Wednesday, July 19, 2017
The Court of Appeals for the Second Circuit has handed down its opinion in the Fratello case, which involved a sex-discrimination and retaliation lawsuit filed by the former principal of a Catholic school. The Court (correctly) concluded that her claims were barred, given the Supreme Court's Hosanna-Tabor decision. "Although her formal title was not inherently religious, the record reflects that, as part of her job responsibilities, she held herself out as a spiritual leader of the school and performed many religious functions to advance its religious mission." (Along with our own Tom Berg and several other religious-freedom scholars, I filed an amicus brief in support of the school.) The happy warriors at The Becket Fund have a detailed page on the case, here.
I should confess to being just a bit disappointed -- perhaps it's just wounded and unwarranted pride -- by a footnote in the opinion. Discussing the basis for the ministerial exception, the Court said this:
Any autonomy that religious groups have over their internal affairs is premised on the ʺvoluntaryʺ decisions of individuals to engage in ʺreligious activity.ʺ Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1403 (1981) (noting that ʺ[t]he [Supreme] Court has repeatedly stated that all who join a church do so with the implied consent to [the churchʹs] government, to which they are bound to submitʺ (internal quotation marks omitted)). Indeed, ʺwhat might be called institutional or church autonomy is ultimately derived from individual rights.ʺ Richard Schragger & Micah Schwartzman, Against Religious Institutionalism, 99 VA. L. REV. 917, 920 (2013); see also id. at 957‐59 (noting that the conception of a ʺchurch as a voluntary associationʺ of individual conscience can be traced to the philosopher John Locke (citing John Locke, A LETTER CONCERNING TOLERATION 28 (James H. Tully ed., 1983) (1629))); Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. REV. 346, 378 (2002) (ʺBy the late eighteenth century, some version of Lockeʹs basic view of the nature of liberty of conscience had been formally embraced by nearly every politically active American writing on the subject of religion and the state.ʺ).
Although I like and admire Profs. Schragger and Schwartzman, I'm inclined to be for "religious institutionalism" and have a different view about the nature and origins of religious groups' "autonomy." See, e.g., this and this. Sigh. Not even a "But see ..." cite. All is vanity . . .