Short Circuit: A Roundup of Recent Federal Court Decisions

Citations to nowhere, satanic cardigans, and untested rape kits.

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, by a 7–2 margin, the Supreme Court struck down a Tennessee law that prohibited newcomers (like IJ clients Doug and Mary Ketchum) from obtaining a retail liquor license until they'd resided in the state for two years. Moreover, the law also barred newcomers from renewing their license (which must be done annually) until they'd resided in the state for 10 years. Yup, you could get a license after two years, but then it would lapse for seven years. Lame! The law served only to protect existing liquor stores from competition, and indeed a private association of liquor retailers, rather than the state AG, defended the law at the high court. Click here to read more.

  • 42 U.S.C. § 7545(a)(2) would be a run-of-the-mill subsection of the Energy Independence and Security Act of 2007. Except that it doesn't exist. Which is a problem because Congress mandates that the EPA periodically review the Act's mandates, including the requirements of the nonexistent section (a)(2). EPA (2017): Our legal opinion is we should just ignore that section. D.C. Circuit: We don't have jurisdiction to review that mere legal opinion.
  • As winged pigs passed overhead, Satan pulled on a cardigan, grabbed a mug of hot cocoa, and settled in to read this First Circuit opinion, in which a prosecutor is denied absolute immunity for withholding exculpatory evidence.
  • Plaistow, N.H. man misses mortgage payment; following a loan servicing rep's advice, he mails in a check. Alas, the company returns his checks, says it'll foreclose. He calls the loan rep back, who instructs him to send a cashier's check. He does so, but the company forecloses anyway. Can he sue Fannie Mae, who appointed the loan servicing company, for service so bad it was tortious? First Circuit: It's pellucid that Fannie Mae (a sorta gov't instrumentality) cannot be liable for the unauthorized misdeeds of its agents, so his case is defenestrated.
  • Does the label "Diet Coke" (and the use of fit models in advertising) mislead consumers (in violation of New York law) into thinking the drink will assist in weight loss or at least not cause weight gain? The Second Circuit says no (and same deal with the same attorneys' recent claims against Pepsi and Dr. Pepper). "Diet" means contains fewer calories than non-diet, and Diet Coke doesn't have any calories.
  • In a brief order Tuesday, the Fourth Circuit remanded a case about the inclusion of a citizenship question on the 2020 census back to district court in Maryland. The district court case will go forward because of newly discovered evidence about whether the citizenship question was unconstitutionally intended to shift political power to white voters. (On Thursday, the U.S. Supreme Court reached a compromise holding in a parallel case: Although the government has the authority to ask the question, it needs to better explain its decision to do so. The Maryland case should be able to continue after the Supreme Court's ruling.)
  • Allegation: Memphis police don't take the investigation of sex assaults as seriously as other violent crimes. Over several decades, police declined to test over 15,000 rape kits, resulting in spoliation. Sixth Circuit (over a dissent): The city unreasonably delayed discovery and didn't produce evidence that could allow plaintiffs to succeed on their equal protection claim. The case should not have been dismissed.
  • Polk County, Wisc. corrections officer sexually assaults two female inmates over three years. (He's sentenced to 30 years.) Jury: For which the county is liable. Pay each woman $2 mil. Seventh Circuit: Reversed. The officer went to some lengths to conceal his misconduct; no reasonable jury could believe corrections officials were deliberately indifferent to the risk of such assaults. Dissent: Officials didn't punish prior sexually predatory behavior by a different officer; the jury's verdict's is not so unreasonable.
  • Despite taking 12 depositions, making 294 document requests, and filing three motions to compel, Illinois attorney has literally no admissible evidence with which to defend against summary judgment. Yet defend he does. Without complying with the local rules. With papers the district court deems "laden with disingenuous and misleading statements." Seventh Circuit: $66k in sanctions is OK with us.
  • Police suspect man sitting in his car is watching kids in Monmouth, Ill. park and masturbating. A search of the car yields contraband. They get a search warrant for his phone, laptop, and camera, which yields child porn. State court: Suppress all the evidence. Officers lacked sufficient justification for ordering him out of the car, among other things. But wait! Three weeks later, the feds seek search warrant based on info from the state's searches. The man is convicted, gets an 11-year sentence. Seventh Circuit: Conviction affirmed. There's no evidence the feds knew the state's evidence had been suppressed.
  • Des Moines, Iowa man films music video with alleged gang members in which a gun is toted, touted. The video is posted on Facebook. Other photos on the man's Facebook page appear to show him posing with guns and smoking pot. Probable cause to get a warrant for more info from Facebook? Eighth Circuit: Yes, indeed. His conviction for possessing a firearm while being an unlawful user of a controlled substance stands.
  • Atlanta officers have search, arrest warrants for nightclub, but it's closed when they show up, so they decide to "attack" other commercial properties nearby. Without knocking, they enter what turns out to be a private motorcycle clubhouse (Dirty South Slab Riders) at 4 a.m. and arrest its owner for failing to produce business and alcohol licenses. Georgia court: He didn't need those licenses. District court: He can sue the officers. Eleventh Circuit: Reversed. The officers could have reasonably believed he did need the licenses. The owner's claims against the city can still go though.
  • The Colorado Supreme Court has good news and bad news for corporations in the Centennial State. The good news is that corporations are entitled to the Eighth Amendment's protection against excessive fines. The bad news is that, for fines that accrue daily, excessiveness is based on the amount of the daily fine and not the total amount of fines. Which is unfortunate for a motel owner who learned, after seven years, that he had racked up 1,698 daily fines totaling over $841k for letting his worker's comp insurance lapse.
  • And in en banc news: Fifth grade teacher at Catholic school needs time off to undergo surgery, chemo for breast cancer. She's fired. A violation of the Americans With Disabilities Act? District court: No need to answer that. The First Amendment's ministerial exception excepts the school from the ADA. Ninth Circuit (2018): She's not a minister. The case should not have been dismissed. Judge Nelson (2019, joined by eight others), dissenting from denial of en banc review: The panel decision exhibits "the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid."
  • And in cert grant news: IJ is going back to the Big Show next term. In 2015, Montana legislators enacted a tax-credit scholarship program that enables low-income families to send their kids to private schools. (Individuals and businesses who donate to private scholarship organizations are eligible for a $150 tax credit. The scholarship organizations then give the donations to families.) But last year, relying on the state's "Blaine Amendment" (a relic of 19th-century anti-Catholic bigotry (that 36 other states also still have in their constitutions)), the Montana Supreme Court invalidated the program because it allows families to send their kids to religious schools. Today, the U.S. Supreme Court agreed to consider whether that violates the Establishment Clause, the Free Exercise Clause, or the Equal Protection Clause. Read more here. And check out the cert petition here.

