Mirror of Justice

Amicus Brief: The Definition of "Minister" and the Original Understanding of the 1st Amendment

Three cert petitions have been filed in the Supreme Court recently on the issue whether teachers with religious teaching functions in religiously grounded schools are "ministers" for purposes of the First Amendment's "ministerial exception," affirmed unanimously in the Hosanna-Tabor decision. Two are from the Ninth Circuit (Our Lady of Guadalupe School v. Morrissey-Berru,  St. James Parish School v. Biel); one is from the California appellate courts (Stephen Wise Temple v. Su). In all three cases, the lower courts held that the teachers' religious functions were outweighed by the fact that they lacked a minister-like "credential, training," or title and/or were not "held out" as ministers by themselves or the school.

In the first-filed of these cert cases, Our Lady, the Ninth Circuit found the teacher to be a non-minister even though it admitted that she had "significant religious responsibilities": she “committed to incorporate Catholic values and teachings into her curriculum,” including a religion/Catholicism class she taught, and also “led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year.” The court objected to her lack of "credential, training, or ministerial background." The petitions in Our Lady and the other cases argue--to simplify a bit--that one who performs significant religious functions (leadership, teaching, liturgy/worship, etc.) in a religious organization should be considered a "minister" and should not be excluded because of "credentials" like title or training.

With the students in my religious liberty clinic and with the Christian Legal Society, I've filed an amicus brief arguing that a focus on "minister-like" title, training, or credential will discriminate against unfamiliar religions and will invite courts to second-guess an organization's understanding of how people qualify to be its leaders.

We've also presented what I think is a valuable originalist argument: that "narrow definitions of 'Minister,' especially through requirements of ministerial education or credentials, were a chief evil that helped spur adoption of the First Amendment," and that the founding generation would have regarded as violations of free exercise and incidents of establishment. Here's a bit:

       The Constitution’s religious freedom guarantees arose in significant part from disputes between established colonial churches and Pietist dissenters, including “New Light” Congregationalists in Connecticut and Baptists in Massachusetts and Virginia....

      The New Lights opposed the formally trained “legal preacher,” preferring a “layman who had experienced conversion” personally....  They believed that “the learned ['Old Light' establishment] clergy had lost touch with the spiritual needs of the common man and no longer really served as ministers of God to them.”

       New England colonial legislatures, which reflected the views of the “Old Lights,” responded by taking steps to restrict or disfavor informally trained ministers. [McLoughlin, 1 New England Disssent] at 363. In 1742, Connecticut passed a law prohibiting “itinerants” from preaching without approval of an established parish. That same year, it also passed legislation “preventing any church or parish from choosing a minister who lacked a college degree.” 

       Likewise, Massachusetts passed a law in 1760 preventing legal recognition of parish ministers unless they had “academy or college training, or had obtained testimonials from the majority of the ministers already settled in the county.” Jacob C. Meyer, Church and State in Massachusetts 51 (1930). The law disqualified uncredentialed ministers, primarily Baptists, from receiving funds that were collected by each town’s authorities for support of worship.

       ... Like the[se] founding-era laws, the Ninth Circuit requires that a minister must have some sort of “credential, training, or ministerial background” [in this case, to fall within the ministerial exception]/

St. Thomas students Erik Money contributed excellent research and drafting to the brief.

Paul Marshall on "Rights, Institutions, and Religious Freedom"

A very helpful essay, by Paul Marshall (Baylor), at the Religious Freedom Institute's Cornerstone Forum:

One reason that institutional religious freedom has become so controversial in the United States in recent years relates to the American people’s historical understanding of rights as applying only to individuals. Contentious U.S. Supreme Court decisions such as Citizens United and Hobby Lobby have also contributed to widespread suspicion about the general idea of institutional rights, especially in the form of recognizing the legal personhood of corporations.

To begin to grasp the meaning and scope of institutional religious freedom requires outlining its main aspects and considering how they fit together. Growing uncertainty over the very nature of rights presents a key challenge in this regard so we will address that first. . . .

