment thread at Prawfsblawg.

Yglesias is right that there’s zero likelihood of federal action motivated by vegan interest groups. That said, I can imagine some crunchy and “progressive” American town passing an ordinance exactly like this one, and thereby prohibiting Halal or Kosher butchers from operating within the city’s limits.  (Call it the Portland-Stunning-Mandate.)   Would the PSM pass constitutional review or RFRA?  Dorf’s analysis of the circumcision ban, here, suggests that the answer is “probably not.”  But maybe the analysis is different, as practicing jews and muslims don’t need to be carnivores.

(For more on kosher slaughter & whether it produces more suffering than ordinary slaughter, read Dorf.  Actually, you should probably do that even if you don’t much care about this topic.  It’s like reading Volokh, only without the turing tests.)


The Ministerial Exception Part III

In my previous blogs, I explained the basics of this judicially-created doctrine, and argued that the ministerial exception can’t really be justified by either the Free Exercise or the Establishment Clause. The main Establishment Clause justification for the ministerial exception is the fear that in adjudicating discrimination claims, courts will become entangled with theological questions or endorse one religious vision over another. In this last post, I want to argue that application of the ministerial exception can entangle a court in religious doctrine more than application of anti-discrimination law.

For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: is a teacher at a religious school who mostly teaches secular subjects but also leads students in prayer and teaches a religion class a ministerial employee? Courts do not simply defer to a religious organization’s characterization of a position, as it could insist that all its employees were ministers. Instead, courts have taken a functional approach, looking at the main duties of the employee, and essentially asking whether plaintiff’s job “is important to the spiritual and pastoral mission of the church.”

In order to decide whether a position is “important to the spiritual and pastoral mission of the church,” however, a court might have to delve into the religious beliefs of a particular religion. In ruling that a church’s music director was a minister, for example, the Fourth Circuit analyzed the religious significance of music. The plaintiff argued that she was not a ministerial employee because she merely taught people to sing and perform music. The court disagreed, noting that “music serves a unique function in worship” and concluding that the music director’s job was “an integral part of Catholic worship and belief.” In reaching this determination, the court did exactly what the Establishment Clause forbids: choose between competing religious visions. In the plaintiff’s vision of the Roman Catholic faith, music’s significance did not rise to the level of ministry, such that teaching it made her a minister. In the defendant’s vision, it did. The court essentially resolved a religious dispute about the role of music. Hosanna-Tabor potentially presents a similar risk. In determining whether Perich is a minister or not, the Supreme Court may end up resolving a religious dispute about the role of school teachers in Evangelical Lutheran Church schools.

Read More


Ministerial Exception Part II

In my previous blog on the ministerial exception, I explained the basics of this judicially-created exception. In this blog, I take a more partisan view, and argue that the religion clauses do not justify the ministerial exception. To the extent that church-clergy relations are protected, they should be protected under the freedom of association guaranteed by the Free Speech Clause.

Does the Free Exercise Clause require the ministerial exception?

The simple answer is: not after Employment Division v. Smith. Employment Division v. Smith held that as long as a law is neutral and generally applicable, it does not violate the Free Exercise Clause even if it imposes a substantial burden on religion. Smith itself upheld a law that made illegal a religious sacrament. Since few would dispute that anti-discrimination laws such as the Americans with Disabilities Act are both neutral and generally applicable, Smith should defeat any free exercise justification.

Nonetheless, lower courts have uniformly argued that Smith only applies to individual free exercise claims and not institutional free exercise claims. The arguments for this distinction are not persuasive, and they can be understood as the lower courts’ attempt to limit the impact of the unpopular Smith decision. For example, courts cite to a line of Supreme Court cases addressing church property disputes as precedent for church autonomy. Yet they overlook the Supreme Court’s most recent church property case, Jones v. Wolf, which actually applies a “neutral principles of law” approach more in line with Smith than the older cases that deferred to church hierarchies.

Doesn’t the potential entanglement with religion mean the Establishment Clause requires the ministerial exception?

