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Monday, January 16, 2012



Thank you for introducing me to the "excessive entanglement" principle. May I challenge its applicability to Hosanna-Tabor? In Lemon, the Court declines to establish an ongoing surveillance system to monitor the use of state funds. I see that entanglement quite clearly: state bureaucrats poring over the books of parochial schools on a regular basis. Ick!

But in Hosanna-Tabor, the Court isn't being asked to entangle parochial schools with a new layer of bureaucracy. The agent of "entanglement" isn't the State, but an individual plaintiff suing to protect her basic rights as a worker. Maybe a difference of degree isn't enough to negate the doctrine, but it seems we'd have to consider that difference before applying it.

In Lemon, the rejection of entanglement didn't really deny anyone his or her rights, did it? I suppose there is some similarity: Lemon appears to say that if you choose to send your kids to parochial school, you forfeit your right to public support for your child's education. Hosanna-Tabor says that if you choose to work for a parochial school (at least in certain jobs), you surrender your right to protection from job discrimination. The latter seems... more potent? In the former, you decline a state benefit. In the former, you accept a private harm. Does that make a difference in the legal logic?

Ken Blanchard

Cory: parents who wish to send their children to parochial schools have to pay for an education twice: one in the form of taxes and again in the form of tuition. This is a heavy burden for families of modest means. People like the Obamas, of course, can easily afford to send their kids to any number of private schools. If you wish to say that that is a choice those parents make, fine.

If you choose to become a minister then, yes, you forfeit your right to protection from anti-discrimination laws. That is unavoidable if you wish to leave the church free to organize itself according to principles of faith. I see no way that courts could intervene in squabbles within the church without deciding what is a genuine principle of faith and what is not. If there is such a thing as "excessive entanglement", that would surely be it.

Bill Fleming

Sounds like somebody needs to form some good old-fashioned guilds to me. Church workers of the world unite. You have nothing to lose but your ...(help me out here Cory. There are soooo many fun word choices, I'm having trouble making one...)


thank you very much your post is very interesting

Ken Blanchard

Bill: we have guilds, only we call them unions. I realize that you were joking, but if church workers could unionize... see above.


I'm still seeing a difference there, Ken. When I choose to increase my expenses by adding private school tuition to my budget, I'm harming no one. I'm not really surrendering a right; I'm just choosing not to exercise it. Under Hosanna-Tabor, the court is granting certain employers carte blanche to commit significant harm. We don't seem to need excessive entanglement to distinguish between a church firing a pastor or teacher for teaching fake Gospels and a parochial school canning someone out of discriminatory pettiness. Do we really have to throw out all oversight of employer-employee relations in this situation?

Ken Blanchard

Cory: yes, we do. One person's "discriminatory pettiness" is another person's standing on principle. Churches get to decide who is a member and who is a priest. Anything short of that makes the state the arbiter of inter-church squabbles. Again: if that isn't "excessive entanglement", I can't imagine what would be. Again: if a Native American religious organization tells me I can't apply for a position in their organization because I'm not a member of a tribe, that may be real harm to me, economically or otherwise, but that is their free exercise of religion. Sorry, but liberties involve costs.


Carol:Well said. I am a Vanderbilt grad, BA 1975. I have a love-hate relationship with VU. I loved it when Chancellor Heard was lenidag, but seldom since. VU is in every sense run with a cold corporate hand. You understand that a Corporation is a legal person in the eyes of the law, but a corporation is not a human being, not a real person. It is a legal fiction. Corporatons are run by groups of people called Boards. They are real people, but that doesn't mean they act with humility or compassion. Vanderbilt is a corporation, and its leaders have an agenda. NEVER, since Chancellor Heard left, have I seen leaders at Vanderbilt exemplify humility or compassion. We can hardly expect them to show any favoritism toward Christian groups like CLS. To the contrary, they bend over backwards to show that political correctness must be obeyed by all organizations, including religious ones. They are not human, they are a corporation. Corporartions do not have souls.

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