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Thursday, July 28, 2011

"Things that are not Caesar's" . . . and the ministerial exception

Following up on Paul's and Lyrissa's posts:  Here is a link to the chapter, which I contributed to a volume of First Amendment Stories (edited by Andy Koppelman and me), on the Court's decision in Kedroff v. St. Nicholas Cathedral.

This chapter, from Foundation Press’s forthcoming volume First Amendment Stories, examines closely the background, context, and implications of the Supreme Court’s underappreciated but highly significant decision in Kedroff v. St. Nicholas Cathedral. It is suggested that Kedroff – like the Steel Seizure case, which was argued and decided during the same year – reminds us of the importance of the structural devices employed in our Constitution to protect liberties and enhance democracy. These devices include, of course, the separation of powers and federalism, as well as the pluralistic principle of church-state separation, correctly understood. As Mark DeWolfe Howe observed, in a short essay published in the Harvard Law Review soon after the Kedroff decision, the Court in that case, by affirming the constitutional basis of church autonomy, engaged “a classic problem of political theory,” that is, the “pluralistic thesis . . . that government must recognize that it is not the sole possessor of sovereignty,” or, as another writer put it, that “Caesar . . . is only Caesar, [and so should] forswear any attempt to demand what is God’s.”

In the chapter, I (among other things) offer a different "take" on the church-autonomy principle, and the ministerial exception, from the one offered in Caroline and Leslie's amicus brief.

In any event, keep your eyes open for the volume, which has a lot of really good pieces in it, by a diverse array of smart and interesting people.  (I note that Prawfsblogger Paul Horwitz has a great chapter on the football-prayer case.)  It's winding its way toward publication in the early Fall of 2011.  Go ahead and pre-order yours!

Posted by Rick Garnett on July 28, 2011 at 03:44 PM in Rick Garnett | Permalink


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