I was pleased to take part last night in an event at St. John's Law School dealing with the ministerial exemption and the Hosanna-Tabor case. The case and the doctrine have been discussed a good deal already, but for those who can't get enough, here are some additional scattered thoughts.
1. A perhaps somewhat pedantic point about names first. I prefer "ministerial exemption" to "ministerial exception." From what I have seen in the briefing of the case, I am in the great minority. My reasons are historical and linguistic. The historical reason is that the doctrine of the ministerial exemption first arose in American law in the McClure case out of the Fifth Circuit in 1972, and was in some measure a reaction to the 1964 Civil Rights Act. At that point, the free exercise approach in operation was the substantial burden/compelling interest test announced in the 1963 case, Sherbert v. Verner. The idea was that "exemptions" from generally applicable laws are constitutionally required in certain circumstances, and the ministerial "exemption" was part of the general doctrinal geist.
One might say, well, "exception" really means the same thing as "exemption," but I do not think that's right. An exemption is an immunity, and so conveys the sense of being set apart or in an entirely different category. An exception conveys none of these things: that which is excepted is ordinarily, as a matter of course, in the single, unified category. Title VII and other anti-discrimination laws contain "exceptions" for religious discrimination by religious entities; they do not contain exemptions for those entities, because their fundamental point of departure is that religious institutions are generally in the same category as any other organization. The fact that one is in the exempted -- and therefore (conceptually, jurisdictionally, institutionally) distinct -- category does not necessarily mean that one is untouchable by the state. In fact, I tend to take a somewhat less absolute view of the ministerial exemption than do some folks (folks whom I greatly respect). But it does suggest something of substance that is different from an exception.
I also recognize that as of Employment Division v. Smith, free exercise took a different turn. There were no longer any constitutionally required exemptions from generally applicable laws. But this only underlines the point that the historical soil in which the ministerial exemption took root was the 1960s-70s Sherbert framework, not the Smith framework. It's true that people have made interesting, though somewhat problematic, arguments that Smith only dealt with individual claims of religious exemption, and that it therefore did not address institutional exemption (and here I think Caroline Corbin's sharp arguments against this position are well worth considering). But the bottom line for me is that the notion of an exemption is a much easier fit with the doctrinal history that preceded Smith. And it is better -- more historically and linguistically precise -- to reserve the idea of an "exemption" for something like the ministerial exemption, while using "exception" for something like a statutory carve-out (assuming, of course, that one believes that there ought to be a ministerial exemption at all).
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Sunday, October 2, 2011
It's clear enough that Maureen Dowd disagrees with several of Justice Scalia's views: abortion, co-ed college dorms, capital punishment, and attendance of the Justices at the Red Mass are among them (though I don't think that Justice Scalia has expressed any public view on the last of these, though I may be wrong). It's not exactly clear to me whether she disagrees with Catholics expressing their views as such, or disagrees with the subjects about which they choose to express themselves, or disagrees with the positions that they stake out, or all three.
Just a quick note on the complex doctrine of cooperation in evil, which I am sure many have discussed here at MOJ over the years, and about which many here will know much more than I.
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Friday, September 30, 2011
Please forgive this not-quite-Catholic-legal-theory post, but as a dyed-in-the-wool Red Sox fan since childhood (and especially since the 1986 series), I can't help but feeling a certain sense of peace descending on me in the last few days. That might sound perverse: the team collapsed in epic fashion, its closer blew it...huge, the manager is on his way out (of his own volition, it seems), the despised Yankees are off chasing their 36,000th title, the underfinanced Rays somehow snuck in, our overfinanced outfielder was a bust , and a general sense of hopeless depression has set in.
But my 8 year-old son, who was alive for the 2004 and 2007 seasons but insensible of them, was wearing his bright-red Carl Crawford t-shirt yesterday here in Yankee territory -- not proudly...just wearing it. And he has now been properly initiated into Red Sox fan-dom.
To be a Red Sox fan is to expect pain, to be waiting for misery, to exist in a perpetual state of pessimism. It is to be sure that your team will lose when others are sure it will win -- just because you didn't like the way somebody swung the bat or because of a twitch in the short reliever's throwing motion -- so sure that you turn off the set with your team well ahead. And sure enough, they do lose, and the sweet satisfaction of sports misery resets itself again and again. It never felt right to be winning, prepossessing, cheerful, hopeful. It was awkward, unnaturally prideful, and swollenly optimistic. It reflected the sense that we could improve on our past, escape our true nature, progress.
That's not who we are. This feels much better.
Thursday, September 29, 2011
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? [x-posted CLR Forum]
Wednesday, September 28, 2011
On October 10, Professor Sanford Levinson will deliver the inaugural lecture in what looks like a wonderful lecture series at the Jewish Law Institute at Touro Law Center, directed by MOJ friend, Sam Levine. Professor Levinson will speak about his well-known book, Constitutional Faith, which has been reissued with a new afterword by Levinson, as noted here.
Tuesday, September 27, 2011
It isn't too often that the subject of mens rea and mistake of fact and law appear in mainstream media accounts, but this piece in the Wall Street Journal is an exception. The piece's main point is the erosion of mens rea in various new federal laws. I have reservations about the current 'too-many-laws' trope. I very much agree that some new laws are unnecessary and I also am generally uncomfortable with punishment practices which do not depend on a healthy dose of moral culpability as their primary justification. But I think that there are pockets of under-criminalization as well as over-criminalization and that one needs to take the claim of over- or under-criminalization case by case.
The article also mixes together a number of issues which make the over-criminalization claim appear stronger than it is. For example, it tells the story of a person who was convicted of possession of a weapon by someone previously convicted of a misdemeanor domestic violence offense. The article says that this person "hadn't been told of the new law" and presents this fact as somehow unfair and further evidence of a new problem of over-criminalization. But this is wrong. It has long been the case that mistake of law is generally not a defense: ignorance of the law is no excuse. There are exceptions to the rule, such as where a person is charged with a specific intent crime -- e.g., willfully failing to file tax returns. In those circumstances, a mistake about whether the law applies to one's conduct does excuse, because the law itself requires a person to act "willfully." But this is not such a crime. It's simply possession of a gun, a general intent offense. People are not required to be informed that specific laws exist which might apply to them (the law must be published, of course, to give them notice); they are required to make efforts to find out about the law on their own, and that is a perfectly sensible rule. The fact that this guy didn't know about the law is his fault, and certainly not an indication of over-criminalization.
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Monday, September 26, 2011
Two problematic laws, one in England, one in France.
First, Religion Clause blog discusses a situation in Lancashire, in which the police told the owner of a private business, the Salt and Light Coffee House, that the display of various Bible verses on a TV screen at the back of his cafe violates an ordinance which prohibits, among other things, "distress[ing]" or "alarm[ing]" displays.
Second, Paris has enacted a law which prohibits prayer in the streets. As detailed here, it seems that the issue is not so much the general obstruction that any unregulated public gathering would pose, but the specifically objectionable act of public religious expression as such, which, according to the report, "hurts the sensitivities of many of our fellow citizens" and is undignified.
