SCOTUSBlog reports that the Supreme Court has issued its opinion in Hosanna Tabor v EEOC, unanimously reversing the U.S. Court of Appeals for the Sixth Circuit on the question whether the First Amendment precludes employment discrimination suits against religious entities by those in “ministerial” positions. The Court was unanimous in the judgment. Chief Justice Roberts wrote the opinion for the Court. Justice Thomas concurred, and Justice Alito filed a concurring opinion joined by Justice Kagan (!). I have not yet read the opinion, but I’m certainly curious to see what united Justices Alito and Kagan. More background on the case can be found here.
Also, FWIW, the Court today also issued another 8–1 opinion in Perry v. New Hampshire.
Phil Miles says:
The concurring opinion aligning Justices Kagan and Alito notes that the term “minister” is rarely used in the Jewish and Catholic faiths (among others), and “ordination” often has no counterpart in other religions. Thus, the focus should be on function, not titles or ordination.
“This conclusion rests not on respondent’s ordination status or her formal title, but rather on her functional status as the type of employee that a church must be free to appoint or dismissin order to exercise the religious liberty that the First Amendment guarantees.” Phil Miles(Quote)
losantiville says:
Catholicism? losantiville(Quote)
DCAtty says:
The Alito/Kagan concurrence basically said that the decision did not upset earlier decisions that the title “minister” was not essential to the ministerial exception. Instead, the court looks to the function of the person within the religious organization. DCAtty(Quote)
California 1849 says:
What unites JJ Alito and Kagan is that neither is a Protestant, and they are concerned that the term “ministerial” really only applies to the Protestant religions. California 1849(Quote)
Richard Riley says:
Alito and Kagan’s concurrence is interesting, as Prof. Adler predicts. Alito wants to assure that the “ministerial exception” to Title VII liability recognized in the Court’s opinion is not limited to “ministers” as the term is used in Protestant denominations. Alito points out that “Catholics, Jews, Muslims, Hindus, [and] Buddhists” do not use that term for their clergy.
Seems like straining at gnats, to be honest. The Internal Revenue Code, for example, grants certain tax benefits to “churches,” and neither the IRS nor anyone else has had any difficulty applying those rules to synagogues, temples, mosques, and all other houses of worship comparable to Christian “churches.” Richard Riley(Quote)
Trivianus says:
Close, the concurrence points out that the term “minister” is too Protestant-centric. Trivianus(Quote)
wfjag says:
If 40 is the new 30, then it looks like 8–1 is the new 9–0. wfjag(Quote)
Steve says:
But no one at all on the Supreme Court is a Protestant. Steve(Quote)
Anon says:
Thomas gets it right in my opinion. The first amendment not only prohibits the government from telling religions who they must have as their ministers, it also prohibits the government from second-guessing what roles the religion in good faith deems to be ministerial.
“As the Court explains, the Religion Clauses guarantee religious organizations autonomy in matters of internal governance, including the selection of those who will minister the faith. A religious organization’s right to choose its ministers would be hollow, however, if secular courts could second-guess the organization’s sincere determination that a given employee is a“minister” under the organization’s theological tenets.” Anon(Quote)
Houston Lawyer says:
Interestingly, all of the concurrences seem to be concerned that the majority construes the “ministerial” exception too narrowly. Houston Lawyer(Quote)
Dan the Man says:
OMG! Scalia/Thomas/Roberts/Alito were actually willing to say a real law (might actually) violate the Establishment Clause! I guess anything’s possible.
The opinion by the Chief Justice is an interesting read. In constitutional law 101 (and for those us who can read english), the first amendment has two clauses about religion — the establishment clause and the free exercise clause. So one would expect those two clauses would be talking about two different (although related) things. But the opinion talks about the “religion clauses” over and over again — make almost sound like they say the same thing. Take this quote from the opinion:
But this sounds more like it implicates the free exercise clause than the establishment clause. For example, if Congress were to make a law saying that employees cannot be discriminated based on how short someone is and then applies this law to filling ecclesiastical offices, this sounds more like directly a question of violating the free exercise clause than Congress “establishing” a religion.
Also, didn’t Thomas say in Elk Grove Unified School District v. Newdow that the establishment clause doesn’t apply to the states? So why did he join fully in the court opinion? Dan the Man(Quote)
dr says:
Which, as it happens, is more votes than Rick Perry got in New Hampshire yesterday. dr(Quote)
Martinned says:
Let me just take this opportunity to admit error. Last year I argued that the EEOC should win in this case, but this opinion was clearly based on an incomplete and erroneous understanding of the facts. It was an interesting discussion at the time, but now that I’ve read the Court’s discussion of the facts, I agree that this is the right result. (Although I’d be open to an inquiry, in another case, of whether this exception is really used in good faith.) Martinned(Quote)
Dan the Man says:
The attempt to distinguish Employment Div., Dept. of Human Resources of Ore. v. Smith is strained to say the least. Quote from opinion:
“Oregon.s prohibition on peyote use, is a valid and neutral law of general applicability. But a church.s selection of its ministers is unlike an individual.s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government.s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).”
Of course, firing someone and not paying them money seems to me to be a pretty “outward physical act”. Furthermore, saying someone can’t use peyote is “an internal church decision that affects the faith and mission of the church itself” just as saying someone can’t drink alcohol during Catholic communion is an internal church decision that affects the faith and mission of the church itself.
The court is simply making distinctions without differences in the opinion. Dan the Man(Quote)
CJColucci says:
On these facts, this wasn’t a particularly difficult case, though I think the Alito/Kagan concurrence better explains why. The Thomas concurrence seems to permit extending the “ministerial” exemption to, say, janitors — which, given certain of his other views, may be a feature rather than a bug. CJColucci(Quote)
Talking Donkey says:
Not to be too technical, but a few Jews do call their clergy “ministers.” The historic Spanish-Portuguese congregations (Mikveh Israel in Philadelphia and Shearith Israel in New York) have used that term for their spiritual leaders since colonial times, and still do, at least in some written documents. They also address their Hazzan (Cantor) as “Reverend.” It’s my understanding that the practice dates to a time when they tried to “fit” in without compromising Jewish law, and lacked ordained rabbis in any event. Talking Donkey(Quote)
Bob from Ohio says:
Good line. He actually got 1,713 votes.
