January 24, 2012

POS 282--Introduction to American Law
In class today, Tuesday 1/24, we went over the four different opinions in the Supreme Court Brown v. EMA case. We examined the differences in the questions asked, as well as in the answers given. The assignment for Thursday 1/26 is to read in the text pp. 22-32. Then write up a case brief of the Glucksberg case, using exactly the format from the template and sample brief that I had previously distributed. This case brief will not be collected or graded, but it is a practice brief before a graded one is assigned.

POS 359--The Current Supreme Court Term
In class today, Tuesday 1/24, I distributed one handout, Assignment#1, which is copied below. We went over the assignment, and then finished our outline of The Hosanna-Tabor opinions. We also discussed the apparent untruths told by the Church officials to the congregation, and the various reasons offered by the church as to why Perich was fired.

Assignment #1

For this assignment, I would like you to write a paper about the Hosanna-Tabor decision. In addition to having read the Supreme Court Opinions, I would like you to read the Brief for the Federal Respondent (just to get an idea of what the loser’s argument was). You can access that brief by going to www.supremecourt.gov, selecting “Merits Briefs”/ “On-Line Merits Briefs” (which sends you to the ABA site), scrolling down alphabetically to Hosanna-Tabor, and the selecting “Brief for the Federal Respondents”.

Here are the specific questions I would like you to address:

1) Hiring v. Retaliation
When Congress wrote the ADA, they carefully supplied a religious exemption for hiring decisions, and carefully did not supply a religious exemption for retaliatory firings. In creating a ministerial exception for retaliatory suits, the Court says that this Congressional plan violates the Religious Clauses of the First Amendment. In your opinion, is the Court correct? Even if the government can’t tell a Church that an otherwise qualified blind man should be eligible to be hired as a priest of the Church, isn’t it a different thing to say that a man who is already a priest and then goes blind can be retaliated against when that priest asks for a reasonable accommodation under the ADA? Why is (or isn’t) that a violation of the Free Exercise and Establishment clauses?


2) “Religious Organizations”
The Court Opinion grants broad First Amendment immunity to “religious organizations” from having to comply with otherwise applicable laws against discrimination. Lots of groups would like to be exempt from having to comply with laws. For example, the Church of Solomon Goldman calls itself a “religious organization” organized to carry out the vital faith-based mission of the Church (lifting the consciousness of humanity to the virtues of supporting financially a cause bigger than themselves—i.e., giving money to support the work of the Church—which is to raise money; allowing people to experience the joy of discovering how much more blessed it is to give, than to receive.) So, since the Church of Solomon Goldman calls itself a “religious organization”, do the Religious Clauses of the First Amendment mean that the government has to take the Church’s self-description at face value? If I say I’m a religious organization, with all the rights and privileges thereto appertaining, (I think my law school degree used that phrase) does that make me one? If so, doesn’t that open the door to charlatans who want to evade our discrimination laws? (not me, of course, but those other guys.) If not, doesn’t that mean that government would be looking into the bona fides of my religion, and doesn’t the First Amendment forbid government from deciding what a true religion is, and therefore, what a “religion” is? Would it make a difference if the Church of Solomon Goldman said that it is our “God-given” mission to lift the consciousness of humanity? Answer both what you think that the Court’s Opinion means for this question, and what you think that the answer should be (as if you were the Supreme Court; if I can be the Church, why shouldn’t you be the Court?).





3) “Ministers”
Roberts doesn’t exactly define who is a “minister” (and who therefore has forfeited the protection of the anti-discrimination laws) but he lists the factors that make Cheryl Perich a loser. The concurring Opinions both have their own views on this subject. In the Church of Solomon Goldman, all the workers are called “ministers”. They all are granted that title by the head of the Church (me), and they have to accept the title. They even get a name tag with the label “Minister”. They are educated in the doctrine of the Church, and have to prove to the head of the Church that they know what the Church is all about and how to convey the message of the Church to all of those needy souls who haven’t discovered the beauty of giving their money away to a cause bigger than themselves. Assuming that the Church of Solomon Goldman is a covered “religious organization”, are all of the workers “ministers” (who have no protection against anti-discrimination laws)? Answer under all three Court Opinions, and also again give your own view.

4) Pretext
In the Church of Solomon Goldman, one of the beliefs of the Church is that the word of the leader is infallible, and never to be questioned. So, if any of the ministers question me, they are automatically fired. In fact, if there’s anything at all that I don’t like about the ministers, they’re fired. If they threaten to report my hiring of illegal aliens, or of little children, or the fact that ministers have to work eighty hours for the Church each week, I fire them, explaining only that they’ve challenged the doctrine of infallibility. So my explanation for the firing is really something of a pretext. Under the ministerial exception is it just fine for me to put forth clearly pretextual reasons for retaliating against ministers? Again, answer both what the Court Opinions say on this subject, and your view about the correct answer.

I’m not looking for an introduction to the case, or a summary of it—all of that is assumed. Just launch right into the questions.

The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation. You need to cite at least two times each to both the Court Opinion and the Federal Brief.

Your papers will not be graded on which view of the issues you take, but rather on how well you support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.

The paper should be a minimum of 3 pages long, and no more than 5 pages (double spaced). Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday, February 2. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. If you do not have the paper done on time, be in touch with me right away.

The work should be entirely your own. See the syllabus regarding plagiarism.