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Friday, October 14, 2011

Two Discussions

Two good recent con law discussions on the blogosphere.  First, Leslie Griffin has posted part three of her discussion of the Hosanna-Tabor oral arguments.  She argues that it should be permissible, if not mandatory, for courts to ask whether the reason for a church decision with respect to the employment of a minister is based on religion or whether that was a mere pretext.  Of course, there has been disagreement about this in the caselaw.  

She ends with this: "Perhaps it is the justifications for the ministerial exception that are a sham?"  I think it's unfortunate; it ends a good discussion of a perfectly legitimate question about the scope of the ministerial exception with a broadside questioning the motives of all churches.  I might add that there are no doubt those out there who think that the justifications of those who oppose the ministerial exception are similarly a sham: that what they would really like, at the end of the day, is to require--at the point of a gun, so to speak--Catholic priests to hire women, Orthodox Jewish synagogues to require men and women to worship together, and so on.  I don't think that: clearly there are some opponents of the ministerial exception who are wholly sincere in believing that churches require some freedom to make choices of this time, but believe there are a host of reasons why the ministerial exception cannot exist as a matter of law, or believe that some form of religious exemption exists, but that it must be narrow and religiously based.  And just as clearly, there are some proponents of the ministerial exception who believe that it must exist as a matter of law regardless of how they feel about the outcomes, or who believe that there are sound reasons why it must be broad, and are genuinely concerned that allowing for pretext analysis will end up dragging courts into theological disputes that they are not competent or empowered to enter.  Given that, I would just as soon that Griffin had killed that last sentence and that we could all have a good-faith discussion.  

For free speech scholars and students, you may find interesting this discussion on SCOTUSBlog's new "community" page on the Stolen Valor Act, the litigation over which may be finding its way to the Supreme Court soon.  It's a terrific discussion of the issues raised by the Act, which ultimately turn our attention to the surprisingly unresolved question of the First Amendment's treatment of both true and false facts.  It's an issue I hope to start working on soon, and it has drawn a good deal of recent attention from some of the top First Amendment scholars, including Eugene Volokh, Mark Tushnet, Ashutosh Bhagwat, and others.  Let me make particular note of a forthcoming Comment by a University of Chicago law student who participates in the discussion.  It looks like a terrific and well-timed student piece.  Enjoy.

Posted by Paul Horwitz on October 14, 2011 at 09:02 AM in Paul Horwitz | Permalink


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I read that sentence in the same way that Paul did, but I'm happy to learn that Prof. Griffin does not think that those of us who believe that a meaningful commitment to religious freedom entails a ministerial exception of some kind are not engaging in (quoting Merriam-Webster, on "sham") "cheap falseness", "hypocrisy", "trick[s] that delude[]", or "hoax[es]".

Posted by: Rick Garnett | Oct 18, 2011 6:19:37 PM

I'm grateful for the correction! No one likes to be misunderstood, of course, and I regret my sharp language. Having reread the entire post, I confess that the sentence remains too subtly worded and suggestive for me, but then I haven't had my morning coffee yet. I suppose I would prefer if Prof. Griffin had written that I "mistakenly" attacked her for bad faith rather than "wrongly," but this too may be so "carefully drafted" a distinction as to escape anyone's attention save mine.

I hope I may add, politely, that I disagree with Prof. Griffin's suggestion that the arguments in support of the ministerial exception are "weak, i.e., lacking in justification," and in the context of the ministerial exception I am not entirely convinced that it is possible to engage in pretext analysis without ending up treading on forbidden ground. I also remain uncertain, based on my reading of the brief in which Prof. Griffin was involved in, about when her position believes that a context-sensitive inquiry should be avoided because it will lead to excessive entanglement, and when it is not only acceptable but necessary; I discuss this point in my "Act III of the Ministerial Exception" piece.

For what it's worth, however, I completely agree that the legal arguments of the churches should be subjected to legal analysis, and in fact both my "Act III" piece and my blog posts have 1) repeatedly suggested that a weakness of at least some of the arguments in support of the ministerial exception--including mine!--is that they sometimes focus too much on the big picture and not enough on the tough subsidiary questions and 2) praised Prof. Griffin, and others, for skillfully showing us the other side of the argument. Despite the present disagreement and Prof. Griffin's sharp response, which she has every right to make, I feel fairly confident that my writing in this area has been careful to give full credit and careful attention to the arguments of the opponents of the ministerial exception, including Prof. Griffin. But readers are welcome to judge for themselves.

Posted by: Paul Horwitz | Oct 18, 2011 9:03:34 AM

"Perhaps it is the justifications for the ministerial exception that are a sham?" Read that sentence carefully because I drafted it carefully. It relates to the whole subject of my blog post, which was to point out that there is a difference between the truth of a faith and the sincerity with which it is held. Nothing in my post questions the sincerity of the supporters of the ministerial exception. Indeed I believe they are as sincere about their support of the ministerial exception as I am in my opposition. I think their arguments about the First Amendment are weak, i.e., lacking in justification. Prof. Horwitz wrongly attacks me for bad faith and for writing "a broadside questioning the motives of all churches." The legal arguments of the churches should be subjected to analysis, which is what my blog post did. I did not question anyone's motives.

Posted by: Leslie Griffin | Oct 17, 2011 4:14:51 PM

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