The Perry in the case must be a realtive though. He was caught holding two car speakers next to a busted car window and told the officer he “found them”. Bob from Ohio(Quote)
losantiville says:
The money quote from Justice Alito’s concurring opinion (joined by justice Kagan!):
“Different religions will have different views on exactly what qualifies as an important religious position, but it is nonetheless possible to identify a general category of “employees” whose functions are essential to the independence of practically all religious groups. These include those who serve in positions of leadership, those who perform important functions in worship services and in the performance of religious ceremonies and rituals, *and those who are entrusted with teaching and
conveying the tenets of the faith to the next generation.*”
The importance of this case that goes beyond the facts here is that Courts of Appeal around the country will be gun shy about denying a Ministerial Exception in *any* case. The Appeals Court here got reversed *unanimously* by the Supremes and Appeals Courts really hate that.
Also, many Christian Schools work religion into all parts of the curriculum and many K-12 classrooms only have a single teacher who teaches the students all subjects including religion. The effect may be to get the EEOC out religious institutions entirely. Thank God (I mean the Supreme Beings). losantiville(Quote)
yankee says:
The decision seems to be in serious tension with Employment Division v. Smith. The result is that the government can regulate or even prohibit religious practice without any form of heightened scrutiny as long as the law is “neutral,” but the selection of people who engage in those practices cannot be regulated at all, even where most of their duties are secular, the law is of general applicability, and the subject matter of the regulation does not touch on any religious concern. (It’s not as though they were telling the Catholic Church they must accept female priests: Lutheran doctrine does not prohibit disabled people from leading prayers and nobody is claiming that it does.)
I think the problem is mostly with Smith, but it still doesn’t make a lit of sense. yankee(Quote)
Anderson says:
many K-12 classrooms only have a single teacher who teaches the students all subjects including religion
I suspect that in such a case, all the subjects end up being “religion.”
Even math. Anderson(Quote)
Anon says:
Yes — if the religion in good faith believes that janitorial functions are ministerial in nature. How is that in any way different than if a religion, for example, believed that circumcisions must be performed by rabbis? No one would say that the group must allow a priest to do the circumcisions. Or if the slaughtering of meat was seen as a religious exercise, the government should not be allowed to tell the religion who its butcher should be.
“Judicial attempts to fashion a civil definition of “minister” through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the “mainstream” or unpalatable to some.” Anon(Quote)
JoeJP says:
The Alito concurrence is another case where Alito, in certain contexts, honors a sphere of constitutional privacy.
Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have “act[ed] as critical buffers between the individual and the power of the State.”
As the majority notes, the right of association is “implicit” in the 1A. See also, Griswold v. Connecticut.
The majority opinion speaks of “outward physical acts” as different from “internal church decision that affects the faith and mission of the church itself.” I’m not sure if the line is totally clear in practice. The opinion avoids hard questions:
The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.
The opinion seems a bit of a cheat. It raises red flags brought up by the government (such as notifying on abusive priests seen as a violation of church mission), but instead of drawing a line that says that sort of thing isn’t included here, doesn’t state an opinion (other than negative implication that it is a “parade of horribles”) on the matter. JoeJP(Quote)
Simon P. says:
I eagerly anticipate the next case in this line, which I expect will include a janitor at a religious school fired over his complaint to the NLRB that he was misclassified as a “managerial” employee for purposes of the wage-hour laws. The school will argue that it requires the janitor, as with all its employees, to be upstanding and exemplary members of the Christian faith, as part of its religious mission, and considers any interaction between its employees and its students (on campus or otherwise) to be an opportunity for religious instruction. It will also point to its employment manual, which asserts that an essential part of its Christian mission is to resolve disputes internally and amicably, without the involvement of the government or threats of lawsuits. (Surely, this is what Jesus would do.)
Thus, it will claim that the janitor falls under a ministerial exception from the labor laws, per its good-faith determination that the janitor qualifies as a “minister.” And, by violating its communal dispute resolution policy, the ministerial janitor violated an important bond of trust among the church’s members.
Under this line of cases, and with the support of Thomas’s concurrence, is the result here anything but a similar dismissal? And, if so, are religious institutions that operate as employers subject to any employment-related law? Simon P.(Quote)
yankee says:
Presumably the government could require butchers to use authorized “humane” slaughter techniques and require circumcisers to adhere to standards of reasonable care. In fact, the government could entirely prohibit animal slaughter or infant circumcision. Those are laws of general applicability and therefore permitted under Smith. But if the government licensed butchers or circumcisers, religious groups would be categorically exempt from the licensing requirements. It doesn’t make a lot of sense to me. yankee(Quote)
Don says:
This isn’t far off from how the LDS Church treats it’s custodians. My parents are retired LDS custodians.
They were required to hold a Temple Recommend (ie be a Member in Good Standing) to even have the position. They were paid hourly and for the most part, were treated well. They have good retirement benefits.
But I know personally about custodians who were denied temple recommends for one reason or another, and were shortly there after fired. Don(Quote)
Freedom101 says:
HAHAHAHHHAHHHAHAHHAHAH!
Anti-Christian bigots pwned.
Seeing the anger the anti-Christian bigots are directing at this decision warms my heart. Freedom101(Quote)
yankee says:
Why stop with employment law? Say a religious hospital declares that it considers the practice of medicine to be a matter of religious significance. It also requires doctors to lead prayers and so forth. Can the government thereafter require that the hospital hire only licensed physicians as doctors? Otherwise it seems the state would be interfering in the selection of ministerial employees. yankee(Quote)
Kazinski says:
The reals surprise is Kagen endorsing Boy Scouts vs. Dale:
That’s going to set some teeth on edge. Kazinski(Quote)
Dilan Esper says:
Honestly, I don’t think Thomas’ position is workable, although I do think it’s a fair reading of the text and history of the First Amendment. The problem is that instead of litigating the word “minister”, we’ll just end up litigating the word “sincere” instead, because otherwise, people will be able to use the church form to escape anti-discrimination laws as a subterfuge. Dilan Esper(Quote)
Freedom101 says:
Easy fix. Eliminate “anti-discrimination” laws. Freedom101(Quote)
Dilan Esper says:
By the way, Thomas’ opinion in the other case (police lineups) is really bad. He says that the Due Process Clause does not impose any limitations on suggestive lineups because that would be “substantive due process”. Notably, not even Scalia joins this opinion.
I think Thomas has such a bug up his butt on substantive due process that he’s willing to read the entire Due Process Clause out of the Constitution. The central purpose of the Due Process Clause was to ensure fundamental fairness in proceedings where life, liberty, or property could be deprived. If five justices of the Supreme Court conclude that convicting someone based on a suggestive line-up is unfair (which it is, as such procedures can easily lead to innocent people being convicted), that seems to me to be completely in line with any reasonable understanding of the Due Process Clause.