IJ is excited to announce a new opportunity to join the team as a Law and Liberty Fellow at our headquarters in Arlington, Virginia. If you are a rising 3L or recent law graduate and you are interested in a career in litigation and public interest law, this Fellowship is your opportunity to join IJ's litigation team! IJ is accepting applications through July 15 and will notify all applicants of decisions by the end of August for two-year Fellowships beginning in August 2020. To learn more and apply, click here!

NEXT: Can Federal Partisan Gerrymandering Claims be Brought in State Court?

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  1. Did the plaintiffs in the ridiculous Diet Coke case have to fork over any cash?

    I sure hope so.

    I’m also curious as to which doctrine of the Catholic Church requires it to fire an employee with cancer. WWJD?

    1. “Eleventh Circuit: Reversed. The officers could have reasonably believed he did need the licenses“

      Officers could reasonably believe the earth is flat too. Doesn’t mean we excuse their ignorance.

      If cops are going to demand a business license they damn sure better know the rules. Otherwise what’s reasonable about those officer’s decisions?

    2. Jesus had a clear and consistent record dealing with the sick and disabled.

      1. Also the power to deal with them and their conditions… well, at least the ones whose suffering was caused by being possessed by devils.

      2. Like when he stopped raising people from the dead after lazarus?

    3. “I’m also curious as to which doctrine of the Catholic Church requires it to fire an employee with cancer. WWJD?”

      I’m more worried about who the Church *doesn’t* fire than whom it fires.

      1. Good point.

      2. That the teacher’s contract was not renewed because she has cancer is her ALLEGATION, one I imagine the school would contest at trial. The district court granted summary judgment to the school on the basis of the “ministerial exception” . When an appellate court reviews that summary judgment, it presumes the allegations to be true. The actual case has not been tried.

