Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, January 31, 2011

"Church must make women bishops, say MPs"

Fascinating.  It's obvious (I hope!) that it would be Sedition-Act-level unconstitutional if a government in the United States purported to require a religious community to make anyone a bishop whom that community did not want (for any reason) to make a bishop.  But, of course, in the United Kingdom, things are more . . . complicated.   


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Not sure how different, Rick, if the claims of scholarly writers who are adamantly opposed to the ministerial exemption are taken seriously! So far, they haven't been, to the courts' great credit.

Posted by: Marc DeGirolami | Jan 31, 2011 12:15:35 PM

Marc, you could be right. But, in my experience, such as it is, even the critics of the ME tend to concede that the government not only should not, but could not, directly compel ordinations. (But, maybe they are just being prudent?)

Posted by: Rick Garnett | Jan 31, 2011 12:17:23 PM

Rick, I agree with you as respects direct compulsion -- can't think of anyone recommending that. But do you think that direct compulsion can effectively be required by couching the legal requirement in the language of equality or neutrality? I suspect so.

Posted by: Marc DeGirolami | Jan 31, 2011 12:20:24 PM

I guess I predict that, if the issue were ever pressed, a court would find a way to say that (something like) the no-entanglement rule of Lemon forbids direct regulation of ordination and the like. (But, of course, I assume that Congress could decide that no groups which "discriminate" on the basis of sex may qualify as 501-c-3s.)

Posted by: Rick Garnett | Jan 31, 2011 12:24:30 PM

Tax exemption and other benefits that religious groups are granted that aren't required by the first amendment can almost certainly be conditioned on meeting certain equality norms. The Citizens United Court may not agree, of course, but in terms of law, not vote-counting, there's no reason Congress can't condition extraneous benefits on equality and non-discrimination requirements.

Posted by: Andrew MacKie-Mason | Jan 31, 2011 12:41:18 PM

Andrew, I'm curious what you are getting at with your invocation of the "Citizens United Court."

Posted by: Rick Garnett | Jan 31, 2011 12:45:38 PM

@Andrew --> If, that is, you assume that freedom from taxation is merely an extraneous benefit.

Posted by: Matt Bowman | Jan 31, 2011 12:54:13 PM

Freedom from taxation is not just for religious and charitable organizations. It is a human right. End the tyranny!

Posted by: David Nickol | Jan 31, 2011 3:19:23 PM

Nice post, Rick. I just wanted to tag in and say that it's also a really good example of why church autonomy (and the ministerial exception) are grounded in Establishment Clause concerns, not just Free Exercise concerns. In nations with an established church, the state chooses the church's leaders. In England, it was Parliament; in Massachusetts, it was the voters.

Posted by: Chris Lund | Jan 31, 2011 3:30:12 PM

@Rick: Citizens United relies at least partially on the idea that Congress cannot limit the First Amendment activities of a certain kind of association, even when that association receives certain benefits from government recognition. There's a chance that logic could be extended to saying that tax-exemption can't be conditioned on a waiver of First Amendment rights. I don't think that argument holds water in either case, but there's a chance it could make it through the court.

@Matt: freedom from taxation is most certainly not guaranteed to religious institutions by the First Amendment.

Posted by: Andrew MacKie-Mason | Jan 31, 2011 5:20:23 PM

I guess we'll all find out, sooner than later.

Posted by: Matt Bowman | Feb 1, 2011 10:29:09 AM