If Thomas thinks THIS is “substantive”, just what does he think is procedural? Paying a filing fee? Dilan Esper(Quote)
Dilan Esper says:
On what grounds? Their constitutionality is clearly settled (see Katzenbach v. McClung; Heart of Atlanta Motel v. United States). And the American people strongly support them (note how the Ledbetter Act sailed through last Congress).
The point is, the ministerial exception has to treat these laws as valid laws (and they are, indeed, valid laws). So under Thomas’ test, we’re going to end up litigating “sincerity”, which doesn’t avoid the problem he is concerned about. Dilan Esper(Quote)
Dan the Man says:
This passage from the court is pretty amazing. It says:
But, of course, if incorporating a church with a charter that specifies how one can “elect” and “remove” a minister is unconstitutional, this would imply pretty much all churches cannot be incorporated. For example, if the a church has a board of 5 people and the corporate charter specifies 3 votes of the board means it can do anything it wants, then it would unconstitutional to incorporate the church because the charter specifies that 3 votes allows a minister to be elected or removed. Dan the Man(Quote)
Freedom101 says:
Any law has only as much validity as one following it is willing to concede.
The fact that a court decrees something to be so, doesn’t make it so. Freedom101(Quote)
Elais says:
Where were you seeing the ‘anti-Christian bias’?
What if I were to say to you that this ruling supports Christians who hate gays, women, Jews, Muslims and pretty much anyone not of the Christian faith? That they can commit all sorts of crimes against them and then claim the ‘ministerial exception’?
Would the beatings of gays within a church be acceptable now because this ruling protects Christian doing the beating? Elais(Quote)
David M. Nieporent says:
Because this was a suit arising under federal, not state, law? David M. Nieporent(Quote)
zuch says:
The “elephant in the room” for Perry v. New Hampshire is that all eyewitnesses are rather unreliable (in those cases when they’re not outright corrupt or malign). The advent of scientific forensics has shown that many eyewitnesses are lousy observers, and social science research has shown the same, particularly for circumstances that are likely to be present at crime scenes.
Cheers, zuch(Quote)
Steve2 says:
I’m pretty sure Lukumi Babalu Aye v. Hialeah was post-Smith and I think it held the exact opposite, at least as to animal slaughter. Steve2(Quote)
Dan the Man says:
Oh, yeah, right.
Rereading Thomas’ opinion in Elk Grove, it still doesn’t make any sense why he would say the federal government violated the Establishment Clause. Here’s what Thomas said:
“The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments.”
“Nothing in the text of the Clause suggests that it reaches any further. The Establishment Clause does not purport to protect individual rights.”
Since this is a case about “individual rights” and not about “prevent[ing] Congress from interfering with state establishments”, based on his previous opinion, Thomas shouldn’t have said the EEOC violated the Establishment clause. Dan the Man(Quote)
DTR says:
The Lutheran “internal dispute resolution” doctrine played no role in this decision, as far as I can tell. Rather the Court unanimously held that a religious employer can, if it wishes, fire (or refuse to hire) a ministerial employee for no other reason than that the employee is disabled, or over age 50, or a Vietnam veteran, or Polynesian, or divorced, or a member of any other protected class. This strikes me as the right outcome under the Free Exercise clause.
In that respect this case fills a gap in the 2x2 matrix created along the following 2 binary variables: (1) whether the discrimination is on religious grounds, and (2) whether the employee serves a minsterial function.
Cell 1 (ministerial employee discriminated against on religious grounds): Never any question. You can clearly fire your pastor for, say, converting to a different religion.
Cell 2 (non-ministerial employee discriminated against on religious grounds): Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987). You can also fire the janitor for converting to a different religion (or for insufficiently adhering to the practices of the religious employer).
Cell 3 (ministerial employee discriminated against on non-religious grounds): Hosanna-Tabor. You can fire a minister (or pastor or rabbi or imam) for becoming disabled, or divorced.
Cell 4 (non-ministerial employee discriminated against on non-religious grounds): Here it seems likely that courts would apply anti-discrimination law if, say, the janitor of the church were fired for becoming disabled. But other commenters may be more knowledgable on this point. DTR(Quote)
clayton says:
Next stop: every corporation, partnership, etc. becomes a “religious” entity clayton(Quote)
Martinned says:
Like I said, it should be possible for the EEOC or some other counterparty to make a showing that the reliance on the ministerial exception is not in good faith. If not, then all law goes out the window. Martinned(Quote)
Martinned says:
Yes, that was exactly the point. The plaintiff was trying to get the Court to seriously reduce the importance of eye witnesses in US criminal law, and that was always going to be a long shot. Martinned(Quote)
Dilan Esper says:
You have to operate in the reality-based community.
I realize that it’s popular among some on the right to pretend that no difficult decision need ever be made because we could just overturn all those “unconstitutional” laws and get back to the “real” constitution.
But since that’s not happening, the rest of us have to actually figure out how to work within the constraints. Dilan Esper(Quote)
Sid says:
DTR gets it. I speak as the husband of an ordained United Methodist deacon.
Cell 4 is the only intervention by anti-discrimination law allowed. The other 3 cells are fairly well cloaked in the establishment and free exercise clauses.
I know (ver personally) that hiring and firing decisions in a religious community can have dire consequences. But as long as we follow the Constituion, that is the risk we run and rightfully so. Sid(Quote)
Dilan Esper says:
I think the majority opinion leaves open the possibility of litigating both the issue of “minister” and the issue of “sincerity”. Whereas Alito would like the litigation to focus on “minister” and Thomas would (apparently) like the litigation to focus on “sincerity”. (I say “apparently” because I actually don’t think Thomas thought his position all the way through, or alternatively he thinks it is true as an original matter and doesn’t give a damn that it would be impossible to litigate.) Dilan Esper(Quote)
Asher says:
I have to say, though I agree with the result in Hosanna-Tabor, that’s the weakest SCOTUS opinion I’ve seen on a major question of constitutional law in a long time. Asher(Quote)
Yankev says:
Um, in the second paragraph of your post?
Yankev(Quote)
Bored Lawyer says:
Anti-discrimination laws regulate subject motivations, not merely physical acts. Nothing in anti-discrimination law prohibits any employer from firing (or demoting or not hiring) someone. What is prohibited is firing someone for particular reasons – race, religion, gender, etc. The laws at issue very much regulate subjective motives, not merely acts.
