SCOTUS to Consider Scope of Ministerial Exception

When the Wisconsin Supreme Court decided Coulee Catholic Schools v. LIRC, 2009 WI 88 , Professor Esenberg and I both took to this blog to praise Justice Gableman’s majority decision. The decision is undoubtedly the most important religious liberty case in Wisconsin since Jackson v. Benson (1998) and State v. Miller (1996). It concerned the scope of the “ministerial exception” to anti-discrimination employment laws and the status of a teacher in a religious school.

Recently, the U.S. Supreme Court accepted cert in Hosanna-Tabor Lutheran Church & School v. EEOC. The case presents the same basic question as Coulee: does the ministerial exception include “a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship”?  

Continue ReadingSCOTUS to Consider Scope of Ministerial Exception

Connick v. Thompson: Both Answers Are Right — What Was the Question Again?

In Supreme Court cases, the majority and dissent sometimes talk right past one another, framing the question for decision so differently that they almost seem to be writing about different cases.  See, e.g., the dueling opinions earlier this week in Connick v. Thompson (No. 09-571).  Thompson was convicted of attempted armed robbery and murder, and then sentenced to death.  A month before his execution, a bloodstained swatch of cloth came to light that proved Thompson was not the perpetrator in the robbery prosecution.  The murder charge was eventually retried, and Thompson was acquitted.  In all, he served 18 years in prison based on his wrongful convictions.  Moreover, it turns out that an assistant district attorney who was part of the team that prosecuted Thompson deliberately withheld the swatch.  The District Attorney’s office now concedes that Thompson’s constitutional rights were violated under Brady v. Maryland.  The question now is whether the DA’s office should be civilly liable to Thompson for this violation.

Prior cases interpreting 42 U.S.C. § 1983 (the federal civil rights law Thompson invoked in his lawsuit) reject vicarious liability for the government when a government employee violates consitutional rights; in order to recover, as matters unfolded, Thompson was obliged to show that the District Attorney had been deliberately indifferent to a need to train his subordinates regarding their Brady responsibilities.  Prior cases also establish that a “failure to train” claim must ordinarily be based on multiple violations of constitutional rights; a single violation, such as that suffered by Thompson, would require extraordinary circumstances to justify relief.

So much everyone agreed on. 

Continue ReadingConnick v. Thompson: Both Answers Are Right — What Was the Question Again?

The Morning After: Lessons From the Wisconsin Budget Battle

At last the end game has arrived for the budget bill, after more than three weeks of deadlock in Madison.  Indeed, it was obvious to everyone that the impasse could not persist, and that the only two options available were either a compromise (unlikely) or the eventual adoption of Governor Walker’s bill intact.

Wisconsin’s largest newspaper, the Milwaukee Journal Sentinel, has largely failed to take a coherent editorial position on the budget debate.  In fact, the entire local media, both print and television, seem to have bent over backwards in order to appear sympathetic to the arguments of both sides.  In this regard, the local media seems to see its role as something akin to the role of an arms dealer during a civil war: issue statements generally supportive of both sides and hope to sell your product to the widest possible audience. 

However, I believe that there are larger lessons to be learned from the budget battle, and that the issues raised over the last three weeks transcend partisanship. 

Continue ReadingThe Morning After: Lessons From the Wisconsin Budget Battle