    4. It does not matter what WWJD, because Jesus did not give the Church His Powers.

      this is why it is fallacious to debate WWJD when discussing health care policy. Jesus did not need hospitals or drugs to heal anyone; He used Divine Power. If everyone had His Divine Power, health care would be much cheaper. Since Jesus refuses to give us His Divine Power, WWJD is beside the point.

    5. “WWJD?”

      Cure her?

  2. WWJD? I don’t know, but not fire the woman.

    From the case: “..the Archdiocese…hired Biel in March 2013 as a long-term substitute teacher. At the end of that school year, St. James’s principal hired Biel as the school’s full-time fifth grade teacher. …In November 2013, Biel received a positive teaching evaluation from St. James’s principal. Less than six months after that evaluation—which was her first and only formal evaluation at St. James—Biel learned that she had breast cancer and informed the school administration that her condition required her to take time off to undergo surgery and chemotherapy. Sister Mary Margaret [the principal] told Biel a few weeks later that she would not renew Biel’s contract for the next academic year…”

    In short, the Nun/principal ditched her when the ink was still wet on the contract to protect the finances of the school. Here I see Jerry Pournelle’s Iron Law of Bureaucracy in action. The nun wasn’t interested in saving souls, the mission of the Catholic church.

    The iron law states that in any bureaucratic organization there are two kinds of people: Those devoted to the goals of the organization, and those dedicated to the organization itself. “The Iron Law states that in every case the second group will gain and keep control of the organization. It will write the rules, and control promotions within the organization.”

    1. Well Sr Mary Margret had an incentive here, it cut into her Vegas money. Do a search for Mary Margaret Kreuper st james torrance

      http://scallywagandvagabond.com/2018/12/torrance-catholic-school-nuns-steal-500k-gambling/

      1. Wow! Same nun? F*cked up.

        Interestingly, from a theological perspective, Biel shouldn’t be a “minister” as there are no Catholic female deacons. Historically there were only rare few who administered only to other female potential converts at the start of the church, and there have never been any female priests. But it does make sense to call her one from a 21st century legal perspective, especially because if she wasn’t a “minister,” then I’m sure other religious protections wouldn’t apply, like the insurance the school would have to offer would have to have birth control or abortion offered, etc.

        1. I understand a ministerial exemption from employment non-discrimination statutes. But why an ADA exemption? Are people in wheelchairs unable to pray?

          1. In this context, the ADA is an employment non-discrimination statute.

            1. Yes. What I meant was that the exemption should be limited to discrimination on grounds of religion.

              It’s hard to see how religious principles can be offended by hiring a disabled individual for a ministerial job.

              1. “It’s hard to see how religious principles can be offended by hiring a disabled individual for a ministerial job”

                It’s more to do with what accommodations are reasonable. Would they have to build a wheelchair ramp to the pulpit? Have someone with unsteady hands holding babies in the baptismal font? Hire a mute to deliver sermons?

                1. In some religions bodily defects do indeed bar a person from the priesthood. Jewish priests, for example, had to be “intact” (no missing appendages, not castrated), could not be deformed (no dwarves, for example) and could not have certain illnesses, such as running sores. (See Leviticus 21:16sqq.) There were similar limitations on Assyrian and Babylonian priests. Although as far as I know there are no such restrictions on Greek Orthodox priests, in the Byzantine empire, the Emperor was considered a reflection of the divinity and therefore could have no obvious bodily defect. It was therefore a common practice to mutilate a deposed emperor or a contender for the throne whom one did not want to kill as this prevented him from becoming emperor.

                  1. Those rules are direct principles of the religion involved. That’s not the situation here, or in the case of many other sorts of disabilities.

                    In any case, I just looked at the decision, and it turns out that the school does not actually require its teachers to be Catholics, though it apparently prefers that.

                    Sort of makes a mockery of the idea that she was a minister.

                    1. Sure, but I was replying to the suggestion that disability could not be relevant to ministerial capacity in any religion.

                      With regard to the school not requiring teachers to be Catholic, this is an issue addressed in prior cases and held not to be decisive. In this school even non-Catholic teachers did teach Catholic theology classes, surely a “ministerial function”. Furthermore, the courts have construed the ministerial exception very broadly as requiring the courts to avoid even rather tangential involvement in religious matters.