Once you regulate subjective motives, then you intrude upon beliefs, which have a stronger protection than actions. IIRC, there is a parallel distinction in freedom of speech jurisprudence – freedom of belief is absolute, but freedom physical speech can be regulated if there is a compelling enough reason.
While I agree that Roberts did not develop the distinction sufficiently, I do not think it is ephemeral. Bored Lawyer(Quote)
NL_ says:
The mind boggles that Alito, Princeton-Yale grad and former US Attorney, and Kagan, Princeton-Havard grad and former US Solicitor General, could ever share a viewpoint! :P NL_(Quote)
wm13 says:
Everyone treats it as obvious that janitors shouldn’t be covered by the ministerial exemption, but Eve Tushnet (who is, incidentally, Mark Tushnet’s daughter), wrote a very interesting piece challenging this conclusion. The URL is below; the relevant piece is dated October 28, 2011.
http://eve-tushnet.blogspot.com/2011_10_01_archive.html wm13(Quote)
Andrew J. Lazarus says:
On an individual basis? So if I state I am unwilling to concede the validity of laws against theft, I can just go out and steal your Ayn Rand book collection?
You might need to rethink this. Andrew J. Lazarus(Quote)
Larry Lennhoff says:
This has interesting implications for Orthodox Jews. The ordination (granting ‘smicha’) of women is not permitted according to the overwhelming majority of Orthodox Jewish scholars (poskim). One argument against this approach has been that granting the title ‘rabbi’ gives a person certain secular tax advantages, in particular parsonage. This ruling would seem to make it easier for those Orthodox Jewish congregations that wish it to set up a situation where a woman could receive those benefits without being granted the title ‘rabbi’. Larry Lennhoff(Quote)
Fub says:
The same is true of Buddhist Churches of America, the oldest Buddhist organization in the USA. In the United States, BCA priests may be addressed as either sensei (“teacher”), “Minister,” or “Reverend.” Fub(Quote)
Michael Ejercito says:
I am surprised that more defense attorneys have not caught on to this. Michael Ejercito(Quote)
ptt says:
Looks like Christmas came a little late this year. ptt(Quote)
Mark F. says:
Agreed. Mark F.(Quote)
MDJD from NY says:
No– the theology, structure, and roles of members in different religions is sufficiently different that the concept of a minister as a special religious reader is not applicable to all religions.
Hypothetically, services in a given religion call for members to read passages of scriptures during services. The religion only lets men read, and then only lets men from certain castes read. (Note that in traditional Judaism, only men are called to read Torah– or have an experienced reader read in their name, and members of one tribe get the first two of seven passages.) A low-caste woman sues to read. Alito and Kagan make it clear that the “ministerial exception” applies, even though readers are not ministers. MDJD from NY(Quote)
MDJD from NY says:
The distinction to me seems to be that this case, unlike Smith, concerns itself with the internal organization of the religious organization. As such, it may carve out an exception to Smith. The identity of persons who serve in certain roles is part and parcel of the structure, rather than the activity, of the rleigious organization. TThus, the use of drugs by members of an organization, the particpation of members in “plural marriage,” the sacrifice of firstborn all may be required by a religion, but are part of the organizational structure of the religion. The identity and roles of members of the religion are, however.
An analogy: in regulating an auto company, prohibiting the sale of two door autos is not the same as requiring the company to retain officers with narcolepsy. One is about function, and the other about organization per se. MDJD from NY(Quote)
JHW says:
The Court’s opinion in Hosanna Tabor strikes me as essentially right; my only real criticism is that I wish it had explicitly incorporated the standard of the Alito/Kagan concurrence, or something like it. I think Employment Division v. Smith is wrong, but regardless, I don’t think it controls the outcome of this case. It is one thing when you have a law that enacts a general ban on secular acts, like the use of drugs, that have religious significance for some people. It is another when have something like an anti-discrimination law, which, though a law of general application in some sense, affects essentially religious acts (like the ministerial employment decisions of a religious organization) as well as secular ones. The rule of Smith tells us that the Free Exercise Clause does not protect an employer in the secular business context who fires an employee on a prohibited ground, even if it is for a religious reason. It tells us nothing about the application of the Religion Clauses to employment practices regarding employees who have a substantial religious function.
Regarding the Alito/Kagan concurrence, it seems worth mentioning that Kagan, while serving in the Clinton Administration, expressed sympathy for religious liberty claims in the context of anti-discrimination laws. See here (two-thirds down the page). JHW(Quote)
Dan the Man says:
All this does is shift the question to what is a “religious” organization and what is the “internal” organization of it.
If Walmart declared itself to be a ChristoJudeoIsalmicBuddhiacHiduaic organization, does that mean it’s exempt from the laws because it’s now a religious organization?
Suppose the Scientology religion declares all janitors working for them must be Scientologists because they want to convince people even a janitor (and not just rich Hollywood actors/actresses) can be a good Scientologist. Are janitors part of the “internal” organization? Dan the Man(Quote)
jrose says:
Only Thomas would agree they are ministers without the possibility of judicial review. jrose(Quote)
Speude Bradeos says:
Congratulations to the Hosana-Tabor for winning, but ultimately losing. What’s lost in the shuffle here is that, although the decision may be the right one under the First Amendment, the church fired an employee because of her disability. So, while the church justifiably received legal sanction for its actions by the Court, that legal sanction is a long, long way from any sort of moral sanction. Speude Bradeos(Quote)
Sarcastro's Little Brother says:
Louis Farrakhan is a Protestant? Who knew? Sarcastro’s Little Brother(Quote)
Visitor Again says:
Justice Sotomayor certainly had the better argument in her dissent in the eyewitness identification case, Perry v. New Hampshire. Visitor Again(Quote)
The Tumbleweed Farm says:
The US government, however, via its Department of Homeland Security, does have to determine on a daily basis if a particular role within a religious organization does indeed qualify as either “ministerial”, or a “religious vocation” or a “religious occupation”. This has to be done whenever the organization wants to employ a foreign national, and secure either an immigrant visa or an R-1 non-immigrant visa.
