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.