UPI reported an update earlier this week on Association for Molecular Pathology, et al. v. USPTO--the Myriad human gene patenting case:
Genetic Engineering & Biotechnology News in a March 23 analysis said the uncertainty in the United States over Myriad's patents, and similar challenges in Australia -- where legislation is being introduced to prevent the patenting of human genes and biological materials that are substantially identical to that in nature, even if they are isolated -- should not affect the status of gene patents in Europe "even if additional requirements are imposed on patents claiming genetic material."
This one is worth watching. Most likely the issue will go to the Supreme Court next year.
Here is a short post I did, for Liberty magazine's website, on the ministerial-exception case. Others will be posting soon, too.
Almost everyone agrees (as, I believe, they should) that the First Amendment imposes some limits on the application of anti-discrimination laws to the employment relationship between churches and their ministers. Indeed, if the "separation of church and state" means anything, it would seem to mean that the government cannot tell a religious community who will transmit its teachings, resolve doctrinal questions, conduct and plan liturgy and worship, and lead its members.
The hard question, then, is how to craft reasonably clear, usable doctrines that will capture, and give effect to, the basic principle that one dimension of religious freedom is the freedom of religious communities to choose their own ministers. It would not be enough to say that only "ordained, full-time clergy" are covered. (Indeed, such a narrow exception would, in practice, treat some religious traditions and communities worse than others.) On the other end of the doctrinal spectrum, it is probably not necessary to say that "every person who is employed by a religious institution" is a "ministerial employee." The doctrine – in this case, the "ministerial exception" – needs to be crafted with an eye toward actually protecting the values that are at stake, and avoiding the pitfalls that come with government intrusion into religious matters.
In the Hosanna-Tabor case, the former teacher who brought the case should clearly have been covered, and the Court will almost certainly so rule. To say that a teacher who serves as a "commissioned minister", who teaches some religious-education subjects, and who regularly leads students in prayer and worship is not covered because the total number of hours she spends on "secular", as opposed to "religious", tasks is to completely miss the point of the exception and to dramatically under-protect the religious-freedom values that are at stake. This particular case, in other words, should be an easy one.
But, what should "the rule" be? Answering this question, in a way that will be helpful to judges deciding other cases, will be a challenge. At a minimum, though, the rule should protect the rights – which the Court has recognized in other cases -- of religious communities to govern themselves, to resolve religious questions, and to select religious spokespersons. It should avoid entangling secular courts in religious disputes or interfering with the core freedom of religious communities to select who will perform spiritual and religious functions.
To say that the ministerial exception is important, and that it should be respected and broadly understood, is not to condone "invidious" discrimination, or to imagine that religious institutions are somehow "above the law." (They are not.) It is to say, though, that there are some questions that secular courts lack the power – not just the capacity – to answer.
Two recent comment threads (here and here) have struggled with the application of subsidiarity in the American legal context, including its application to the District of Columbia. Sandy Levinson ratchets up the rhetoric a bit in a post titled "Obama as Colonial Master." An excerpt:
Thanks to the Constitution, the District of Columbia has an anomolous status. It is, for some purposes of federal jurisdiction, a "state," and, of course, thanks to the 23rd Amendment, DC gets three electoral votes. However, as any resident of DC emphasizes, it continues to be treated as a ward of the national government, the equivalent of a colony without voting representation in the House or Senate or, more to the point, any of the autonomy that is presumably attached to being a state in our particular federal system. . . .
The City Council of DC has voted to spend the tax money of its own citizens to help pay for abortions of presumably poor and vulnerable women. Whatever one's views on abortion, there's no doubt at all that what John Marshall once called a "sovereign state" could choose to spend its own tax dollars on such a public policy (unless, of course, the Court holds that fetuses are "persons" protected by the Fourteenth Amendment, which not even Scalia has advocated). Only a colony, without any rights that the administering power need respect, could be prevented from passing such a program.
. . . . Barack Obama betrayed not only his contituents in DC, but also his ostensible and ostentatious devotion to "democracy" around the world by acquiscing to the denial of self-government to the District of Columbia.
Maybe abortion is not the best context in which to grapple with the issue, but it still presents the question: is the status of DC a problem for those who take subsidiarity seriously?