There has been an interesting discussion of the recent R-1 rule changes on the AILA site a couple years ago, but I can’t find it now. The Tumbleweed Farm(Quote)
David M. Nieporent says:
That’s wrong on multiple levels. First, there has been no factual finding that the church did anything wrong, setting the ministerial exemption aside. Second, the allegation on the table was that they fired her in retaliation, not that they fired her because of her disability. David M. Nieporent(Quote)
Bored Lawyer says:
How come only some of the comments are being displayed? They seem to stop at 1:30 p.m. Bored Lawyer(Quote)
yankee says:
No, the law in Lukumi Babalu Aye was struck down specifically because it applied only to ritual or ceremonial killings and thus specifically targeted religion. A secular ban on killing animals would have been fine. yankee(Quote)
yankee says:
I agree that they’re not exactly the same, but it would still be pretty odd to say that auto companies’ activities can be regulated, but their selection of employees cannot. yankee(Quote)
Ispep Teid says:
Religious functions exception? Ispep Teid(Quote)
First Amendment 9, EEOC 0 | hogewash says:
Chris Travers says:
I am not aware of any state which has tried to regulate who can have communion wine in Catholic or Protestant communion rituals. Are you aware of any? Has it been successfully challenged? Chris Travers(Quote)
Chris Travers says:
Is there any reason why janitorial work at the Church of the Holy Mop would not necessarily be a religious ritual? Chris Travers(Quote)
Chris Travers says:
Does that include the stunning of animals before slaughter? Does it matter if people specifically talk about desirability of banning kosher slaughter as “inhmane?”
I am not at all sure you can draw a Constitutional line between kosher/halal slaughter and Santaria animal sacrifice. Chris Travers(Quote)
Dan the Man says:
Read the Volokh Conspiracy. Dan the Man(Quote)
Chris Travers says:
Maybe in many religions, but in all?
I mean in many religions worldwide, ceremonial cleanliness is ritually very important. Is it unreasonable to suspect that it is at least reasonable that some religions might require ceremonial cleaning of ritual space, and hence janitors would fill an important ritual function? Chris Travers(Quote)
Chris Travers says:
Such a statute is necessary but not sufficient. The questions are:
1) Does this have an implicit exception somewhere, either mandated by Arkansas statute or Constitution?
2) Has the state ever held that this does regulate religious rituals?
3) Has this been challenged in court over religious liberty issues? If so, what was the result?
All sorts of laws are on the books but until you get to court, it isn’t always clear exactly what is banned. Chris Travers(Quote)
Chris Travers says:
I read the law. It in fact did not only apply to ritual or ceremonial killings. it was struck down in part on the legislative record which expressed a hostility towards such killings.
Similarly if one were to argue in a legislative body that your humane slaughter bill would ban kosher slaughter, and proponents expressed hostility towards kosher slaughter would that be sufficient? Chris Travers(Quote)
Chris Travers says:
She surprised me here— I figured her background would make her too deferential to police and executive power, and was very pleasantly surprised. Chris Travers(Quote)
J. Aldridge says:
Just how does an amendment that limits the power of Congress extend an “ministerial exception” to anyone? J. Aldridge(Quote)
Chris Travers says:
Ummm, anti-discrimination acts passed by Congress cannot regulate freedom of religion or establish religious requirements? If they were Congress could say the Catholic Church would have to ordain women?
I admire your principled lines here but surely this is even within your lines. Chris Travers(Quote)
jrose says:
The legislative record was relied on in Part II-A-2 of the opinion, but that was only two justices speaking (Kennedy and Stevens).
Instead, the Court relied on the text and how the law was applied to conclude:
jrose(Quote)
Anon. says:
This is spot on I think. I would agree there should be a ministerial exception, but I find two major problems with the decision yesterday:
1) I still don’t understand the distinction between Smith still allowing regulation of “outward physical acts” but prohibiting regulation of “an internal church decision that affects the faith and mission of the church itself.” I’m sure for some Native Americans, consumption of peyote is an internal church decision that affects the faith and mission of the church itself. At the very least, this should have gotten more than one paragraph in the decision.
2) Less talked about here was the out the court allowed itself at the end of the decision, basically saying the decision only applied to this case in particular and that “[t]here will be time enough to address the applicability of the exception to other circumstances if and when they arise.” That’s all well and good, but it seems strange to issue a self-consciously sweeping opinion then admit it may or may not apply to anything else other than this particular lawsuit. Anon.(Quote)
ReaderY says:
I don’t think the result was very much affected by the arguments on the other side, but it does show some of the dangers of too envelope-pushing an argument. The plaintiffs, perhaps fortified by Smith, had argued that they must win because the Religion Clauses essentially have no meaning at all. They esentially set themselves up for an argument that if the Clauses have any meaning at all, they must lose. ReaderY(Quote)
Anon. says:
Re-reading Smith, the decision seems to completely misread the portion of Smith it quotes. Hosanna Tabor argues Smith “distinguish[es] the government’s regulation of ‘physical acts’ from its ‘lend[ing] its power to one or the other side in controversies over religious authority or dogma.’” In short, beliefs are one thing, but acts are another.
But the very portion of Smith quoted explicitly states that “the ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts.” On that very page, Smith wasn’t distinguishing beliefs from acts, but acknowledging there often is no distinction. But so long as the law in question is general in application (i.e. not specifically singling out a particular religion), then there’s no constitutional violation.
I just don’t get how you live with the belief/act distinction in one case without overruling the decision that says the belief/act distinction is often meaningless. Anon.(Quote)
Yankev says:
Yes,parsonage is one advantage, and at least one tax case held that a Cantor who was licensed by the state of perform marriages also qualified for parsonage. I have to say this is the first time I have seen parsonage advanced as a reason to confer smicha on women. Frankly, that argument strikes me as more of a make-weight than a substantive justification.
I don’t waste a lot of time with JOFA or Chovevei Torah; has this argument been advanced elsewhere? Has it been advanced by any reputable Orthodox organizations? Yankev(Quote)
Chris Travers says:
I read the statute and concluded it would also apply, for example, to euthanizing pets at home, or killing injured wildlife. Maybe these things don’t happen within city limits so much but at least as someone who spent a lot of my life in rural environments, I don’t think you can say these are negligible. Chris Travers(Quote)
Steve2 says:
Appears I misremembed the details of my favoritely-named case. Steve2(Quote)
Yankev says:
Not according to the EEOC, who charged that she was fired in retaliation for filing a complaint. Did the EEOC ever charge that the initial request for resignation over the narcolepsy was unlawful?
