My colleague Nelson Tebbe has a brilliant article forthcoming in the Harvard Law Review. I suspect we agree on most Establishment Clause issues. We tend to disagree on free exercise issues. One area we agree on is the ministerial exception. I think that the Catholic Church should be able to confine the priesthood to males - even though I think the restriction is appalling. But suppose the Unitarian Church in downtown Ithaca discriminated against females. Although the Unitarian church has few binding doctrines, it is certainly no part of the Unitarian faith to discriminate against females; yet the ministerial exemption would allow them to do so - perhaps to avoid a governmental determination of the content of a religion or a broad conception of autonomy. Neither Nelson, nor I would extend the exception this far.
Similarly, I would rarely compel an individual to violate his or her conscience (Nelson less so), but I would give less constitutional weight to impinging on religious practices not required by conscience. I am not sure where Nelson stands on this, but it has the same worry about government establishing what a religion stands for. I would accept that cost. Consider religious fraud. The Supreme Court has ruled that an individual can be prosecuted for mail fraud when he claimed that he shook hands with Christ in St. Louis. The Court evaded the Establishment Clause issue by saying that the ruling was about intent, not about the truth of the religion. Yet no jury could fail to consider intent given the improbability of the Christ meeting with the defendant.
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