Read the whole thing!

And then -- why not? -- read this.

 

A quick thought on Subsidiarity, in response to David Cloutier

David Cloutier (CUA, Theology) has a helpful piece in a recent issue of Commonweal called "The Paid Family Leave Impasse:  How Catholic Social Teaching Can Help."  Among other things, he explores the issue, and some policy proposals, using the principles of Subsidiarity and Solidarity.  Here's a bit:

Catholic social teaching can help us understand, and perhaps correct, the failure of both parties to address this issue. The problem is not that each party fails to balance solidarity and subsidiarity—as if some fifty-fifty compromise could be worked out. Rather, neither party understands the way solidarity and subsidiarity ought to be related to each other. That relation is one of means to ends. Solidarity is meant to govern the end of social action, while subsidiarity is the principle that determines the best means to that end. As John Paul II puts it in Centesimus annus, subsidiarity means that “a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it…always with a view to the common good.” Understood in this way, subsidiarity is not just another name for libertarian individualism; rather, it is about the importance of genuine participatory structures for achieving solidarity.

It's entirely true, of course, that "subsidiarity is not just another name for libertarian individualism" or, as Cloutier says later, "atomistic individualism."  (It's also not simply about devolution or federalism, as others have pointed out.)  That said, I'm not sure that it's quite right to say that the subsidiarity principle is (only?) about identifying the "best means to [the] end" (i.e., "Solidarity").  I take the subsidiarity principle to (also?) be about pluralism, social ontology, the reality of group personhood, and the moral and legal rights and duties of non-state societies.

I found this essay by Russell Hittinger, "The Coherence of the Four Basic Principles of Catholic Social Doctrine," really helpful on this (and many other!) point(s).  

Chinese Totalitarianism and Catholic Witness

The 2018 Sino-Vatican Provisional Agreement on nominating and ordaining bishops must be assessed in the harsh light of Xi’s policy. Bishops are critical to the well-being of Catholics and the Church. They are simultaneously shepherds and public witnesses to the truths taught by the Church. If they are deceivers, history and contemporary events make abundantly clear that everyone suffers except opponents of the Church. If they are holy and courageous men, willing to witness the truth as taught by the Church, Catholics and non-Catholics benefit. This is as true in China as it is in any other country.

Full article by Thomas Farr here.

Kevin Lee: "Christian Legal Scholarship Today: Still Light, More Unbearable"

Recalling that David Skeel's The Unbearable Lightness of Christian Legal Scholarship was written just over ten years ago, MOJ friend Kevin Lee reflects here on the current status of Christian legal scholarship (which he thinks is not good) and the work that remains to be done.

Espinoza Amicus Brief: Government Benefits and Other Religion Clause Cases

Espinoza v. Montana Dept. of Revenue is the next Supreme Court religion case on the merits, and it is receiving good analysis, including from Rick and from Marc and Mark. 

With Doug Laycock and counsel at the Christian Legal Society (Kim Colby, Reed Smith), I've co-drafted this amicus brief for 17 religious and educational groups, including the Catholic bishops, the Orthodox (Jewish) Union, the LDS Church, the Seventh-Day Adventists, the Southern Baptists, the National Association of Evangelicals, the Missouri-Synod Lutherans, World Vision, and several others. The brief covers several issues.

First, it explains why the Montana Supreme Court violated the Free Exercise Clause by using a discriminatory state constitutional provision, one that singles out religious schools for exclusion, to strike down a neutral school-choice program under which scholarships encouraged by tax credits support religious-school students only because their families choose to use religious schools.