From the SCOTUS opinion, it seems to me that the employee’s medical condition may well have prevented her from performing her job. [Caveat: I am not an ADA lawyer.] She spent the first 5 months of the school year on (presumably paid and presumably indefinite) disability leave, and the school quite understandably hired someone to finish her contract for the year. In January she announced she was ready to return to work in February but the school expressed doubts about her condition. Was the school supposed to hire her even though someone else was now doing the job? Should the school have not contracted someone to take over, and instead shortchange the students by giving them a series of subtitute teachers, with no continuity? Fire the teacher they had hired to take over the contract? The school’s conduct does not strike me as egregious. The teacher then complained to the government even though her terms of employment required her to use the church’s mediation/dispute resolution system.
ADA is not my field of law and I am perfectly willing to believe that the request for resignation would have been unlawful in a secular school. But this does not strike me as a case of saying “We won’t hire a English teacher who uses a wheel chair.” And apparently it did not strike the EEOC that way either. Yankev(Quote)
Speude Bradeos says:
You’re incorrect, but it’s an easy one to get wrong. This case was not just about “retaliation”. Yes, the suit filed by EEOC was based on “retaliation”, but Perich’s original claim was based on termination as a result of her disability. If you read the opinion you would see that the Chief specifically states: “Perich filed a charge with the Equal Employment Opportunity Commission, alleging that her employment had been terminated in violation of the Americans with Disabilities Act, 104 Stat. 327, 42 U.S.C. 12101 et seq (1990).” This is crucial, because you can’t get to the “retaliation” claim (i.e. the claim that EEOC based its suit on) without first determining that there had been an ADA violation, since the “retaliation” claim falls under the ADA. In other words, what was happening here was an ADA retaliation claim. Although the Court limited its opinion to discussion of the “ministerial exception” in the context of the “retaliation” claim, the effect is much more far reaching (i.e. it’s not just limited to “retaliation” claims). As a result of this decision, a religious institution can now termination employees (albeit, only employees who have substantial religious functions) based solely upon their disability alone, if they so choose to do so. The part that I think you’re failing to see (and this may be easily explained if you only read the opinion, as opposed to the briefs) is that Hosana-Tabor made the decision to terminate her based upon her disability, and and then when Perich threatened to seek a legal remedy, Hosana-Tabor rescinded her calling (which is the only part that the “retaliation” claim was based upon). She was going to be terminated regardless of the lone fact that lead to the “retaliation” claim, and that termination would have been solely limited to her disability. While there wasn’t a finding of fact (i.e. by the trial court itself) on this, the opinion basically acknowledges that she was terminated based on her disability, and Hosana-Tabor didn’t dispute this. Their position was not that they didn’t discriminate based upon her disability, but rather that there was nothing Perich could do about it. That’s precisely the problem with this decision, in my opinion. As a result of this holding, a religious institution can now take adverse employment action against an individual solely on the basis of that employee’s disability. That’s why I said while the church (and by “church”, I don’t just mean this church) may have won legally, they lost morally. Speude Bradeos(Quote)
Mike Twain says:
From a purely religious perspective (I’m a conservative Lutheran so I understand the doctrinal issues here) this is actually a resounding loss for both the congregation and the petitioner no matter what the Supreme Court says. :)
One of the two should have followed 1 Corinthians 6:7
Mike Twain(Quote)
Speude Bradeos says:
You’re incorrect, but it’s an easy one to get wrong. This case was not about “retaliation”. Yes, the suit filed by EEOC was based on “retaliation”, and Perich’s original claim was based on termination as a result of her disability. The fact is, this decision was not about either of these things. This decision was about a bigger, overarching issue (i.e. whether or not the ADA applies in this situation at all). This is crucial, because you can’t get to the “retaliation” claim (i.e. the claim that EEOC based its suit on) without first determining that there had been an ADA violation, since the “retaliation” claim falls under the ADA. The Court determined that the ADA doesn’t apply because of the “ministerial exception”. The effect of this decision is much more far reaching (i.e. it’s not just limited to “retaliation” claims). As a result of this decision, a religious institution can now termination employees (albeit, only employees who have substantial religious functions) based solely upon their disability alone, if they so choose to do so. This decision basically results in a bar to the courthouse door to anyone who has an ADA claim, but has ministerial duties as part of their employment. While the EEOC claim was about an ADA retaliation claim, this decision really has very little to do with that.
As for your point about factual findings, the part that I think you’re failing to see (and this may be easily explained if you only read the opinion, as opposed to the briefs) is that Hosana-Tabor made the decision to terminate her based upon her disability (which is the part that Perich’s original EEOC claim was based upon), and and then when Perich threatened to seek a legal remedy, Hosana-Tabor rescinded her calling (which is the only part that the “retaliation” claim was based upon). She was going to be terminated regardless of the lone fact that lead to the “retaliation” claim, and that termination would have been solely limited to her disability. While there wasn’t a finding of fact (i.e. by the trial court itself) on this, the opinion basically acknowledges that she was terminated based on her disability, and Hosana-Tabor didn’t dispute this. Their position was not that they didn’t discriminate based upon her disability, but rather that there was nothing Perich could do about it. That’s precisely the problem with this decision, in my opinion. As a result of this holding, a religious institution can now take adverse employment action against an individual solely on the basis of that employee’s disability. That’s why I said while the church (and by “church”, I don’t just mean this church) may have won legally, they lost morally. Speude Bradeos(Quote)
Speude Bradeos says:
You’re incorrect, but it’s an easy one to get wrong. This holding was not about “retaliation” at all. The suit filed by EEOC was based on “retaliation”, but Perich’s original claim was based on termination as a result of her disability. Both of those things are also irrelevant. Before you get to either of those questions, you have to determine if there is an ADA violation. There is no doubt that Perich would have been a qualified individual under the ADA, and would have been eligible to file her claim (either the discrimination claim that she filed or the retaliation claim that the EEOC filed). The position that Hosana-Tabor advocated for, however, and the Court ultimately validated, was that since Hosana-Tabor was a religious institution and Perich was an employee performing religious functions, it made no difference whether Hosana-Tabor terminated her because of her disability. In other words, the “ministerial exception” operates as a bar the courthouse door for anyone seeking to file an ADA (or other employment) action against such an employer.
