Document Type
Symposium
Abstract
(Excerpt)
First of all, thank you very much, Professor Movsesian, the Mattone Center, and St. John’s for inviting me here to speak today on what I believe is a very important issue. I will also say that I share Chris’s opinion that it’s great to work with him. He actually wrote a very compelling brief in our case at the Supreme Court called Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC back in 2012. That was the only brief mentioned by Justice Breyer during the argument, and it was also the only one cited in the Court’s unanimous decision. So, it’s a high-impact amicus brief, for which I remain grateful. The ministerial exception is one of the areas he referenced where I believe we generally agree. While we do not see eye-to-eye on this one, I will try to be completely civil as I explain why I am right and Chris is wrong.
The other disclaimer I should mention is that I am one of the attorneys representing Louisiana in the Roake case, so there are some limits to what I can discuss.
So, how do we begin to untangle these legal questions involved in Roake? One way to view the Roake case is as a question of justiciability, meaning standing, ripeness, mootness, and similar grounds. Another way is as a matter of Establishment Clause jurisprudence on the merits. In both areas, the Supreme Court over the past couple of decades has shifted the law away from abstract principles that have long complicated these areas and toward more concrete analyses grounded in specific factual situations and historical context. This is what the Court has emphasized for many years: examining historical practices and understandings. I believe both of these trends are positive, and both are relevant in the Roake case.
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