[A]pplication of anti-discrimination laws like the ADA never requires that kind of direct grappling with religious doctrine or beliefs. Indeed, anti-discrimination cases may present no religious issues at all. To the extent they might, courts need not resolve theological disputes such as what role music or schoolteachers play in the church. Instead, they would be deciding whether a legitimate religious reason or an illegitimate secular reason (discrimination) motivated an employment decision. For example, imagine a church fires a teacher who has an extramarital affair, arguing that she violated the church’s proscription against sex outside marriage. In a sex discrimination case, the issue of whether sex discrimination has occurred depends on whether the school applies the religious policy equally to male and female teachers. The court will not have to resolve any doctrinal dispute or otherwise evaluate the religious merit of the proffered reason: no one questions the school’s religious belief that sex outside of marriage is forbidden. The court need not evaluate the plaintiff’s spirituality because no one disputes she engaged in forbidden conduct. The only question to be decided falls well within the court’s competence: determining whether the plaintiff’s evidence establishes that men and women were treated the same on this issue. In other words, the court judges the credibility of a religious reason, rather than whether something is religiously true. Judging the credibility of a proffered reason is within the court’s role and expertise. Resolving religious questions is not.
My view is different, but I'd welcome hearing from readers in the comments!
The folks at Public Discourse have made available a version of a lecture that Archbishop Charles Chaput gave at Notre Dame recently. The lecture was part of a new Right to Life Lecture Series (organized by the students). Very much worth a read. A taste:
. . . All law in some sense teaches and forms us, while also regulating our behavior. The same applies to our public policies, including the ones that govern our scientific research. There is no such thing as morally neutral legislation or morally neutral public policy. Every law is the public expression of what somebody thinks we “ought” to do. The question that matters is this: Which moral convictions of which somebodies are going to shape our country’s political and cultural future—including the way we do our science?
The answer is pretty obvious: if you and I as citizens don’t do the shaping, then somebody else will. That is the nature of a democracy. A healthy democracy depends on people of conviction working hard to advance their ideas in the public square—respectfully and peacefully, but vigorously and without apologies. Politics always involves the exercise of power in the pursuit of somebody’s idea of the common good. And politics always and naturally involves the imposition of somebody’s values on the public at large. So if a citizen fails to bring his moral beliefs into our country’s political conversation, if he fails to work for them publicly and energetically, then the only thing he ensures is the defeat of his own beliefs. . . .
I was lucky to have had the chance to read, and learn from -- and even more blessed to have met and spent time with -- Prof. Milner Ball. What a great, good man. Read more about him here. He passed away on April 6. R.I.P.
Consider also reading this paper, by Avi Soifer, about Milner and his work. Or, this book -- "Called by Stories: Biblical Sagas and Their Challenge for Law."
The Notre Dame Journal of Law, Ethics & Public Policy annually publishes a volume comprised of two issues exploring the legal, ethical, and moral considerations of current policy debates within the framework of the Judeo-Christian intellectual tradition.
This coming year, the volume will include the following:
(1) A symposium on regulatory adoption of corporate governance principles rooted in Catholic Social Thought.
(2) A general topic format with articles on a variety of topics related to our mission. The Journal is especially interested in capturing some of the issues likely to be raised in the upcoming election cycle, including alternative and green energy; human rights and the popular uprisings in the Middle East and Northern Africa; immigration; and government spending, austerity measures, and the effect on the poor. This is not an exhaustive list.
The Journal is unique among legal periodicals because it examines public policy questions within the framework of the Judeo-Christian intellectual and moral tradition. The Journal has a national audience of persons actively involved in the formulation of public policy, and often includes timely pieces from a broad spectrum of prominent scholars and officials. . . .
The Journal’s unique focus is widely recognized, as demonstrated in citations to the Journal by various state and federal courts, including the United States Supreme Court.
If you are interested in submitting a piece to be considered for publication, please contact Samantha Dravis, Solicitation Editor at (703) 899-9379, or via e-mail at [email protected].
I worry sometimes that Rob Vischer and I are the only people who take subsidiarity seriously. We seem to be amid a subsidiarity renaissance, though, when I see Rick Hills invoke it a recent blog post and come across pieces by Heather Gerken and Daniel Halberstam broadly gesturing in the direction of, in Russell Hittinger’s term, "the sociality of society." As Hittinger puts it, “[T]he point of subsidiarity is a normative structure of plural social forms....To be sure, subsidiarity is often described or deployed in a defensive sense--as to what the state may not do or try to accomplish--but the principle is not so much a theory about state institutions, nor of checks and balances, as it is an account of the pluralism and sociality of society.” Here is Gerken on her project in the Harvard Law Review Supreme Court Foreword (“Federalism All the Way Down”):
Even as I join the nationalists in insisting on the center’s ability to play the national supremacy card, my account elides the principal-agent distinction, privileges messy overlap over clear jurisdictional lines, and understands power to be fluid, contingent, and contested. I celebrate the fact that Tocqueville’s democracy fails to produce Weber’s bureaucracy. I argue that division and discord are useful components of an integrated policymaking regime and a unified national polity. All of these claims push up against a conception of national power that is as deeply rooted in sovereignty as is federalism’s conventional conception of state power.