We also explain how cases like this one, involving programs of benefits that include religious schools equally with other schools, relate to other categories of cases under the Religion Clauses. Those others include the issue, now returning to the Court in a couple of certiorari petitions, whether the Free Exercise Clause requires more than just equal protection for religion from government regulation  but requires special protection, in the sense that even a generally applicable law must have a strong justification for imposing significant burdens on free exercise. Our key point is that the right to equal inclusion of religious schools in benefit programs ultimately rests on the principle not that religion should be treated the same as everything else, but that the government should respect and protect private choice in religious matters (what Doug has long called "substantive neutrality," Michael McConnell has called "incentive neutrality," and I have called "voluntarism"; we use all the terms in the brief). A key passage:

       Applying a general law to a religiously motivated practice may be formally neutral, if the law treats religious and secular violations alike. But if the law significantly burdens religious practice, it prevents people from exercising voluntary religious choice and thus lacks substantive neutrality. The threat of civil or criminal penalties or loss of government benefits profoundly discourages the prohibited religious practice.
       Exempting the religious practice from regulation eliminates that discouragement, and it rarely encourages the exempted practice. Nonbelievers will not suddenly start observing the Sabbath, or traveling by horse-and-buggy, or holding their  children out of high school just because observant Jews or Adventists or Amish are permitted to do so.
       Formal and substantive neutrality both suggest equal treatment of religious and secular schools with respect to financial aid, because money has the same value for everyone. But most exemptions of religious practices have value only for believers in some particular faith. So even though an exemption is a form of religious category, religious exemptions create neutral religious incentives.

Vatican office temporarily suspends sanctions against Indiana Jesuit school

The Vatican’s Congregation for Catholic Education has temporarily suspended a decree from the Archbishop of Indianapolis that revoked the Catholic identity of a Jesuit high school. The suspension will have effect while the congregation considers an appeal of the decree.

Full article at Catholic News Agency

"Labour Commits to Abolishing Private Schools"

Here is news about an (I think) striking proposal in the United Kingdom:  

"[T]he motion passed by Labour . . . said the next Labour manifesto should include a 'commitment to integrate all private schools into the state sector'. That would see the 'withdrawal of charitable status and all other public subsidies and tax privileges, including business rate exemption', the motion said.  It also demanded that universities only admit 7% of students from private schools, to reflect the proportion of all pupils who attend them. The motion also called for 'endowments, investments and properties held by private schools to be redistributed democratically and fairly across the country’s educational institutions'.

The primary target of this proposal seems not so much to be religious and parochial schools (in the U.K., the state sector includes a variety of "faith schools"), but rather elite institutions like Eton, etc.  That said, calls to "abolish Catholic schools" are regular and recurring.

"First Amendment Traditionalism"

That's this new paper, which I've just posted, and accompanies this earlier paper discussing the nature of traditionalist interpretation. Here's the abstract of the newer piece (comments welcome):

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This essay probes traditionalism’s conceptual and normative foundations. It focuses on the Supreme Court’s traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the essay identifies and describes traditionalism in some of the Court’s Speech and Religion Clause jurisprudence, highlighting its salience in the Court’s recent Establishment Clause doctrine.

Part II develops two justifications for traditionalism: “interpretive” and “democratic-populist.” The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed them practices with political legitimacy. Courts owe the people’s enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.

In Part III, this essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism’s reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant “expected applications.” It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about “expected applications,” but in making decisions about retrospective applications—drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the essay investigates the connection between so-called “original law” theories of originalism and traditionalism. Original law theorists argue that originalism is “our law” as a sociological and cultural fact. But traditionalism may be more “our law” than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this essay takes no position), then it may support traditionalism as much as originalism.

Are Religious Californians Really Harming the Mental Health of People Who Identify as LGBTQ?

California politicians are telling people of many religions that their faith is unacceptable to the state. These legislators are pushing anti-religious, LGBTQ-affirming practices in education (AB-493), and in pastoral counseling and psychotherapy (ACR-99).

What is their justification? A declaration in California’s Assembly Concurrent Resolution 99 (ACR-99) claims that “groups in society, including therapists and religious groups,” create stigma and have “caused disproportionately high rates of suicide, attempted suicide, depression, rejection, and isolation” in sexual and gender minorities. These politicians claim that LGBTQ-affirming beliefs will lead to better mental health outcomes.

The presumption of blame on religious groups and therapists stigmatizes people of many faiths. More importantly, the research does not support this claim.

Full article at Public Discourse