Today in the Community, we discuss the Stolen Valor Act, 18 U.S.C. § 704, a statute that makes it a federal crime to falsely claim to have won military honors. The Stolen Valor Act became famous in 2010 when two federal courts – the U.S. District Court for the District of Colorado, and the U.S. Court of Appeals for the Ninth Circuit – held that it violates the First Amendment’s protections on free speech.  The statute draws into relief one of the toughest issues in free speech law: Whether and to what extent the First Amendment protects knowingly false statements of fact.

After the Ninth Circuit denied rehearing en banc in United States v. Alvarez, the United States filed a petition for certiorari, which the Justices will consider at their Conference tomorrow. In today’s Community discussion, we invite you to talk about the issues in the case, as well as how the Court should address it.

Here are five of our favorite comments from yesterday’s discussion, which involved the October 5 oral argument in the ministerial exception case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC:

Marci Hamilton

It was remarkable that neither side nor the Justices acknowledged a highly relevant staple in free exercise cases — the courts must often inquire into the sincerity of the religious litigant. Courts appropriately look into the factual question whether the claimed religious reason for conduct is sincere. For example, the prison administrator who challenges the prisoner who demands kosher food, but whose religious affiliation to that point is Baptist. Pretext analysis is little different. The question is whether the asserted religious reason for the otherwise discriminatory employment decision is sincerely religious or a pretext for discrimination. To fail to inquire into pretext or sincerity is to hand religious organizations and believers an immunity that violates the Establishment Clause, because it is a benefit based on status rather than sincere belief. It is also a deterrent to obeying the law. Religious organizations that have believed themselves to be above and beyond the law have committed grave crimes against children and vulnerable adults. Religious organizations that are given absolute immunity from anti-discrimination laws will violate those laws even when their beliefs do not require it. That is simply a fact, and makes this issue a matter of civil rights on both sides of the equation. The middle ground proposed by Justice Breyer and others at the argument is the most sensible balance of interests.

Kevin Baine

The fundamental question in this case is whether those who seek to serve a church in a religious capacity may invoke the power of the state in support of their desire to serve—or whether the church has the right to choose those who perform religious functions without regard to secular standards and without interference by the state. I think the Religion Clauses answer that question. If the notion of separation of church and state means anything, it means that there is a zone of church affairs that the state is powerless to regulate, and I think that zone has to include the right of a church to select its ministers. The state should no more be able to set the criteria for church office than the church should be able to set the criteria for state office.

Stuart Lark

In oral arguments, Professor Laycock stated that for purposes of applying the ministerial exception, the term “minister” is ultimately a legal term and not a theological one. Given that the term as used in this context determines legal rights, it seems that Professor Laycock must be right on this point. The legal definition of “minister” in this context should turn upon the underlying purpose of the ministerial exception. Assuming such purpose is to prevent courts from interfering in the selection by religious organizations of their religious or ministry leaders, then the definition of “minister” is a religious or ministry leader in a religious organization.

In applying this definition, courts can neither favor some forms of ministry leadership or “ministers” over others nor interpret or apply the religious tenets of an employer. These constitutional principles require courts to defer to bona fide representations of religious organizations regarding who is a minister or who exercises important religious leadership in an organization. As part of this assessment, the fact that the organization has conferred a ministry leadership title on the position (or the individual holding the position) may create a presumption that the position is a bona fide leadership position. In this regard, courts should as an initial matter defer to each religious employer’s theological understanding of a “minister,” assuming that in the vast majority of cases such theological understanding aligns with a role of leadership within the organization.

However, given the broad spectrum of theological views on the qualifications and roles of a “minister,” sole reliance upon each organization’s bona fide theological understanding of a “minister” would be both over inclusive and under inclusive with respect to the purpose of the ministerial exception. Some religions view every member as a “minister” and reject any special titles, whereas others confer “minister” status on only a very few. Therefore, the presumption can be defeated by evidence either that the “minister” status does not involve any significant leadership role or that the status is a sham.

