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.

Wednesday, February 29, 2012

Sullivan on "The Church"

At The Immanent Frame, Winnifred Fallers Sullivan this interesting post, "The Church," about the Hosanna-Tabor decision and other things.  Her basic point:  The idea of "the church" does a lot of work in the case but . . . "what is the church?"  In her view, the Court's discussion of the relevant history is too "breezy" in its dealings with the different ecclesiologies that were in play in the historical events discussed by the Court.  (I think the breeze-level was about right, given that this is a Supreme Court opinion about how to operationalize, through doctrine, the commands of a particular positive-law text, but that's not the point.)  Here is the last paragraph:

Alito, with the EEOC, sees the rights of religious organizations with respect to ideological control of their members as similar to that of all other voluntary associations, a right founded in the freedom of association expressed in the First Amendment, not in the rights of religion: “Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.” This turn to the voluntariness of American religious life corresponds much more closely to what disestablished religion looks like in the United States today and to how most Americans understand their relationship to religious communities, one not of top-down hierarchy but one of bottom-up participation. It is also rooted in another reading of the history the Majority tells, one that tells a story of the freedom of Christians, and eventually of non-Christians as well. It is an understanding that sees Ms. Perich as the possessor of rights, not “the church.”

As MOJ readers know, I think it is (obviously) true that Ms. Perich has rights (though she does not have, in my view, a legal right to serve as a called minister in any particular ecclesial body), and also clearly true that "the church" does, too, against the state.


Garnett, Rick | Permalink

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