Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, October 14, 2011

More Questions: the Government's Position in Hosanna-Tabor

By Marc DeGirolami

It has been difficult for me to get a fix on the government's position in Hosanna-Tabor.  I posted some initial questions about it here.  Leslie Griffin offers thoughts about what Assistant SG Kruger should have said, but did not say, here.

Here is another piece of the puzzle (courtesy of Chris Lund, with whom I've been trying to hash some of this out), from the government's brief (40-41):

Cases in which the religious employer offers a reason relating to an evaluation of the plaintiff's performance of religious functions for an adverse action pose the greatest risk of entanglement.  If, for example, Petitioner in this case had claimed it fired Perich because she was insufficiently spiritual, it would be constitutionally problematic for Perich to challenge that assessment in precisely the same way that an employee of a nonreligious employer might attempt to challenge a comparable subjective defense in a secular setting, e.g., that she was insufficiently professional.  By contending that she was in fact just as spiritual or more spiritual than other teachers, Perich's claim would risk entangling the Court in religious questions beyond its adjudicative capacity.  In such cases, the district court could limit the pretext inquiry to cordon off challenges to the religious organization's religious assessment.  If Plaintiff's only pretext evidence consisted of a challenge to that assessment, then the suit might have to be dismissed altogether.

I'm having trouble with this view -- not even from the point of view of agreement or disagreement, merely from the perspective of understanding it.  Some questions after the jump.

Continue reading

Gay Weddings: A Note on Town Clerks, Florists, and Photographers in Response to Dorf

By Steve Shiffrin

May a Town Clerk with religious objections to gay marriage assign the task of recording the marriage to a Deputy Clerk? Mike Dorf says no, in part because the act of recording is so remote from the marriage itself. There is a sense that the Clerk is excessively fastidious.  Similar arguments underpin the idea that the state may tell florists and photographers that they may not discriminate on the basis of sexual orientation and that they may be required to participate in gay marriages even if their religion forbids them to do. But the question should not be what society regards as too remote, too principled, too fastidious, too crazy, or too offensive. The free exercise clause protects those with extreme ideas of what counts as participation and it protects religions that from the perspective of society are too principled, too fastidious, too crazy, and too offensive.

The key question is whether the religious claimant sincerely objects on the ground that he or she is morally obligated to perform or not to perform a particular act. Just as the free speech clause protects the speech we hate, the free exercise clause protects extremists. Of course, sincere religious claimants will not always be protected. As Dorf observes, a postal employee has to deliver mail that facilitates conduct she believes to be immoral. Quakers are required to pay taxes for wars they (rightly) believe to be immoral. Contrary to Dorf, there is an important difference between these cases and the Town Clerk case, and the cases he cites do not turn on the remoteness principle. The difference is that it is unreasonable to expect the post office to accommodate the postal worker’s religious objections by hiring additional employees. And the risk of free riders is too great to permit religious objectors to opt out in large part because many with no religious objections to paying taxes would suddenly find “religion.” In the Town Clerk case a reasonable alternative is readily available.

crossposted at religiousleftlaw.com together with another post in response to Dorf's contention that religious objections to gay marriage should not be valued as highly as other religious objections

Quote of the Day on the Ministerial Exception

By Michael Moreland

The invaluable SCOTUSblog site has been running a series of discussions on the cases pending before the Supreme Court this term, including the (much discussed here at MOJ) ministerial exception case, Hosanna-Tabor v. EEOC. Read the whole exchange (including the contributions from our own Tom Berg), but I thought this brief comment by Kevin Baine of Williams & Connolly--one of the best lawyers I've ever had the privilege of working with--was a powerful and pointed summary of the issues:

The fundamental question in this case is whether those who seek to serve a church in a religious capacity may invoke the power of the state in support of their desire to serve—or whether the church has the right to choose those who perform religious functions without regard to secular standards and without interference by the state. I think the Religion Clauses answer that question. If the notion of separation of church and state means anything, it means that there is a zone of church affairs that the state is powerless to regulate, and I think that zone has to include the right of a church to select its ministers. The state should no more be able to set the criteria for church office than the church should be able to set the criteria for state office.

Thursday, October 13, 2011

President Obama: Past Promises and Current Actions on Mandates and Conscience

By Greg Sisk

Below Rick Garnett posts about the ad by various Catholic leaders in "The Hill" that calls for protection of conscience and criticzes the Obama Administration's promotion of a rigid mandate for all health insurance plans to cover sterilizations and abortifacient contraceptives.

