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Thursday, January 12, 2012

More on Hosanna-Tabor

A few more words to add to the collection on Hosanna-Tabor.  The first set of them doesn't belong to me: it belongs to Mike Dorf, who has a post up on his blog exploring the decision.  Mike focuses, rightly, on questions left unanswered by Chief Justice Roberts's opinion, which (quite typically) is a model of clarity and simplicity in exposition, but achieves that end in large part by postponing or ignoring a rather substantial number of important and difficult questions.  

I am personally less bewildered than Mike by the Court's statement that Employment Division v. Smith does not preclude its decision, and less convinced that the church property dispute cases are beside the point.  But I agree that the Court's description of a difference between "outward physical acts" and "internal church decisions" is deeply problematic.  The sheer spread of state regulation, as we have long recognized, has over time tranformed many "internal decisions" into "outward physical acts."  I think we are probably closer to the mark thinking of the decision almost in terms of some of the Court's federalism decisions, in which, in however problematic or short-lived a fashion, it has argued that there are matters that generally should be seen as falling within the sphere of the state or of the federal government.  Internal church decisions can involve physical acts--like turfing someone from a job--but the closer they are to traditional matters of church governance, and the more those physical actions or results are related to the participation in the affairs of the voluntary community of the church, the less likely they will be held to fall within the "sphere" of the state.  (The "dignitary" harm of losing one's job as a ministerial teacher in a church is a dignitary harm largely because that person wants to continue working within the church community.)  As usual, Roberts would never say something as mystical as this, but, also as usual, neither does he conclusively tell us anything else.

Two other short thoughts--really references--for now, although I hope to say more at some point.  First, I was reminded yesterday that there is an excellent upcoming conference at which at least one panel will discuss the ministerial exception in light of the new decision.  On February 23-25, the Nootbar Institute on Law, Religion, and Ethics at Pepperdine will hold a conference titled The Competing Claims of Law and Religion, with what is almost literally an all-star cast.  One of the panels is on the ministerial exception, and I had more or less forgotten that I will be on it, along with a number of actually excellent scholars.  I look forward to hearing what people have to say, and I encourage those who can attend the  conference to consider doing so; one look at the schedule will tell you that there will be something for everyone.

Finally, let me promote the Northwestern University Law Review Colloquy, which has a series of short pieces discussing Hosanna-Tabor, dating from before the decision.  I would like to think my piece for the Colloquy, Act III of the Ministerial Exception, is still entirely relevant despite the intervening decision.  It more or less assumes that the Court will recognize the ministerial exception, as it did, but suggests that such a decision leaves quite unanswered the question how churches should behave, and explores the use of internal or external monitoring and criticism to encourage the churches to behave appropriately even where the law itself will not reach.  It's understandable that lawyers like to discuss the law.  But in this as in many other areas, that discussion only takes us so far, and there is much value in considering how institutions themselves act or should act, and what non-legal mechanisms, cultural and otherwise, exist to encourage healthy institutional self-governance.  

Posted by Paul Horwitz on January 12, 2012 at 08:15 AM in Paul Horwitz | Permalink


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I agree that the Court's description of a difference between "outward physical acts" and "internal church decisions" is deeply problematic.

Posted by: AILEE | Feb 27, 2012 11:22:57 AM

"turfing someone from a job"

I have not seen this reference before.

Posted by: Joe | Jan 12, 2012 8:26:28 AM

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