The Establishment Clause may be violated if a court were to independently evaluate a minister’s spiritual or theological qualifications. For example, the court would act beyond its competence if it were to hold that a church was wrong to fire a choir director for her choice of music because the music chosen was in fact perfectly suitable for Sunday services. However, it is a mistake to assume that resolving anti-discrimination cases will lead courts to substitute their judgment for that of the religious institution on spiritual and theological matters. To start, many discrimination suits do not present any religious questions. In addition, this fear overlooks a substantial body of anti-discrimination law that ensures that courts assess only matters well within their competence. In other words, when evaluating a claim that a professor was wrongfully denied tenure, courts will consider objective data, but they will not second-guess the employer about subjective professional qualifications.

Take the retaliation claim at issue in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In terminating Cheryl Perich, Hosanna-Tabor cited issues related to her health and its disability leave policy. No mention was made of any spiritual shortcomings. Therefore, as the Sixth Circuit concluded: “a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”

Are churches never immune from anti-discrimination suits?

Even though the religion clauses may not justify the ministerial exception, the freedom of association might shield religious organizations from some anti-discrimination claims brought by ministers. Proponents of the ministerial exception argue that religious organizations must be able to freely select their ministers and religious leaders. The freedom of association protects that choice: especially after Boy Scouts of American v. Dale, the freedom of association protects the right of all associations, religious and nonreligious, to choose leaders who will properly represent and convey the association’s message, even if it means violating anti-discrimination law. In Dale, the Supreme Court allowed the Boy Scouts to discriminate on the basis of sexual orientation on the grounds that gay Scoutmasters would undermine the Boy Scouts’ anti-homosexuality message.

At the same time, Dale makes clear that an association seeking immunity from a discrimination claim must have a message that would in some way be impaired by compliance with that anti-discrimination law. Thus, a church may assert immunity from a minister’s discrimination suit only if it first argues that its religious tenets require that discrimination. Religious organizations whose beliefs are consistent with anti-discrimination law cannot complain that compliance interferes with their expression. Unless Tabor-Hosanna argues that a disabled minister will undermine its religious message, Perich should be able to sue the religious school for violating the American with Disabilities Act.


Corbin on The Ministerial Exception, Part I

Professor Caroline Mala Corbin has kindly agreed to shed light on the ministerial exception raised by an upcoming Supreme Court case.  She brings significant expertise to the issue: see her excellent Fordham Law Review article Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law.  Her insights will appear in three parts; the first appears below.  Our readers know Professor Corbin from her enlightening guest visit, and we are grateful to her for sharing her thoughts with us.

Earlier this week, the Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case involving the ministerial exception (also known as the ministerial exemption).   In this blog, I thought I would answer some basic questions about the ministerial exemption.  In later blogs, I want to suggest that the religion clauses don’t really justify it, and that furthermore, application of the ministerial exception can cause more Establishment Clause problems than resolution of a discrimination claim.

What is the ministerial exception?

The ministerial exception is a judicially-created doctrine that grants religious employers immunity from discrimination claims brought by their ministers.  While anti-discrimination laws like Title VII and the Americans with Disabilities Act allow religious employers to discriminate on the basis of religion in employment decisions, these statutes make it illegal for religious employers to discriminate on the basis of race, sex (Title VII), or disability (ADA).  In other words, under these statutes, a Lutheran school may refuse to hire someone because she is not Lutheran, but it cannot refuse to hire her because of her disability.

Lower courts, however, have held that it would violate the religion clauses to allow ministers to sue their religious employers, and therefore created the “ministerial exception” to antidiscrimination laws.  Notably, the ministerial exception applies regardless of whether or not the alleged discrimination was religiously motivated.  As a result, a minister cannot sue for race, sex, or disability discrimination even if her employers’ own religious tenets forbid discrimination on these grounds.

When does it apply?

The ministerial exception does not preclude all employees of religious organizations from bring employment discrimination claims, only employees who are considered “ministers.”   “Ministers” are not limited to ordained clergy.  Instead, the courts have taken a functional approach to determining who counts as a minister. If an employee’s “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered clergy.” Under this test, courts have found that school principals, schoolteachers, music teachers, choir directors and press secretaries, among others, are ministers.

The plaintiff in Hosanna-Tabor Evangelical Church and School v. EEOC was a teacher at a religious school who brought an ADA retaliation claim. At issue in the case is whether she should be considered a minister or not.  While she spent most of her day teaching secular subjects, including math, language arts, social studies, science, gym, art, and music, she also taught a religious class and led her class in daily prayers.