              2. “What I meant was that the exemption should be limited to discrimination on grounds of religion. ”

                The state telling a church who to hire to spread its message [ministers, teachers] or what money to spend on such hires invades religious freedom.

                1. “The state telling a church who to hire to spread its message [ministers, teachers] or what money to spend on such hires invades religious freedom”

                  True. But this isn’t a case of the state telling a church anything. It’s a case of a state telling a school.

                  1. It’s a church-run school.

                    I used to think when reading your posts that you were just a bad lawyer, until you admitted a week or two ago that you weren’t a lawyer.

              3. “Yes. What I meant was that the exemption should be limited to discrimination on grounds of religion.”

                Then you should have said that the first time around, but no, that’s not what you actually said.

              4. It’s hard to see how religious principles can be offended by hiring a disabled individual for a ministerial job.

                That’s because you misunderstand the concept of the ministerial exception. The ministerial exception is not based on the notion that a particular religious doctrine is violated by employing a person in a ministerial role; the ministerial exception is based on the notion that the government telling a religious employer who to hire for a ministerial role is inherently offensive to religious principles.

                Note that if the exception were limited to discrimination on the grounds of religion, then the government could order a Catholic Church to hire a female priest as long as she was Catholic. Even the Obama administration agreed in Hosanna-Tabor that this was impermissible (although it struggled to logically distinguish that scenario from the position it was taking).

        2. I don’t believe the insurance issues had to do with who was receiving them but who was offering.

    2. In a word, “apparatchiks”. See also the wonderful essay “Empire of the Rising Scum”, about how organizations lose their mission when taken over by people whose superpower is getting promoted.

  3. While the teacher’s firing seems pretty crappy, the 9th Circuit’s decision in Biel v. St. James School seems in almost total conflict with the Supreme Court’s decision in Hosanna-Tabor Lutheran Church and School v. EEOC (2012), though it is quite in line with the 9th’s history of hostility to religion, SCOTUS’s clear holding in Hosanna-Tabor was that the “ministerial exception” was very broad, though the 9th read it exceptionally narrowly. Perhaps someone like a janitor would fall outside the exception, but the idea that a teacher in a Catholic school is not a “minister” seems clearly in conflict with that case. If SCOTUS agreed to hear this case, which it might as the 9th is also in conflict with pretty much every other Circuit, I strongly suspect this will certainly be overturned.

    1. I’m sorry, but I see no hostility to religion in this case.

      It’s not as if Biel was fired for espousing some sort of views in conflict with Catholic teaching.

    2. ” the idea that a teacher in a Catholic school is not a ‘minister’ seems clearly in conflict with that case.”

      Is a teacher in a non-Catholic school also a minister? Does it matter if the teacher is Catholic or not? How about the Catholics’ position on whether women can be priests? If the church says that women can’t be priests, can they be ministers?

      1. “…the laity are made to share in the *priestly,* prophetical, and kingly office of Christ; they have therefore, in the Church and in the world, their own assignment in the mission of the whole People of God.” (emphasis added)

        http://www.vatican.va/archive/ccc_css/archive/catechism/p123a9p4.htm

        Now, only a theocrat would exempt every member of a religion from legal requirements simply because they’re classifed by religious doctrine as sharing in priestly functions.

        Perhaps it is necessary to analyze the situation in 1st Amendment terms – even the 9th Circuit admits that this job involves some religious duties.

        1. So a teacher in a Catholic school doesn’t even have to be Catholic to be “ministerial”? Just walking in the door is enough?

          1. “Just walking in the door is enough?”

            Let me see…no, I can’t find any sentence where I said that.

            1. “’Just walking in the door is enough?’”

              You don’t remember writing “even the 9th Circuit admits that this job involves some religious duties.”?

              1. Get better glasses. If not (teach religion), then not (automatic ministerial exemption).

                1. Though I suppose that you wouldn’t be so confident in telling other people what they *really* think unless you possessed a functioning Helm of Telepathy, so I guess I’ll have to defer to your mind-reading expertise.

                  1. On the other hand, if the “helm of telepathy” which the shetchy peddlar sold you seems to resemble a colander, maybe you should consider suing him for fraud.

                  2. “Get better glasses.”

                    The ones good enough so that I can see what people didn’t write?

                    “you wouldn’t be so confident in telling other people what they *really* think”

                    You seem to have me confused with someone else.

