This post marks the launch of the blog's newest and most exciting feature: the online journal. We will post an article each week in the online journal section. Click here to read the article in full.
Just as we do not know what a statute means until a court interprets it, we do not know what an opinion "means" until a court returns to it. Professor Mark Strasser captures this uncertainty in his essay on the Supreme Court's recent opinion on religious liberty and employee rights, Hosanna-Tabor v. EEOC.
Courts and commentators have divided over what role judicial review should play in religious activity. Some say that civil courts are incompetent to review religious activity as a matter of constitutional design. Others say that civil courts may, in certain circumstances, review and adjudicate church affairs.
Professor Strasser's essay addresses these important questions of political theory, constitutional interpretation, and religious freedom in his reflections on the Hosanna-Tabor case. He argues that Hosanna-Tabor does not imply that courts are incompetent to review religious activity. Why? Because the Hosanna-Tabor Court described the ministerial exception as an affirmative defense rather than as a jurisdictional bar. This means that religious groups may or may not raise the defense, depending on their litigation strategy. This also means that if the defense is not raised, a civil court can review the case.
Professor Strasser acknowledges the complexities and cross-trends in the Court's jurisprudence prior to this decision, making this issue uncertain. He can say conclusively, however, that Hosanna-Tabor does not reflect a logic of institutional incompetence.
Just as we do not know what a statute means until a court interprets it, we do not know what an opinion "means" until a court returns to it. Professor Mark Strasser captures this uncertainty in his essay on the Supreme Court's recent opinion on religious liberty and employee rights, Hosanna-Tabor v. EEOC.
Courts and commentators have divided over what role judicial review should play in religious activity. Some say that civil courts are incompetent to review religious activity as a matter of constitutional design. Others say that civil courts may, in certain circumstances, review and adjudicate church affairs.
Professor Strasser's essay addresses these important questions of political theory, constitutional interpretation, and religious freedom in his reflections on the Hosanna-Tabor case. He argues that Hosanna-Tabor does not imply that courts are incompetent to review religious activity. Why? Because the Hosanna-Tabor Court described the ministerial exception as an affirmative defense rather than as a jurisdictional bar. This means that religious groups may or may not raise the defense, depending on their litigation strategy. This also means that if the defense is not raised, a civil court can review the case.
Professor Strasser acknowledges the complexities and cross-trends in the Court's jurisprudence prior to this decision, making this issue uncertain. He can say conclusively, however, that Hosanna-Tabor does not reflect a logic of institutional incompetence.
No comments:
Post a Comment