As for your first point (i.e. about no factual finding), while there wasn’t a finding of fact (i.e. by the trial court itself) on this, the opinion basically acknowledges that she was terminated based on her disability, and Hosana-Tabor didn’t dispute this. Their position was not that they didn’t discriminate based upon her disability, but rather that there was nothing Perich could do about it. That’s precisely the problem with this decision, in my opinion. As a result of this holding, a religious institution can now take adverse employment action against an individual solely on the basis of that employee’s disability. That’s why I said while the church (and by “church”, I don’t just mean this church) may have won legally, they lost morally. Speude Bradeos(Quote)
Owen H. says:
If courts were specifically forbidden from considering sharia law, would that mean that mosques would not be afforded protection of the ministerial exception? Owen H.(Quote)
Speude Bradeos says:
Sorry for the multiple posts, everyone. I was having some browser problems. That explains the first (long) post, and the second (much shorter post); I was trying to resummarize exactly what I’d said, from memory. :) Speude Bradeos(Quote)
loki13 says:
As much as I dislike the outcomes that Thomas comes up with, I will (usually) give him point for consistency. But he’s had some truly atrocious opinions this week.
This is one of them. If he had wanted to write a special concurrence grounding his opinion in something other than the Establishment Clause, then I’d have no problem with it. But if he wants to throw bombs, at least be consistent about your bombthrowing, even when it doesn’t lead to outcomes you don’t like. It would appear that he hates the Establishment Clause, because it leads to tricky questions involving creches at airports, but loves it here. Which is odd.
And as for his solo dissent in the Brady/New Orleans case? Again, wow. Maybe he could write an opinion about how he doesn’t believe that their should be any sort of Brady obligation. But after just authoring an opinion about how, despite systemic failures to over materials by the exact same prosecutors office, there was no remedy this was... um... no big deal? Might be one of his worst opinions ever. loki13(Quote)
Speude Bradeos says:
Well, first, that’s not even close to the only types of cases that the ADA covers. Honestly, what you described in your post isn’t even close to how the ADA actually operates. If she was a qualified individual with a disability (which she would be under the ADA, almost without question, but for the ministerial exception), her termination, under the facts presented, would have been unlawful. Second, yes, it did strike the EEOC that way, or they wouldn’t have filed the retaliation claim. It’s important to realize that it was an ADA retaliation claim. You can’t get to an ADA retaliation claim without first establishing that the employee was protected by the ADA. Speude Bradeos(Quote)
Yankev says:
Wrong, wrong, wrong. You can’t can’t get to the “retaliation” claim (i.e. the claim that EEOC based its suit on) without first determining that there had been a claim of an ADA violation. If there had been strong evidence that the underlying claim was valid, why wouldn’t the ADA to pursue both the underlying claim AND the retaliation claim?
I think we all agree that Perich claimed that she was unlawfully fired for being disabled. That’s not the same as agreeing that she was infact unlawfully fired for being disabled. Yankev(Quote)
Bored Lawyer says:
This is not correct. I think that it is established law that a retaliation claim does NOT depend on there being a valid underlying discrimination claim. All that is requried is that the employee CHARGED the employer with discrimination (whether true or not), and that in retaliation the employer fired him or her. Bored Lawyer(Quote)
yankee says:
Or for any other reason. For example, if a religious hospital demands that the employees work unpaid overtime and the employees complain that this would violate wages & hours laws, the hospital can fire them and the employees could not raise an anti-retaliation claim. yankee(Quote)
Laura(southernxyl) says:
IIRC, the links in the previous post on this subject indicated that:
The principal told Perich they’d hold her job while she got her narcolepsy under control;
She did get her narcolepsy under control, according to her and according to her doctor;
She told the principal in December that she’d be returning to work, and followed that up in January with a firm date and a note from her doctor;
Following this the principal lied to the congregation and told them that Perich would not be able to return to work and got them to agree to termination.
Because nothing says “Christian” like thinking somebody’s personal issues are icky and lying so that you won’t run even the slightest risk of being inconvenienced by them, and kicking people when they’re down. Laura(southernxyl)(Quote)
Laura(southernxyl) says:
BTW, my daughter’s high school chemistry teacher had to have heart surgery that took him out most of the semester. The school found a single substitute, a retired chemistry professor I think, who took over that class until the teacher could come back. But this was a public school so it kind of had to do the right thing. Laura(southernxyl)(Quote)
warrl says:
Since when is the Supreme Court supposed to be a court of morality? warrl(Quote)
Speude Bradeos says:
Yep, you’re right. I apologize. Ultimately, though, it really doesn’t matter all that much because the ultimate issue here wasn’t really retaliation under the ADA. The main point I was getting at in that section still stands: if the ADA doesn’t apply, there can be no retaliation claim. What I should have said, and really meant to say, was this: “you can’t get to the “retaliation” claim (i.e. the claim that EEOC based its suit on) without first determining that the ADA applies (i.e. that there is a covered entity), since the “retaliation” claim falls under the ADA.” But yeah, I apologize for getting that wrong. That apology also goes out to David M. Nieporent (for my sloppy response) and Yankev (who also correctly called me on this). Speude Bradeos(Quote)
Speude Bradeos says:
My suspicion is that maybe they thought the retaliation claim was an easier case to establish and trying to maintain them together would be factually difficult. Given the facts of this case, if she argued that they fired her because she was disabled, it would be hard to argue (although not impossible) that they fired her in retaliation for threatening the suit, and vice versa. If you just pursue one of the claims, you don’t have to deal with some of the contradictions that would arise. Speude Bradeos(Quote)
Yankev says:
Sounds like a good strategic decision. But it’s still short of proving that they did indeed fire her for being disabled. Yankev(Quote)
ReaderY says:
Examples of very straightforward routine violation of discrimination laws are easy to come by: Only men can be Catholic priests. The discrimination laws simply can’t be allowed to apply without the government determining who priests should be. One might think disability morally different from sex, but there are certainly people who would consider what the Catholic Church does as being just as immoral.
Examples of a ministerial exception applying to a janitor aren’t hard to come by either. In the Biblical Temple, some of the janitors had to be Levites because there were areas others weren’t even allowed to enter. In Islam the janitors in the Mecca holy sites need to be Moslems. A religion which has holy sites off-limits to unbelievers has a good case that the holy site maintenance people are entitled to be covered. ReaderY(Quote)
David M. Nieporent says:
The charge she filed with the EEOC did indeed involve a claim of discrimination, but the EEOC rejected that, and the only claim that ever was brought to court was for retaliation.
That’s incorrect. A company need not substantively violate the ADA to trigger an ADA retaliation claim. All that’s required is that there be protected activity under the ADA — i.e., asserting an ADA claim, whether valid or not.
I don’t disagree. Indeed, they can terminate ministerial employees for any reason, without regard for any anti-discrimination laws.