                    ” I guess I’ll have to defer to your mind-reading expertise.”

                    Make up your fucking mind. You start by complaining that I didn’t read your mind, instead reacting just to what you wrote, then go off on a tangent where you’re imagining that I did read your mind.

                    1. Just be careful to empty the spaghetti out of the Helm of Telepathy before putting it on your head.

                      Have you done that? OK, now try and read my mind….

                      How many fingers am I holding up? Which finger is it?

                    2. Wait a minute, Pollock, are you saying Nathan Bedford Forrest was a nice guy who was just misunderstood? Why on earth would you say such a thing?

                    3. “How many fingers am I holding up? Which finger is it?”

                      That’s you thumb up your ass.

                    4. Why should I care what someone thinks who sympathizes with Nathan Bedford Forrest?

        2. Perhaps it is necessary to analyze the situation in 1st Amendment terms – even the 9th Circuit admits that this job involves some religious duties.

          The court actually did analyze the issue of whether Biel was minister.

          Hosanna-Tabor involved a former teacher at a Lutheran school, Cheryl Perich, who alleged that the school fired her in violation of the ADA after she was diagnosed with narcolepsy. Id. at 178–79. The Court focused on four major considerations to determine if the ministerial exception applied: (1) whether the employer held the employee out as a minister, (2) whether the employee’s title reflected ministerial substance and training, (3) whether the employee held herself out as a minister, and (4) whether the employee’s job duties included “important religious functions.”

          Biel, by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. …

          Nor did St. James hold Biel out as a minister by suggesting to its community that she had special expertise in Church doctrine, values, or pedagogy

          Also in contrast to Perich, nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers

          Only with respect to the fourth consideration in Hosanna-Tabor do Biel and Perich have anything in common: they both taught religion in the classroom.

          1. Well, if the 9th Circuit was faithfully following the line it received from the Supremes, nobody has the right to complain (except the 9th Circuit if the Supreme Court gave it bad instructions). My previous responses were in reply to the issue of whether to be a minister in the 1st Amendment sense, a member of the RC Church has to be a priest.

      2. The term “ministerial exception” is a term of art. In his concurrence in Hosanna-Tabor, Alito (joined by Kagan) stress not getting hung up on labels, but looking at the employee’s function, and subsequent court decisions have treated it as a functional test (until this decision).

        A teacher in a religious school is most likely a “minister”. I suppose there could be odd situations in which that was not the case, say, for example, kids are sent to an off-campus driver’s ed instructor not affiliated with the church. That instructor could probably sue under an appropriate discrimination statute if his contract weren’t renewed. But the teacher in this case, in fact, taught a daily religion class as part of her duties.

        The Free Exercise and Establishment Clause problems of the government telling a church who it can or cannot hire or fire are apparent. No one, for example, could seriously argue that a Catholic school that fired its theology teacher who converted to Buddhism should be liable for religious discrimination.

        And, again for many of the commenters here who apparently don’t understand, the teacher’s allegation that her contract was not renewed because of her cancer is just that: an allegation. I imagine the school would deny that at a trial.

        This case is an outlier, conflicting with several circuits and state supreme courts. The district court dismissed the case based on the ministerial exception. That was reversed on appeal 2-1. And now 9 judges of the full court dissent from the denial of an en banc hearing. That is an unusual amount of dissenters. If the Supreme Court decides to review this case, I would bet it reverses, especially as the decision in the Hosanna-Tabor case was unanimous.

        1. “the teacher in this case, in fact, taught a daily religion class as part of her duties”

          That makes a difference, unless you buy into the claim that mathematics, say, or physics, teaches the beauty of His creation and is therefore religious in nature.

          1. One reason I believe the Supreme Court would say ALL (excepting very unusual examples) teachers in a religious school are “ministers” is precisely to avoid line-drawing like that. The philosophy teacher can’t sue, but the math teacher can, etc.

            The consensus after Hosanna-Tabor (from both those that agreed and those that disagreed with the decision) was that the Supreme Court has essentially almost completely barred discrimination suits from employees of religious institutions.

            1. “One reason I believe the Supreme Court would say ALL (excepting very unusual examples) teachers in a religious school are “ministers” is precisely to avoid line-drawing like that”

              So then we’re back to the problem I started with. If I teach here, one result, and if I teach there, different result, even if what I teach is exactly the same. Which is daft.

