Last year, law professor Richard Garnett of the Notre Dame Law school co-wrote an amicus brief concerning the constitutional issues in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. The gist of that brief was published as an article called “Religious Freedom, Church-State Separation, and the Ministerial Exception.” In that paper, Garnett and his co-authors wrote: “It seems to us that because any worthwhile account of religious freedom would respect the authority of religious communities to select freely their own clergy, ministers, teachers, and doctrines, any such account must include some rule like the ministerial exception. Reasonably constructed and applied, this rule helps civil decisionmakers avoid deciding essentially religious questions. In addition, and more importantly, it protects the fundamental freedom of religious communities to educate their members and form them spiritually and morally. Although the exception may, in some cases, block lawsuits against religious institutions and communities for discrimination, it rests on the overriding and foundational premise that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church–state separation puts beyond the law‘s corrective reach.”

In January, shortly after the Supreme Court handed down its decision, Dialogues host Ken Myers talked to Richard Garnett about his interest in the case and its consequences. Their conversation is featured in this issue of Dialogues.

On January 11th, the United States Supreme Court handed down a unanimous decision in what many church-state scholars are calling the most important religious freedom case in decades. The case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, highlighted the so-called “ministerial exception,” a concept that has been addressed in lower court First Amendment cases for some time. With a vote of 9-0, the court’s concerns have been stated unambiguously, and they are dramatically out of synch with the current administration and the Justice Department’s reading of the religion clauses. Since Hosanna-Tabor v. EEOC will be consequential for many years, we’re going to devote more than one edition of Dialogues on Law and Justice to the substantial issues involved. This edition features a conversation between host Ken Myers and law professor Carl Esbeck from the University of Missouri School of Law. Esbeck has published widely in the area of religious liberty and church-state relations. Last year, he co-authored a paper published by the Northwestern University Law Review Colloquy entitled “Religious Freedom, Church-State Separation, & the Ministerial Exception,” which focused on the issues raised in Hosanna-Tabor. Esbeck also co-wrote an amicus brief on behalf of a number of organizations.

Legal historian John Witte, Jr. discusses why the positivist view of law has become less compelling. Like his mentor, the late Harold Berman, Witte argues that the key to understanding Western law lies in identifying the rich, early Western dialogue between religious and secular institutions; and it requires an understanding of the ways in which legal authority shifted between church and state throughout history. Similarly, Witte argues that because legal jurisdiction in various matters has shifted from the church to the state, religious presuppositions are still a part of the vocabulary Westerners have always used to define the meaning and limits of the law. If Witte’s formulation is correct, then the consistency of the Western legal system relies upon this strong interplay between secular and religious insights; the prevailing view since the Western Enlightenment, that laws can be described in purely “secular” terms, has had the effect of unravelling the substance of the Western legal tapestry originally woven from threads of secular and religious thought.

Just before the opening of the new term of the U. S. Supreme Court, the magazine First Things published a summary of the highlights of the 2010 term. The article was called “A Free Speech Year at the Court,” and it was written by Michael McConnell, director of the Constitutional Law Center at the Stanford Law School. On this edition of Dialogues, Professor McConnell talks with host Ken Myers about how the Court is increasingly collapsing all First Amendment freedoms into freedom of speech, a trend he finds disturbing.

In 2007, MARS HILL AUDIO produced a special report on ideas about law and justice that informed some of the legal reasoning of the U. S. Supreme Court under the then-newly appointed Chief Justice John Roberts.

In September 2011, we launched a series of podcasts that extend that discussion, featuring interviews with legal scholars, philosophers, theologians, historians, and journalists. Each of these podcasts will examine how the making and judging of laws are (or ought to be) guided by principles that surpass mere utility or interest. We have re-presented our original report as the first in this new series.

Ken Myers Producer and Host