Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

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3 Responses

  1. Marc DeGirolami says:

    Well, I think your correction of Asst. SG Kruger’s statements at oral argument at least would make sense of the government’s position, as well as render it consistent with its position in its brief. As for the last statement about whether deciding who is a minister is “much more theological” than determining whether a firing is pretextual, I’m afraid I don’t understand your view. I can certainly understand that the government would have a strong interest in vindicating its civic norms and puncturing a pretextual claim. And I even agree that the government’s interests are not diminished simply because we are dealing with a religious institution. But in my view, they are complicated by the fact that the entity on the other side of the v. is a religious institution, and exactly because deciding whether the pretext is a sham or not will require the court to inquire after the nature and quality of the religious institution’s commitment to the asserted (and, for the plaintiff, allegedly pretextual) reason. That may well demand considerable entanglement on the part of the government in theological questions. Whatever may be said of that inquiry and the difficulty of making it, it seems to me to be a legitimate concern, and certainly not a sham.

  2. Rick Garnett says:

    No one thinks, it seems to me, that as a general matter the fact that the government has an “interest” in vindicating a particular norm or value means that it can do all things that, in the government’s view, tend to vindicate that norm or value. There are, in some cases, competing values that weigh against a particular vindication effort and, in some other cases, there are some particular vindication efforts that lie outside the power of constitutional, limited governments (like ours). The notion that Ms. Kruger should have said “yes” — that is, that a secular government could take on the task of deciding whether the reasons why, say, a Catholic bishop removed a Catholic priest from a particular pastoral assignment were “pretextual” — is striking. Let’s assume it was. What then? Do you really think, Leslie, that the government could require the Bishop to give the priest his initial assignment back, or pay the priest money-damages?

  3. Joe says:

    Prof. Garnett, let’s say the reason the bishop removed the priest was because he reported a fellow priest who repeatedly stole from his petitioners? The church, bearing false witness (that is what “pretextual” amounts to), claimed it was based on church principles that the matter should be dealt with in-house. In fact, it was to avoid civil damages that would occur if the matter was known publicly.

    What if the priest or minister reported abuse concerning a third party? If in the process, s/he lost a job (needed to care for his or her family), based on fraudulent grounds or even honest ones that put the needs of the church as a whole over the individual petitioner (based on honest faith grounds), would it be “striking” that in some cases the church should be required to at least provide back pay?

    Or, should someone lose the money needed to care for their family because they reported to civil authorities that a church refused to be honest about what they were doing (pretext) or were honest and in the process threatened the well being of a third party (or in certain cases, the specific person involved)? Where is the line?

    After all, the fact someone has a right, even a natural right, doesn’t mean it is absolute.