              1. Your issue is with the First Amendment, which says that religious institutions are different. The government can regulate barber shops and coal mines, but not churches. If a public-school teacher or private-sector employee converts to Islam, he can’t be fired for that. If a Catholic-school teacher converts to Islam, he can be fired for that. I don’t think the majority of people have a problem with that.

                1. “Your issue is with the First Amendment, which says that religious institutions are different.”

                  It doesn’t say that. It says nothing about religious institutions, except that the Congress can’t establish one.

                  ” The government can regulate barber shops and coal mines, but not churches. ”

                  They didn’t try to regulate a church. They (allegedly) tried to regulate a school.

                  1. “It doesn’t say that. It says nothing about religious institutions, except that the Congress can’t establish one.”

                    It says a bit more than that; More like, Congress can’t legislate on the topic. I agree that this really only means that Congress can neither establish a national church, nor interfere in any way with states establishing state churches. (And since the 14th, the states are similarly constrained. So no established churches at all.)

                    Where the real rubber hits the road is free exercise. And, yes, that’s relevant even if a religion is running schools.

              2. So then we’re back to the problem I started with. If I teach here, one result, and if I teach there, different result, even if what I teach is exactly the same. Which is daft.

                I don’t know why you think it’s necessarily daft that an exemption may turn on the nature of the employer as opposed to the nature of the job.

                1. You don’t think it’s daft that a description of the job… is it ministerial or not ministerial… would not depend on how the job is done, but rather, on who it is done for? That seems so self-evident. It’s not daft in a unique manner… there’s lot’s of daftness in the law… but daft it is.

                  1. Correct, I don’t think it’s daft. And as I stated, I don’t know why you think it’s daft.

                    (But just for clarification, I was speaking in the abstract about daftness; I don’t accept the premise in this case that the plaintiff’s duties were exactly the same as those done by a teacher in a secular school.)

            2. Please read the decision or, at a minimum, my comment above.

  4. unless you buy into the claim that mathematics, say, or physics, teaches the beauty of His creation and is therefore religious in nature.

    I went to a Catholic Highschool. I suspect Sister Abels, my physics teacher, would have made that precise claim. She also included an unit on religion and science. So one might argue that at least she was ministerial.

    None of my other math or science teachers were nuns and did not include any religion in science or math class. All were practicing Catholics, were required to go to school masses, and to be involved in other activities with religious overtones.

    I already was an atheist by that time; to me there seemed to be an unending number of these religious activities. I suspect my Mom thought constant exposure to the activities or nice people involved in them would magically make me return to Catholocism. Mom’s hope was not fulfilled, but it seems reasonable to suggest teachers at that school had at least some “ministerial” function.

    1. Can you reconcile
      “None of my other math or science teachers were nuns and did not include any religion in science or math class.”

      with

      ” it seems reasonable to suggest teachers at that school had at least some ‘ministerial’ function.”

      ?

      How about this… none of my teachers included any religion in science or math class, or any other class, because it was public school. Are those teachers also providing ministerial function sufficient to overcome discrimination liability on the part of the school?

      1. James

        because it was public school

        Yep. Teachers shouldn’t provide any ministerial functions in public schools.

        Are those teachers also providing ministerial

        Let’s hope not. If they are, at least some parents will have a 1A complaint.

        But all this is irrelevant to diagnosing whether teachers in a Catholic school, who are required to attend mass with students, and required to be involved in religious activities do have a ministerial function. No public school teacher is required to do any of these things. If they were, they could lodge a 1A complaint against the public school for forcing them to perform ministerial functions.

        ..sufficient to overcome discrimination liability on the part of the school?

        I have no idea how much ministerial element is sufficient to over come discrimination libability on the part of a school. I am merely pointing out that an argument can be made that all teachers at the high school I went to were required some ministerial element to be employed there. Whether it is a “sufficient” amount… dunno.

        I do know that a public school that tried to require them to participate in Roman Catholic services would have legal issues. Someone would sue the school and the school would lose. (As such a school should.)

        1. ” who are required to attend mass with students, and required to be involved in religious activities do have a ministerial function.”

          Let’s leave them out, and stick with the ones who “did not include any religion in science or math class.”

          You’re still jumping from “no religion in the class” to “but they’re providing ministerial function.”

