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Thursday, July 28, 2011

Questions About Consequences and Constitutionality in Hosanna-Tabor

I'm grateful to Lyrissa for her post about the Griffin/Corbin amicus brief in the Hosanna-Tabor case. I agree that it's important for a variety of perspectives to be aired on law and religion issues. Nevertheless, I have some questions and comments about their description of their brief and the reasons behind it.

What caught my attention in particular was the paragraph talking about the potentially devastating consequences of an adverse ruling in the case. That paragraph may be understandable, and even true, but it raises some serious questions about the brief.

Not to rehearse the obvious, but there is a difference under the Religion Clauses between what is constitutionally compelled and what is constitutionally permissible. Employment Division v. Smith (which I think was wrongly decided) said that a variety of religious exemptions from neutral and generally applicable laws were not constitutionally required. But it did not forbid legislatures from granting exemptions for religious believers from laws. One can conclude that the Religion Clauses do not require exemptions for religious believers even though one believes that they are absolutely vital and that legislators ought always to include them in their laws. Conversely, although fewer people take this position, one can conclude that religious exemptions from the law are constitutionally mandated even if one thinks they may lead to harmful consequences.

Given all that, I'm not sure what purpose the Griffin/Corbin line about devastating consequences serves. If they believe that legislatures would still be free to grant religious exemptions from the civil rights laws, then the consequential argument is simply irrelevant; even if the Court decides that the ministerial exception is not required by the Constitution, legislatures can still enact similar exceptions.

Then again, it may be Griffin and Corbin's position that such exemptions (presumably including existing exemptions that are already part of our civil rights laws) are not only not constitutionally required, but are in fact constitutionally forbidden, even if enacted by legislatures. I don't see any suggestion of that in the brief description of the brief offered in Lyrissa's post. But if they don't take this position, then their argument about consequences seems quite irrelevant. And if they do take this position, I would think people would want to know that before signing on to the brief. It's one thing to take the view that exemptions like the ministerial exception are not constitutionally required, and quite another to take the view that legislatures cannot grant such exemptions at all.

This raises another question, one touched on in a comment on Lyrissa's post. Reading the description of the brief, one might think that the authors of the brief think that those who have argued that the ministerial exception is constitutionally required are unaware of the possible negative consequences of the exception. I don't think that's so. Doubtless some champions of religious freedom out there take an unduly rosy view of such matters. But most of us understand that religious institutions, like any other institution (including, needless to say, the state and its enforcement agencies), are capable of abusing any discretion they are given. I personally think strong religious freedom advocates, and especially those of us who do believe the Constitution requires some exemptions from certain legal regimes for religious individuals and institutions, ought to talk more about the downsides of these exemptions. But that hardly means we are unaware of them. The question is not whether the ministerial exception and other religious exemptions from general laws are good or bad or have good or bad consequences, but whether or not they are constitutionally required. Period. It is interesting the way consequences end up working their way into these discussions. Again, that's not surprising; but it can have some significant implications for the shape and direction of the constitutional arguments in these cases.

Posted by Paul Horwitz on July 28, 2011 at 10:45 AM in Paul Horwitz | Permalink


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One would think, in the case of Hosanna-Tabor, the only reason there was a negative consequence to the ministerial exception to begin with, was because the Church failed to use Christian Charity when they ignored the part of the spirit of the Law which serves to respect and protect the Right of Religious Institutions to hire those who support the mission of the Church, not to permit the Church to discriminate against those who support the mission of the Church because they have a disability.

Posted by: Nancy D. | Oct 9, 2011 11:07:06 PM

A fair point, Marc. I do think my broader point stands. One need not have to agree that a constitutionally mandated ME would have devastating consequences to believe that it is not constitutionally mandated; one can still take that position and believe that legislatures ought to grant a statutory ME. Conversely, if one believes the Court should hold that the ME is not constitutionally mandated *because* it will have devastating consequences, then I think the argument should say so directly; at least on the description of the brief given, I don't see that argument here. And it means that if you accept this consequentialist position, you also believe the legislature should not grant these exemptions either, which again is something I think would have to be made clear in the brief. Finally, if one takes the position that the ME should not be constitutionally mandated for consequentialist reasons, then I think one must necessarily argue that a host of existing statutory exemptions, including the one upheld by the Court in Amos, are similarly invalid. In short, it seems to me that this brief either needs to abandon consequentialism altogether, or it should make clear just how broad the implications of its consequentialist approach are. Like the earlier commenter, I don't think this is a matter of bad faith; I just think it's important that we realize the full implications of the argument.

Posted by: Paul Horwitz | Jul 28, 2011 10:02:29 PM

Hi, Paul. I am not sure about the position that Caroline and Professor Griffin take, but I have seen Professor Marci Hamilton make the argument that the best way to read Smith is as establishing a regime in which legislative exemptions are generally a bad idea -- and ought not to be granted -- unless the harm to others is "de minimis." If the authors also take that view, then it makes sense for them to say that a constitutionally mandated ME would have, from their point of view, devastating consequences.

Posted by: Marc DeGirolami | Jul 28, 2011 1:23:13 PM

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