Academic journal article Northwestern University Law Review

ACT III OF THE MINISTERIAL EXCEPTION[dagger]

Academic journal article Northwestern University Law Review

ACT III OF THE MINISTERIAL EXCEPTION[dagger]

Article excerpt

ABSTRACT-The Supreme Court's recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC marks a resounding victory for the principle of church self-governance and the autonomy of religious institutions. But it is just the beginning of the story, not the end. Hosanna-Tabor properly recognizes that a significant measure of church autonomy is a key element part of the American church-state settlement, and may signal a broader recognition of the important role played by nonstate institutions in our social infrastructure. But it does not tell us how churches should behave under such a regime of autonomy, or how those inside and outside the church should respond. This commentary argues that these are the questions we are now obliged to consider. Institutional autonomy imposes responsibilities as well as rights, and churches must ponder when, whether, and how they will use their autonomy. It also imposes a civic duty on citizens to monitor, engage with, and sometimes criticize our central infrastructural nonstate institutions. In short, Hosanna- Tabor raises nonlegal questions that are just as important as the allocation of legal authority between churches and other nonstate institutions and the state.

INTRODUCTION

Law is filled with stories without endings. Case reports and law review articles generally conclude with the judgment on a case. Once judgment is rendered, either by a judge or by a scholar analyzing an opinion, it is relatively rare for anyone to consider what happens next.1 In drama, a gun that appears onstage in Act I is sure to go offin Act III: the play has not ended until there is a climax, until the full narrative has reached its conclusion.2 In law, the curtain often draws shut abruptly in medias res, at the end of Act II.

One obvious reason for this is that the law and its students generally focus on a single question: the question of legal power, especially the power of courts to order some action and make it stick.3 Authority, jurisdiction, liability, or immunity; terms like these are the meat and drink of the law. They are the answers to the question of who gets to "say what the law is."4

It is all perfectly natural, and perfectly odd. Consider some famous cases that turn on the question of the nature and limits of judicial power. It is natural to want to know, in a case in which a police department has been using a potentially lethal "chokehold" method of restraint, whether the department can be made to cease its conduct.5 If the government is accused of bombing a country with which it is not at war, you naturally want to know whether it can be ordered to ground its planes.6 If a private company is collaborating with the state to engage in the extraordinary rendition of individuals to nations that commit torture, you will want to know whether it can be held to account or whether any litigation should be dismissed because it would require the revelation of sensitive confidential information.7

Unless your focus is narrow and your curiosity highly limited, however, you will also want to know what happens next. Unless you confuse the "is" of judicial or governmental power with a moral "ought," you are unlikely to think that the fact that a party, public or private, can do something without legal consequences means that it should. Some party will be leftwith the final authority to act; but how it acts matters as much or more than the fact that it can act. To say that a dispute is out of the court's hands does not mean it is in no one's hands at all. The party with the authority will still have a choice about what to do with that authority. And when, in one of these judicial dramas, the court's obligations end, our obligations as citizens are just beginning. We must decide whether society should bow out of the tale, leaving the party with the authority to act as it wishes-or whether, even if the law cannot act, society should take softor hard action to persuade the party to act as we think it should. …

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