          “I do know that a public school that tried to require them to participate in Roman Catholic services would have legal issues.”

          Not necessarily. Back in the day, my ex-wife earned a degree in Religious Studies from the state university.

          1. and stick with the ones who “did not include any religion in science or math class.”

            Focusing on these specific teachers: Like all teachers at the school, these teachers were required to participate in Roman Catholic services and participate in other religious events at school. This participation was done with students and intended to serve as an example of proper devotion yada, yada.

            You’re still jumping from “no religion in the class” to “but they’re providing ministerial function.”

            All teachers provided at least some ministerial function. These activities were often not performed in class.

            Back in the day, my ex-wife earned a degree in Religious Studies from the state university.

            “Them” in the sentence you quoted referred to the employees– specifically teachers. A student earning a degree would not be a counter example to my statement.

            Beyond that, both attending university, and studying a particular degree at university are choices and so not required of anyone. So: once again, not a counter example.

            1. ““Them” in the sentence you quoted referred to the employees– specifically teachers. A student earning a degree would not be a counter example to my statement.”

              Gosh, I’m sorry I forgot to mention that she took classes from teachers while she was at the university. In retrospect, I can see how you must have assumed that she earned a degree without ever taking any classes from any professors or instructors, as I didn’t provide you with enough facts to rule out this possibility.

              “Beyond that, both attending university, and studying a particular degree at university are choices and so not required of anyone. So: once again, not a counter example.”

              Man, you moved those goal posts so far, so fast I almost didn’t even see them moving.

              1. Pollock,

                forgot to mention that she took classes from teachers

                So? Yes. I knew she took classes from professors who taught. These teachers are also not counter examples to my claim.

                Man, you moved those goal posts so far, so fast I almost didn’t even see them moving.

                I haven’t moved them at all.

                1. This is not going back on my point that people elect to pursue certain degrees (just as some people elect to take certain jobs like “bartender”. )

                  But I’m curious to learn what you think constitutes “required” and so on. In that vein, in would be interesting if you would specify which roman catholic services or activities your wife was required to participate in (as opposed to observe, learn, know about or understand) as a condition of obtaining her degree. When doing specifying services, please precisely describe what behaviors you think constitute “participating” in the activities (as opposed to other verbs). Also describe what way you think the behavior was “required” to get her degree. Then we can hunt around and learn whether a student could request to be excused from these activities and still graduate.

                  FWIW: My best friend from high school has a ph.d. in religious studies from Oxford and was not required to participate in any religious activities. Professors were certainly not required to participate in any either! They had wide latitude in deciding course requirements (as is usual at most American universities.) So I would be interested to learn what sorts of participation you think was required of your wife as a condition of earning her degree or what participation you think was required of professors.

                  You may not have noticed, but you haven’t said what sorts of participation you think either of these two groups were required to be involved in.

  5. Split of judges in the en banc was literally every Clinton/Obama appointee vs. every Bush/Trump appointee with the exceptions of Eric Miller (I assume he was recused, but the order doesn’t say) and Kenneth Lee (he wasn’t on the court yet). It’ll be interesting to see how this develops moving forward, especially if the president is elected to a second term. Even if he’s not, 11 judges is a forceful “minority” to reckon with.

    1. The partisan split is one reason why many people voted for Trump.

      While imperfect [e.g. Tony Kennedy] conservative cultural interests have a better chance with GOP judges.

  6. I understand the religious school teacher case has unusual circumstances. If this is the same principal who embezzled money to spend on gambling, it tends to cast o the religious legitimacy of her decisions.

    That said, in an ordinary case, I think the fact that a teacher teaches a religion class is enough to bring the situation under the ministerial exception.

  7. Given that a number of conservative religions do not ordain women but have them do various traditional religious roles, formal ordination may be a particularly inappropriate criterion for First Amendment purposes. A traditional religious role, such as teaching religion on the Church’s behalf, should suffice.

  8. […] Short Circuit: A Roundup of Recent Federal Court Decisions Citations to nowhere, satanic cardigans, and untested rape kits. […]

  9. “whether the citizenship question was unconstitutionally intended to shift political power to white voters.”

    It’s interesting how the exclusion of the question didn’t generate questions of unconstitutionally intending to shift power to white urban voters, but the inclusion of the question does.

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