What justifies the ministerial exception?

Courts have variously identified the Free Exercise Clause, the Establishment Clause, church autonomy or the religion clauses together as necessitating the ministerial exception.  In deciding EEOC v. Hosanna-Tabor Evangelical Church and School, for example, the Sixth Circuit wrote that “the ministerial exception is rooted in the First Amendment’s guarantees of religious freedom.” Read More


Employment Division v. Smith

There was a story yesterday about an effort to put a proposition on the San Francisco ballot that would ban male circumcision of children.  Advocates of the ordinance consider the practice a form of child abuse.  Jewish groups, naturally, are opposed.

If such an ordinance were approved, it seems clear that it would be constitutional under the Supreme Court’s analysis in Employment Div. v. Smith.  Smith held that “the right to free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”  In other words, the fact that the circumcision of infant boys is central to the Jewish faith does not create a constitutional privilege from a local ordinance banning the practice (unless you could show that the law was intended as an attack on Jews).

I think that Smith was wrongly decided.  The reason it has stood for as long as it has is that only unpopular religions have been impacted by the case.  A neutral law that hurts a more popular faith (e.g., a total alcohol ban in a town that made holding Catholic Mass impossible) such as the proposed SF ordinance would, I think, lead to a swift about-face by the Court.

My book on Jacksonian Democracy discusses Smith because “disparate impact” and religion was raised during the Cherokee Removal crisis, though the Court was evidently unaware of this precedent when it decided Smith.  Georgia passed a statute that required all whites who wanted to enter the tribal area within the state to swear a loyalty oath to the State.  The Protestant missionaries who wanted to work with the Tribe refused and some were prosecuted and sent to jail.  Their supporters claimed that the Georgia law violated the freedom of religion (not as a federal constitutional matter, but in general). The Georgia legislature issued a report that essentially advanced the Smith rationale:

“The law which has excited so much feeling among our brethren of the eastern states is not partial or exclusive in its operation. . . . Our law in this, as well as other cases, aims at no individuals, and recognizes no exemptions.  Your committee therefore declare that no objection can be urged against the State, with any propriety, upon the score of its inequality, for the State made all men ‘equal under the law.'”

Overall, the debate about the imprisonment of the missionaries tends to undermine Smith, but I can’t do justice to that in a post.


Book Review: Hirschl’s Constitutional Theocracy

Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010), pp.249, $45.00

Religion-state relations have always been a staple topic in comparative constitutional law scholarship. This is, however, the first work that takes a broad and comprehensive overview of a not-so-new but largely ignored landscape which Ran Hirschl calls “constitutional theocracy.”  This term describes and at the same time, zeroes in on the basic issue that form part of every dilemma with regard to the proper relationship between religion and state.  How does one reconcile divine and man-made law?

In this counterintuitive, rich and fascinating book, Hirschl identifies the prevalence of a new form of political phenomenon called a constitutional theocracy which he situates at the intersection between a pure theocracy and a liberal constitutional democracy. According to him, constitutional theocracy has four elements: first, it adheres to elements of modern constitutionalism including judicial review, second, there is usually an established state religion, third, the religion and its corresponding texts are considered sources of state legislation, and lastly, parallel religious tribunals exist alongside the civil adjudication system.

The conventional understanding is that we should view this development with caution. Hirschl identifies that view with local secular elites who see religion with disdain, both for its seeming irrationality and its propensity for unpredictability. Paradoxically, the solution that secular elites came up with is to embrace this development. To constitutionally incorporate religious symbols and directives is ultimately the most prudent and rational response to the pressures brought about by the rise of political religion. For one, it facilitates the deployment of various means of political control, such as delegation and cooptation. To get from one to the other, Hirschl’s previous work on the origins and consequences of new constitutionalism offers a clue.

In Towards Juristocracy, Hirschl advanced the hegemonic preservation thesis in which threatened political elites who seek to preserve or enhance their hegemony empowered the judiciary to decide even highly political matters in order to insulate policy-making processes from the vicissitudes of democratic politics. One can see similar themes at play in his new book, particularly the divide between secular elites and the religious masses, and the peculiar role of constitutional courts in managing political hot potatoes, which, in this setting, refers to religion.

Read More