A Judicial Visit to the Classroom

Thanks to the Hon. Diane S. Sykes (Marquette University Law School, ’84) for speaking to my Wisconsin Supreme Court class this afternoon. Judge Sykes now serves on the Seventh Circuit Court of Appeals, but spent five terms on the Wisconsin Supreme Court and shared something of her experience on the court and about the nature of a collegial court with students.

One of the things that I hoped was clear to the students is the notion that even these experienced and gifted lawyers on a court of last resort struggle with the law. Minds change and dissents become majority opinions. While differences in philosophy are real (Judge Sykes does not shy from referring to “conservative” and “liberal” jurists while warning that these labels are not comprehensive and their use is complicated), judges grapple with hard cases and their differences are not simply consequentialist. She talked briefly about a decision — which she knew we had discussed in class — about whether a condition of probation might be that the defendant (who had been convicted of wilful failure to support his nine children) refrain from having further children until he could support those he already had (a state of affairs that was extremely unlikely). While the potential consequences are unpalatable, then Justice Sykes (joined in dissent by two “liberal” justices, Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley) concluded that the law prohibited such a condition. Even if we disagree with that view, the recognition that hard cases can make bad law should be married to the idea that they should not.

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Religious Freedom — or Oppression?

The BBC reports that a group in the U.K. called the Centre for Social Cohesion has issued a report finding that European governments have not done enough to protect the free speech of Muslims from other Muslims.

According to the report, Muslim reformers have not been sufficiently protected from attacks by Muslim extremists, citing as a prime example (but it offers many others) the fatwah against Sir Salman Rushdie for the publication of The Satanic Verses. It called on European governments to treat Muslims “as complete citizens, neither restricted in their freedoms nor unduly permitted to issue threats against others.”

The report suggests, in other words, a kind of multicultural condescension — a view that fatwas and threats of violence are simply the Islamic way and must, at least within the community, be tolerated. Of course, this becomes sort of a self-fulfilling prophecy as Islamic reformers are run off. When the lion is allowed to lie down with the lamb, what follows is usually dinner.

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SCOWIS to Consider Scope of Ministerial Exception

Earlier this fall, the Wisconsin Supreme Court granted a petition for review in Coulee Catholic Schools v. Labor and Industry Review Commission. The decision below is here. 

The case involves the scope of the ministerial exception to age discrimination claims under the Wisconsin Fair Employment Act. The complainant, Wendy Ostlund, was a teacher in a Catholic grade school who had been laid off. While certain of her duties were explicitly religious, e.g., she taught religion, led the students in prayer, prepared them for liturgies, and sometimes incorporated religious themes into secular subjects, most of her day was not spend in expressly religious activities.

The Court of Appeals held that the application of the exception turned on whether Ms. Ostlund’s primary duties were minsterial, i.e., did they consist of “teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship . . . .” The exception applies only when a position is “quintessentially religious,” because it is such a position that presents the prospect of making an “inroad on religious liberty” that is “too substantial to be permissible.”

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