September 25, 2013
Murray on the HHS mandate, Hosanna-Tabor, and Religious Organizations
My friend and former student, Brian Murray -- now an attorney in Pennsylvania -- has posted an adaptation of forthcoming law-review article ("The Elephant in Hosanna-Tabor") at Public Discourse. Here is a taste:
The history of the First Amendment indicates a strong preference for institutional religious autonomy. Religion remains special in the eyes of the law. This tradition of respect and deference must guide any legal framework that purports to determine whether an organization qualifies as religious under the Free Exercise Clause. Hence, the Court should consider placing a presumption of religiousness at the forefront of any test, finding its support in the divergent opinions among the founding fathers, the prevalence of unconventional religious experience throughout American history, and current precedent, which admits that religion is special--even if it is difficult to define. Such a presumption comports with the Court's inclusive language in Hosanna-Tabor.
However, this presumption cannot be the end of the analysis. Left unchecked, it could conflict with Employment Division v. Smith because an organization's self-characterization as religious is not entirely internal. . . .
Check it out.
Mr. Murray suggests that before applying the ministerial exception, one must determine if the entity is the kind of entity that can claim that exemption: is it a "religious organization." But whether or not that question is prerequisite for the ministerial exception, it is not a prerequisite for the simple exercise of religion. The First Amendment does not say it protects religious organizations. It says it protects religious exercise--without specifying the subject engaging in that exercise. An entity need not be a "religious organization" (certainly not in a narrow sense) in order for it to engage in an exercise of religion. Bellotti says that when asking if a First Amendment right is implicated, one doesn't ask what is the nature of the acting entity, as if speech could only occur if an entity is in the "speech business." One looks instead at the activity. It seems even more apparent that an entity need not show it can claim the ministerial exception in order to exercise religion. After all, "ministering" is not exhaustive of the ways to exercise religion. The fact that the ministerial exception exists and has some scope regarding its coverage is part of what the religion clauses mean, but it need not encompass all or even many applications of the free exercise clause. The fact that churches and "religious organizations" receive special treatment under the First Amendment does not mean that they are the only ones that exercise religion. Ministerial exception protection is a floor in the First Amendment, not a ceiling.
Posted by: Matt Bowman | Sep 26, 2013 11:15:03 PM
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