These same principles of deference and neutrality also prohibit courts from limiting minister status to those positions determined by the court to be sufficiently religious. Government officials and courts have neither the competence nor the authority to distinguish between “ministerial” and other positions based on the religious character of their duties (i.e., whether such positions are sufficiently religious to be “ministerial”), and doing so results in religious entanglement and favoritism. A court may evaluate the duties of the position to determine whether the organization has made false or materially inconsistent representations regarding the religious leadership nature of the position. But to the extent the religious character of duties are relevant, such character must be based on the organization’s purpose for the duties and not on the court’s subjective measure of religiosity

Thomas C. Berg

The answer has to be no, as the lawyers for both the EEOC and the plaintiff conceded in the Hosanna-Tabor oral argument. Judges could not, through an injunction or damages, tell the church to accept priests who contravened its belief that the priesthood must be male. But neither lawyer could explain why the result should be different in this case, where the court was asked to tell a Lutheran congregation to accept a minister who contravened (or threatened to contravene) a different religious belief: that ministers should not take cases against their church to court, a belief stemming from a passage of Paul’s in 1 Corinthians. Assume for the moment that Ms. Perich, a “commissioned” teacher, is a minister (a question for another thread). If the court must defer to the Catholic belief that priests must be male, how can it not defer to the Lutheran belief that ministers must not sue the church?

The government claimed that the “balance of private and public interests” differs in the two cases. But as several justices observed, on the “private interest” side this amounts to claiming that the doctrine on dispute resolution is not as central to Lutheranism as the doctrine on male priests is to Catholicism. That is a theological judgment, and the government conceded that the Religion Clauses bar a court from making it. On the “public interest” side, the government claimed it has an especially strong interest in ensuring access to court by preventing employers from retaliating when employees threaten suit. But as Justice Breyer asked, why is the interest in preventing retaliation stronger than the interest in preventing discrimination itself, as in the male-priesthood case? The right to sue exists to protect the right against discrimination; it cannot be more important than the right it’s designed to protect.

The government claimed that courts should strike these balances under the First Amendment doctrine of expressive association, which allows both religious and nonreligious organizations to dismiss an employee whose conduct conflicts so sharply with the organization’s beliefs that it undermines the organization’s ability to communicate its message. But calling the issue “expressive association” rather than religious freedom does not make it any more acceptable for courts to second-guess the theological importance of the dispute-resolution doctrine for Lutherans, compared with the male-priesthood doctrine for Catholics.

More fundamentally, several justices were rightly incredulous at the government’s argument that this is simply an expressive association case-that the two Religion Clauses set no special rules for the relationship between a religious organization and the employees who perform its religious functions. Justice Kagan called the argument “amazing”; Justice Scalia, “extraordinary.” The Court should recognize the obvious: there are ways in which religious organizations are constitutionally different. Moreover, the differences are not exhausted by the rule that courts cannot make theological determinations (although that rule is relevant here too). Forcing the Catholic Church to accept women priests might require no such determinations-simply a ruling overriding the Church’s clear tenet. Yet everyone conceded it would be unconstitutional. At bottom, then, religious organizations have a distinct constitutional freedom to be able to determine who is qualified to serve as a minister. We have to decide the precise contours of that category of freedom, and who counts as a minister, but the freedom is there, as every circuit has held.

Barak Richman

The problem with the Establishment Clause is it invites an endless syllogism. Certainly the government can’t dictate or change a religion’s core beliefs, but is there no limit to what religious leaders can say constitute those core beliefs? Can they define—and can the government not question their definition of—who qualifies as ministers? What constitutes prayer? What constitutes religious teaching? Whom is religiously subject to whom?

There needs to be an outer limit to what the Establishment Clause protects — the Court cannot permit a religion’s leaders to characterize anything and everything as a question of religious doctrine, and thus beyond the reach of Congress’ regulatory powers. To be sure, a religious institution’s mission is multi-faceted, and any line-drawing test necessarily involves some arbitrariness. But avoiding the messy decisions and giving the Establishment Clause full-reign would give carte blanche to religious leaders to claim immunity from all generally applicable laws. This, among other consequences, will permit religious leaders to deny free exercise interests to members of their own religion. In deferring to religious authority, the Court will actually sanction economic coercion and other non-religious abuses of power that generally applicable laws are designed to prevent.

Posted in Community

Recommended Citation: Tejinder Singh, Today in the Community, SCOTUSblog (Oct. 13, 2011, 9:42 AM),