[Update: Some analysis of the ministerial exemption case can be found here (linking Dorf) and here. Thus, avoiding mystical Kennedyesque language is possible, though the end result isn't much different. The second link actually isn't that helpful but it is a bit curiously bland coming from Marci Hamilton, a strong opponent to giving special exemptions to religious groups. An atypical conservative on that point. A liberal separatist suggests the ruling is harder with the current double standard in place here. Yes. If religions are treated differently by the First Amendment, it does work both ways, doesn't it? ]
The Supreme Court handed down some opinions this week, favoring 8-1 counts, though a few justices concurred here and there for whatever reason. The opinions in various cases are carefully drafted to decide things narrowly enough to get such unanimity.
For instance, with only Sotomayor dissenting, Justice Ginsburg wrote an opinion rejecting an attempt to open up more judicial determination on the accuracy of eyewitness testimony. The majority said that this only should occur as a matter of federal due process of law -- though trial judges and state courts will have discretion in various situations -- when the police create "suggestive circumstances." CJ Roberts, with only Thomas dissented, summarily schooled New Orleans prosecutors, perhaps partially to make up with last term's 5-4 affair going the other way. Breyer led the way in another case to avoid a federal suit when alternative state means are present to deal with alleged problems in a privately run prison, Ginsburg this time dissenting alone.
CJ Roberts also led the way in a narrowly drawn unanimous ruling (Alito/Kagan and Thomas concurring to expand things somewhat) on the ministerial exception. The opinion said that a case involving religious use of peyote didn't mean generally applicable rules should be equally applied to religious conduct in all cases because such "outward physical acts" are not the same thing as “internal church decision that affects the faith and mission of the church itself.” The inability to practice your religion at all would seem to be a threat to said mission too. The First Amendment protects free exercise, not only religious institutions themselves. Nonetheless, special concern appears to be given to religious associations in particular as compared to individual religious practice; as Alito noted in his concurrence (shades of Griswold?):
On the other hand, like Sotomayor notes in her eyewitness dissent, perhaps some clarity must be sacrificed for such judicial togetherness.
The Supreme Court handed down some opinions this week, favoring 8-1 counts, though a few justices concurred here and there for whatever reason. The opinions in various cases are carefully drafted to decide things narrowly enough to get such unanimity.
For instance, with only Sotomayor dissenting, Justice Ginsburg wrote an opinion rejecting an attempt to open up more judicial determination on the accuracy of eyewitness testimony. The majority said that this only should occur as a matter of federal due process of law -- though trial judges and state courts will have discretion in various situations -- when the police create "suggestive circumstances." CJ Roberts, with only Thomas dissented, summarily schooled New Orleans prosecutors, perhaps partially to make up with last term's 5-4 affair going the other way. Breyer led the way in another case to avoid a federal suit when alternative state means are present to deal with alleged problems in a privately run prison, Ginsburg this time dissenting alone.
CJ Roberts also led the way in a narrowly drawn unanimous ruling (Alito/Kagan and Thomas concurring to expand things somewhat) on the ministerial exception. The opinion said that a case involving religious use of peyote didn't mean generally applicable rules should be equally applied to religious conduct in all cases because such "outward physical acts" are not the same thing as “internal church decision that affects the faith and mission of the church itself.” The inability to practice your religion at all would seem to be a threat to said mission too. The First Amendment protects free exercise, not only religious institutions themselves. Nonetheless, special concern appears to be given to religious associations in particular as compared to individual religious practice; as Alito noted in his concurrence (shades of Griswold?):
Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have “act[ed] as critical buffers between the individual and the power of the State.”The opinion cited various concerns raised by the government, whose position it deemed unreasonable, such as inability to freely notify the government in cases of child abuse (might this be a violation of internal church decisions?) but in effect avoided them:
The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.Why the opening paean to religious institutional independence would be any different in such cases was not explained. This after all is the hard part when dealing with religious exemptions -- drawing lines that balance different interests. For instance, when reporting alleged abuse to children, is that sort of like the "outward physical acts" business, here a way to protect third parties? Not clear. Perhaps, the opinion is helpful to deal with a specific concern, leaving the way for others to deal with more.
On the other hand, like Sotomayor notes in her eyewitness dissent, perhaps some clarity must be sacrificed for such judicial togetherness.