On the St. Louis Today website, Colleen Carroll Campbell asks what happened to President Obama's very public overtures to Catholics, during the presidential election and afterward, and assurances that he respected pro-life Catholics and religious conscience.  Herewith an excerpt:

The mandate and its lack of conscience protection is a blatant attack on religious freedom and a far cry from the promise Obama made at the University of Notre Dame in 2009. Back then, when the president was peddling his health care plan and pledging to seek "common ground" with pro-life Catholics, he vowed to "honor the conscience of those who disagree with abortion, and draft a sensible conscience clause." Now that Obamacare has passed, the president and his surrogates are singing a different tune.

"We are in a war," Health and Human Services Secretary Kathleen Sebelius told a NARAL Pro-Choice America crowd in Chicago last week.

 So much for "common ground" and respect for conscience.

America's Greatest Catholic Intellectuals

By Michael Moreland

The Gregorian Institute at Benedictine College in Kansas conducted a survey to identify the ten greatest intellectuals in American Catholicism for their Catholic Hall of Fame, and the list of those from "the world of ideas and academic scholarship" includes an MOJ blogger:

  1. Orestes Brownson (1803–1876)
  2. John Courtney Murray (1904-1967)
  3. John Senior (1923-1999)
  4. Avery Dulles (1918-2008)
  5. James Schall (1928-)
  6. Ralph McInerny (1929-2010)
  7. Richard John Neuhaus (1936-2009)
  8. Mary Ann Glendon (1938-)
  9. George Weigel (1951-)
  10. Robert P. George (1955-)

They note that future categories will include fiction authors (Flannery O'Connor, e.g.) and bishops, but my offhand additions (heavy on philosophy) would be Alasdair MacIntyre (not an American by birth--neither was Neuhaus--but he has spent the last 40 years or so in posts in US universities), John Tracy Ellis, Nicholas Rescher, John Zahm, and Bas van Fraassen.

CLE in Israel

By Rick Garnett

MOJ readers who are lawyers, and who are in need of CLE credits, might be interested in these opportunities, provided by Touro Law School, to take CLE courses in Israel this summer.  (Thanks to Sam Levine, at Touro, for the information.)

Wednesday, October 12, 2011

Helping parents to be parents

By Patrick McKinley Brennan

Jack Coons has long been one of our nation's most articulate and, to my mind, persuasive defenders of law that helps parents to be parents by allowing them to send their children to schools that they judge to be best for their children. It's easy for the rich to send their children to the best schools. Non-rich parents need the help of good law. Jack and his allies in the project of guaranteeing parents' opportunity to choose their children's schools have advocated, season in and season out, law reform that will meet the needs of non-rich families. Jack's most recent defense of "school choice" can be found here.  It deserves a wide circulation.

SCOTUS Blog Discussion on Ministerial Exception

By Thomas Berg

As the national conversation discussion on church autonomy, the ministerial exception, and the Hosanna-Tabor case continues, the SCOTUS Blog has begun a discussion in its new "Community" pages.  My lead-off comment is here.  In it, I reason toward the broad ministerial exception from the proposition that the Catholic Church can't be forced to hire women priests--a proposition seemingly accepted by everyone at oral argument (but not, sadly, by everyone involved in the public discourse on this issue).  I also thought it important to note in conclusion that

several justices were rightly incredulous at the government’s argument that this is simply an expressive association case--that the two Religion Clauses set no special rules for the relationship between a religious organization and the employees who perform its religious functions. Justice Kagan called the argument “amazing”; Justice Scalia, “extraordinary.” The Court should recognize the obvious: there are ways in which religious organizations are constitutionally different. Moreover, the differences are not exhausted by the rule that courts cannot make theological determinations (although that rule is relevant here too). Forcing the Catholic Church to accept women priests might require no such determinations--simply a ruling overriding the Church’s clear tenet. Yet everyone conceded it would be unconstitutional. At bottom, then, religious organizations have a distinct constitutional freedom to be able to determine who is qualified to serve as a minister.

Reid on State v. Walker

By Marc DeGirolami

If you have a little time to spend with this paper by Prof. Charles Reid, I highly recommend it.  It's a historical treatment of a late-nineteenth century Kansas case which, Prof. Reid argues, was one of the first to grapple with some of the ideas of privacy which have since become watchwords of our substantive due process law.  It's a long piece, and I haven't finished it yet, but it's well worth it and loaded with interesting historical nuggets. 

Duffy, "Ten Popes Who Shook the World"

By Rick Garnett

I'm definitely looking forward to this book (though it seems to me an oversight to leave out Pope Leo XIII).

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive