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Monday, August 15, 2011
What's in a Name?
A group calling itself Law and Religion Professors has filed an amicus brief in support of the EEOC in the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. It's available on Westlaw and is well worth reading; indeed, in my view many of the briefs in this case have been excellent.
I have a small observation to make. Despite the group's name, few of the professors who signed on to the brief are law and religion scholars as such -- that is, scholars who write frequently, if at all, in the field of law and religion itself. As the brief itself observes, the group includes "men and women who teach constitutional law, religious studies, and employment discrimination law." But it includes few law and religion professors and scholars, and at least one professor who does not teach any of the subjects listed above, unless you count criminal procedure as constitutional law (would that we generally did so count it!). That said, the brief was spearheaded by two superb law and religion professors, Caroline Mala Corbin and Leslie Griffin, and the signatories include many serious writers in the areas of both constitutional law and employment discrimination (including Prawfsblawg's Lyrissa Lidsky). And I think it is both valuable and important that several religious studies professors are among the signatories. Still, without commenting on the merits, I think it is fair to say that the label "Law and Religion Professors" is literally true -- the group includes both law professors and religion professors -- but perhaps somewhat misleading. The general absence of law and religion professors from the list of signatories doesn't mean the brief's arguments are wrong, by any means, but it does suggest something worth noting: that a very different and nearly unanimous consensus about this case exists among those who spend most of their time working on these issues from a law and religion perspective.
Posted by Paul Horwitz on August 15, 2011 at 09:28 AM in Paul Horwitz | Permalink
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Very nice information you share with us. Thanks for this.
Posted by: hotmail login | Feb 17, 2020 9:17:01 PM
Joey: The Dale defense is just that -- a defense. It's not a wholesale immunity. It's only triggered if the law would have a significant impact on the organization's ability to convey its message, and if that impact is not outweighed by an important state interest. Whether those predicates might be satisfied in this case would depend on an evidentiary showing below and an assessment of the state interest underlying the anti-retaliation provision of the ADA. Check out the two respondents' briefs for why the school is unlikely to prevail under Dale in this case. Doug Laycock cites Dale prominently in his brief for petitioner, but (as I read it) he's not arguing for actual application of the Dale test, because it wouldn't lead to the employment-position-based categorical immunity he's seeking.
Posted by: Marty L. | Aug 16, 2011 9:25:13 AM
Exceptions notwithstanding, I think you have to account for the fact that just like fields like civil rights litigation or consumer law or poverty law tend to be populated with scholars who favor plaintiff/consumer friendly rules, scholars specializing in law and religion tend to favor more exapnsive notions of a religion's autonomy from the state. Scholars favoring more restrictive views of the ministerial exception would probably view themselves as "constitutional law" or "First Amendment" rather than law and religion.
Posted by: ncs | Aug 15, 2011 11:30:04 PM
I am not a law and religion scholar. But I'm interested in this case for obvious reasons since I study employment discrimination. Perhaps this just restates part of what Marty said, but having read the Corbin/Griffin brief, I was left with the impression that these amici would, primarily through Dale/expressive association (see e.g. p.30) allow something that looks quite a lot like a "ministerial exception," but is perhaps not called that and is considerably more limited in scope than any "ministerial exception" large enough to drive the facts of this case through.
Is it Paul's view that most law and religion scholars not only favor a ministerial exception grounded in the Religion clauses but also think the exception should be broad enough to cover the facts of this case? That might be true -- I certainly haven't canvassed the field -- but it strikes me as a little surprising.
Posted by: Joey Fishkin | Aug 15, 2011 11:00:20 PM
I am sick to death of how nice the two of you are to each other. What happened to getting real angry and saying terribly nasty things? You two apparently have no future in blogging.... =)
Posted by: Chris Lund | Aug 15, 2011 5:27:56 PM
Fair enough! And I should add that my disagreement on the last round in no way changes the fact that my own post should have been more moderate in tone.
Posted by: Paul Horwitz | Aug 15, 2011 1:34:34 PM
Thanks, Paul -- a very fair and honest response. For what it's worth, I didn't intend to suggest any unsavory motives on your part, and if I were writing the comment again I would avoid the adjective "thinly-veiled"! Apologies for the imprecision.
I agree that there is some question whether the particular, categorical argument made in that amicus brief is "representative of the views of *most* scholars who work directly in law and religion" -- but then again, it does not purport to be any such thing.
This internecine dust-up is something of a diversion, of course -- the real question is whether the amicus brief is correct on the merits *as applied to this case* -- or, more to the point, whether the respondents' briefs (which don't rule out a ministerial exception altogether but that would at a minimum greatly restrict the cases in which it might apply) are persuasive. I'd be very interested in hearing others' views on that substantive question.
Posted by: Marty Lederman | Aug 15, 2011 1:25:25 PM
I appreciate Marty's comment. He raised some of the same points on a law and religion listserv, and I'll summarize what I said there: mea culpa. My language on this point was too strong, or at least was offered without enough evidence for me to assert it so strongly. Now, I do think that the majority view of law and religion scholars would clearly favor "SOME form of ministerial exception," to use Marty's language; and the introduction to the brief I discuss makes quite clear that the brief's view is that there should be NO form of ministerial exception. That was, of course, the primary point of my post, and Marty's use of a "to be sure" clause suggesting the very same point, although with more proper modesty, should not go overlooked. That said, I was too forceful in making the claim I did. Again: mea culpa.
I do question one aspect of Marty's comment, and it's rather important as far as I'm concerned. Marty calls my post a "thinly-veiled effort to cast doubt on the authority, or at least the representativeness, of the Corbin/Griffin amicus brief," and adds that my "evident aim is to paint these amici as extreme outliers." Both claims, I think, are inaccurate in fact, and wildly inaccurate in tone. Sometimes a cigar is just a cigar, for heaven's sake. I found the name for the amicus brief striking and interesting, and presumably descriptive--wasn't it meant to be? I scrolled down, at the brief's invitation, to the appendix to see which of my many law and religion colleagues had signed on to the brief. That seems a rather natural response, since it is my field, after all; if the brief had been written by a group calling itself Employment Law Professors, I might not have bothered. I found that the answer to the question which of my law and religion colleagues had signed on was -- very few indeed. Is it really terribly impolite or improper to say so?
I did not engage in a "thinly-veiled" effort to cast doubt on the authority of the brief; I said in the post that I was making no comment on the merits of the brief. I did not make a "thinly-veiled" effort to cast doubt on the brief's representativeness, language that to most readers will suggest that something clandestine and unsavory was going on; I openly questioned whether the views offered in the brief were representative of the views of most scholars who work directly in law and religion. I still think they are unrepresentative, although I think Marty rightly chastized me for painting with far too broad a brush on that point. And, whatever Marty may think, it was not my intention, evident or otherwise, to paint these amici as extreme outliers. Again, I think Marty's primary criticism was perfectly sound, and having blogged in haste I was happy to repent at leisure. This business about plumbing my apparent hidden motives and using language dripping with suggestiveness, though, is quite unnecessary. And again, notwithstanding my apparently thinly veiled intentions, I think the brief is well worth reading -- as I said in the post.
Posted by: Paul Horwitz | Aug 15, 2011 12:59:06 PM
Paul's post is a respectful but thinly-veiled effort to cast doubt on the authority, or at least the representativeness, of the Corbin/Griffin amicus brief. That brief does not, of course, purport to reflect the views of all or most "Law and Religion Professors"--indeed, it would have been foolhardy for its authors to make any such claim, in light of the distinguished law & religion scholars who filed briefs on the other side (not least of which is Doug Laycock, as counsel for the petitioner). But Paul's evident aim is to paint these amici as extreme outliers: He writes that there is "a very different and nearly unanimous consensus about this case . . . among those who spend most of their time working on these issues from a law and religion perspective."
I have grave doubts about the accuracy of that assertion. To be sure, many law & religion profs might be of the view that there should be some form of "ministerial exception." (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) Dale, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.)
But can it really be the case that there is a "nearly unanimous consensus" among law & religion scholars that the Constitution affords a church-affiliated school complete immunity from employment law rules, including race discrimination and anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under Boy Scouts v. Dale (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? And that such an exemption should apply even in cases (unlike Hosanna-Tabor itself) where the school does not claim any religious basis for violating the law, and in cases where there is little or no prospect that the court will have to resolve a question of religious doctrine or truth?
I would be very surprised if there were a consensus on that question, "nearly unanimous" or otherwise. I'm not even sure what the majority view would be among such scholars. But I am fairly confident that there are a great many law & religion professors who do not think there is any such broad constitutional immunity.
By the way,
Doug's opening brief can be found here:
and the rest of the briefs (except his reply, which is due in a couple of weeks) can be found here:
http://www.americanbar.org/publications/preview_home/10-553.html
I highly commend to interested readers all three of the parties' briefs -- the DOJ/EEOC brief and the individual plaintiff's brief as well as Doug's -- and many of the amicus briefs are also well worth a read.
Posted by: Marty Lederman | Aug 15, 2011 12:37:37 PM
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