The part that I think you’re failing to see (and this may be easily explained if you only read the opinion, as opposed to the briefs) is that Hosana-Tabor made the decision to terminate her based upon her disability, and and then when Perich threatened to seek a legal remedy, Hosana-Tabor rescinded her calling (which is the only part that the “retaliation” claim was based upon).She was going to be terminated regardless of the lone fact that lead to the “retaliation” claim, and that termination would have been solely limited to her disability.While there wasn’t a finding of fact (i.e. by the trial court itself) on this, the opinion basically acknowledges that she was terminated based on her disability, and Hosana-Tabor didn’t dispute this.That is not remotely correct. If you read the briefs, as well as the lower court opinions, you’ll see that the notion that she was terminated for her disability wasn’t even at issue. The EEOC did not even pursue such a claim, because they knew how much of a loser it was. She was replaced because her job had been filled in her absence, not because of her disability. Then they rescinded her call because of her threat to bring legal action.
Their position was not that they didn’t discriminate based upon her disability because that wasn’t the claim against them. Again, the only claim ever brought to court was a retaliation claim.
The alternative would have been for the government to be able to choose religious leaders, which would have been a much bigger loss. David M. Nieporent(Quote)
J. Aldridge says:
No power was delegated in Congress over domestic affairs of the states or labor so congress has no authority to do any of that. So again how does the First Amendment create an “ministerial exception” for something congress has no authority to act upon? J. Aldridge(Quote)
David Schwartz says:
It’s worse than that. A Church can refuse to let a person be a Priest just because of their gender! David Schwartz(Quote)
John David Galt says:
The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.
Am I right in thinking this means that the plaintiff’s ADA case can still go forward (to the extent that remedies other than reinstatement are available from EEOC)? John David Galt(Quote)
ProfNickD says:
I get where you’re coming from — if the Constitution were respected to the letter, virtually no federal labor/employment laws could exist in that Article I, section 8 grants no such power (to regulate contracts between employer and employee) to the federal government. And the Contract Clause itself, well, obviously forbids it.. You wouldn’t have to bother arguing whether the Establishment Clause forbids applying federal emploment regulations to religious employers and janitors.
Such is the problem with the progressive legal agenda: it requires all sorts of contortions around, and re-reading of, the Constitution, as evidenced by the discussion over ordaining janitors. ProfNickD(Quote)
jrose says:
No:
jrose(Quote)
jrose says:
The Court said:
jrose(Quote)
Speude Bradeos says:
David M. Nieporent:
She was replaced because her job had been filled in her absence, not because of her disability.Then they rescinded her call because of her threat to bring legal action.
I’m not sure where in the record you’re getting that from. Yes, they filled the position, but it was with a temporary contract teacher. She wasn’t “replaced” because her job had been filled in her absence. It’s very clear from the record that Hosana-Tabor treated Perich’s medical condition as if the situation was going to be subject to ADA requirements. It seems like you are suggesting that if Hosana-Tabor’s filing of the position with a contract teacher and then not allowing Perich to reclaim the position when she was medically cleared to teach would be a reasonable accommodation. I can’t agree with that. No where in the record, anywhere, did anyone say that they didn’t pursue the discrimination claim because it was a “sure loser”, as you suggest. It’s far more likely that EEOC chose the retaliation claim because it was the easier of the two and it would be untenable to bring both claims simultaneously due to the particular facts of this case. Speude Bradeos(Quote)
Chris Travers says:
So, suppose Congress stated that no male could buy wine in interstate commerce. Would there be a ministerial exception for communion wine or would you say that priests would have to become vintners? Chris Travers(Quote)
Chris Travers says:
That may be what the court ruled, but I am not at all sure it follows. The fact is that the statute would allow the city to decide on an individual basis whether any given euthanasia was “necessary.” In other words, “don’t try this at home.” Chris Travers(Quote)
J. Aldridge says:
Suppose Congress said no male could buy wine in Rome and it asserts the authority to pass such a law under the power to regulate commerce with foreign nations. Would it be proper for the court to create a ministerial exception while ignoring the unconstitutionality of the act? J. Aldridge(Quote)
J. Aldridge says:
Suppose Congress says no one in Rome can buy wine under its authority to regulate commerce with foreign nations. Would it be proper for the court to invent an ministerial exception for the catholic church such an unconstitutional act? J. Aldridge(Quote)
J. Aldridge says:
Suppose Congress says no one in Rome can buy wine under the authority to regulate commerce with foreign nations. Would it be proper for the court to invent an ministerial exception for catholic’s while ignoring Congress’ unconstitutional act of doing something the constitution clearly does not authorize them to do? J. Aldridge(Quote)
jrose says:
I agree the statute does allow the city to make individual decisions. and that’s another reason why it failed:
But also, the Court noted they empirically observed no cases (regardless of hypothetical cases in theory) where an exception from the ordinance wasn’t made except for the Santerias.
Additionally, I’m not sure what point you are making, and whether it is relevant to Hosanna Tabor. jrose(Quote)
Chris Travers says:
So if the vast majority of non-Jews were stunning animals before slaughter for food, and Congress requires stunning before slaughter, that’s under the same precedent because it’s targetting kosher slaughtering practices, right? Chris Travers(Quote)
Visitor Again says:
She surprised me here— I figured her background would make her too deferential to police and executive power, and was very pleasantly surprised.
_________________________________
Me, too. But then Justice Sotomayor is the only one of the justices who has real trial level experience as a prosecutor and a judge and she is the only one of them who knows what really goes on in our criminal “justice” system. This extremely principled dissent and her excellent memorandum opinion the day before in that false testimony case from California (Maxwell)–an opinion she went out of her way to write to counter Justice Scalia’s terrible dissent from denial of certiorari–have moved her way up in my estimation. Visitor Again(Quote)
jrose says:
Possibly. What’s your point? jrose(Quote)
Chris Travers says:
I was very skeptical of both Alito and Sotomayor in the nomination process. Alito approached the confirmation hearings as a soldier of textualism and I saw that as dangerous. Sotomayor struck me as possibly too deferential to executive authority.
I am happy to say I was wrong on both counts. I may not always agree with Alito’s opinions, but he brings an incredible ability to oral argument to back lawyers into corners they can’t get out of, particularly when that government lawyer seems to be Malcolm Stewart.... That shows an extremely sharp mind and the sort of person who should be on the court.
My opinion of Sotomayor is still developing but so far, I am very happy she is on the court as well especially after this dissent. Chris Travers(Quote)
Chris Travers says:
I don’t think Congress can Constitutionally ban kosher slaughter. Chris Travers(Quote)