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Tuesday, April 03, 2012

Leslie Griffin on Hosanna-Tabor

I'm pleased to recommend a new paper by Leslie Griffin (Houston), titled The Sins of Hosanna-Tabor. As the title suggests, she is not thoroughly enamored with the Supreme Court's recent decision in that case. Given what I wrote yesterday, I would feel guilty reposting the abstract, but you can read it at the link. Shorter version: Hosanna-Tabor offers a "profound misinterpretation of the First Amendment." It "mistakenly protected religious institutions' religious freedom at the expense of their religious employees," and in so doing reversed the natural order of things, which focuses on the rights of individuals and not institutions. The "special solicitude" for religious organizations that the Court refers to in Hosanna-Tabor is in fact "lawlessness; the Court held that religious organizations enjoy special freedom to disobey the law." The Court's history lesson in Hosanna-Tabor is itself questionable. The Court was equally wrong to say that Employment Division v. Smith did not compel defeat for the ministerial exception. The Court should return to a "neutral interpretation of the First Amendment over the Court's favoritism toward religion."

I disagree with vast stretches of Griffin's paper, as I think my writing on this subject has made clear. To the extent that she is right that current law often emphasizes individual over institutional freedom--and I think the Court has offered enough ammunition to go a different way, although I also think her views represent a prevalent view (albeit an inconsistent one; but perhaps I am mistaken, and we will see a number of amicus briefs from critics of Hosanna-Tabor urging the Court to overrule Grutter next Term when the Court hears the Fisher case) view on and off the Court--I think that view is overly simplistic. I think her statement that "Hosanna-Tabor promises to be a decision that is limited to its facts" is overly optimistic, or perhaps an effort to "frame the narrative." And I think the rhetoric of "above the law," being free to "disobey the law," and so on is deeply question-begging.

But I also am delighted that someone is pushing back so hard against the opinion. This is a good, angry, and good and angry article. It very nicely and enjoyably puts the question of individual vs. institutional rights front and center, whether I agree with its conclusions on this point. Similarly, while I think the history offered by the Court in Hosanna-Tabor offers important and accurate claims about what I have called the basic "church-state settlement," I think that history is big enough for the both of us, and I enjoyed Griffin's alternate take on the relevant stories that may be told about church-state relations. Well worth reading.   


Posted by Paul Horwitz on April 3, 2012 at 10:04 AM in Paul Horwitz | Permalink


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