Civil Procedure and the Ministerial Exception

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the U.S. Supreme Court recognized a ministerial exception to the ordinary rules of employer liability. The Court also concluded that the exception operates as an affirmative defense rather than a jurisdictional bar. This conclusion raises quite significant questions about how courts should address the exception in the course of litigation. This Article posits that courts should approach these procedural questions in light of the underlying justification for the ministerial exception. The exception reflects a longstanding constitutional limitation on the competence of courts to resolve “strictly and purely ecclesiastical” questions. To conclude that the exception operates as an affirmative defense does not alter this fundamental limitation on the authority of secular courts. As a practical matter, this means that in litigation between religious institutions and their employees, courts may be required to manage discovery to resolve threshold questions about the application of the ministerial exception before permitting broader discovery. Similarly, courts should consider permitting interlocutory appeals of trial court decisions that deny motions for summary judgment based on the exception. And courts not only should conclude that religious institutions do not waive the defense by failing to raise it but also ought to raise it sua sponte when the facts indicate that the exception may apply. These departures from the ordinary treatment of affirmative defenses are necessary to respect the constitutional principles that the Court articulated in Hosanna-Tabor

Flight data display studies for real time computer flight evaluation Final report

Real time displays for in-flight monitoring of Saturn launch vehicle

Gordon College and the Future of the Ministerial Exception

In Gordon College v. DeWeese-Boyd, a social work professor at a religious college sued after she was denied promotion. The college asserted the “ministerial exception,” a judicially crafted and constitutionally grounded exception to the ordinary rules of liability arising out of the employment relationship between religious institutions and their ministers. Although the plaintiff had no distinctively religious duties, the college expected her (and all other faculty) to integrate the faith into her teaching and scholarship. The Massachusetts Supreme Judicial Court (SJC) held that this obligation, standing alone, was insufficient to qualify the plaintiff as a minister within the meaning of the exception. The U.S. Supreme Court denied the college’s petition for certiorari, but Justice Alito, joined by three other Justices, issued a statement respecting the denial. He criticized the SJC’s view of religious education, suggested that the mere duty to infuse the faith into teaching and scholarship was sufficient to qualify a professor as a minister, and expressed willingness to review the SJC’s decision after a final judgment. Nonetheless, DeWeese-Boyd’s claims may proceed to litigation. Justice Alito’s statement is significant both for the scope of the ministerial exception—as applied to religious colleges and other employers—and for the future of the relationship between the Constitution’s Religion Clauses. Justice Alito’s capacious understanding of the ministerial exception—and his view that it is grounded primarily in the Free Exercise Clause, rather than the Establishment Clause—will likely leave little room for civil courts to adjudicate claims that assert wrongful treatment by religious institutions of ministerial employees. Equally important, Justice Alito’s view suggests a continued marginalization of the Establishment Clause in ways that will have effects far beyond the world of higher education

God and State Preambles

Those who question the permissibility of official acknowledgments of God might be surprised to learn that the preambles of 45 of the 50 state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God\u27s blessing on the state\u27s endeavors. Yet there has been no detailed assessment of the preambles\u27 history or significance. This paper seeks to remedy that gap. The preambles complicate the claim that official acknowledgments of God are incompatible with our legal culture. But the history of their adoption also does not offer clear support for those who support a robust inter-relationship between religion and civil government. References to God in state preambles were outliers for the first half-century after the ratification of the federal Constitution and did not become common until the 1840s, when the effects of the Second Great Awakening-and its commitment to the idea that religion was the province of the community and the state-influenced the process of state constitution-making. Most of the preambles are thus the product of a movement that sought to create, rather than to continue or restore, a tradition of collective acknowledgment of God in state constitutions. The complex history of the preambles reveals the difficulty of relying on them to assert any strong normative claims about the proper relationship between religion and civil government. On the one hand, the history of the preambles does not provide obvious support to those who treat the original meaning as dispositive today, because there is no unambiguous and unbroken tradition, dating to the framing, of a dominant practice of references to God in state preambles. On the other hand, those who accept the possibility of dynamic constitutional meaning cannot readily ignore the near-uniform practice of referring to God in the preambles. At the same time, the character and function of a constitutional preamble-to state the polity\u27s aspirations and inspirations without creating any operative law-might be sufficiently distinctive to limit the preambles\u27 relevance for other forms of official endorsement of religious messages

Establishment Clause Mythology

For 75 years, the Supreme Court’s opinions have reflected stark conflict between two competing narratives about the Establishment Clause’s meaning and legal foundation. One view holds that the Constitution requires a separation between church and state. The other view asserts that the government may promote religion. The former view—which we call separationism—is based on the framers’ understanding of the nature of civil government, and on a political theory of liberal pluralism. The latter view—which we call religionism—is usually grounded in tradition, and principally has its roots in the Second Great Awakening of the nineteenth century and its urge to transform political society to serve religion.This conflict has a definite trajectory. From the middle of the twentieth century until the 1980s, the separationist view almost always prevailed in the Court’s decisions. Starting in the 1980s, the alternative, religionist view began to displace the separationist view. This trend has recently accelerated.We seek to provide a comprehensive account of the development of the religionist view of the Establishment Clause. Proponents of the religionist account typically claim that “history and tradition” support their approach, but they have not explained why tradition is a sufficient normative basis for current constitutional understandings. This turn toward tradition as a preferred normative methodology demands critical evaluation. When tradition becomes the source of adjudicative norms, courts must answer difficult questions about the choice, scope, age, duration, and depth of the claimed tradition. In addition, reliance on tradition requires consideration of the role that contemporary interpreters play in reconstituting the past when they seek to address present issues. Traditions are not found; they are created, because interpreters have deemed some past practices worthy of persisting normative force. Proponents of the religionist account have not explained why the practices that they elevate are more worthy of normative respect than other practices that cannot be reconciled with their claim of tradition.The Court’s construction of a religionist Establishment Clause narrative coincides with the rise of an aggressive form of Christian nationalism in our politics. Both ultimately rely on a mythology that imagines a special relationship between the United States and God, in which God’s blessing depends on the American people’s reverence for God and obedience to divine law. We can step back from the civil conflict that this mythology threatens to foment only by recommitting to separationism—and its core principle that religion and civil government ought to occupy distinct spheres

Biblical Literalism and Constitutional Originalism

Critics of constitutional originalism have often described originalists as “fundamentalists” or “literalists” as a way of discrediting originalism. This comparison has obvious rhetorical force because it tends implicitly to taint originalism with guilt by association, given views in the academy of Protestant fundamentalism. But originalism\u27s critics are not the only ones who appear to have noticed the similarities between the two interpretive approaches;when they have entered the arena of policy and judicial politics, proponents of biblical literalism have generally embraced originalism as the correct approach to constitutional interpretation. It is not surprising that both critics of constitutional originalism and proponents of biblical literalism have noted a connection between the two interpretive approaches, as there are some obvious similarities. Indeed, the similarities go beyond the caricatures that both critics and proponents have tended to offer. Literalism and originalism share a core commitment to the idea that their relevant texts have a timeless, fixed meaning that is readily ascertainable. In addition, both interpretive approaches are in significant part projects of restoration;both are deeply concerned about the loss of constraint that results from interpretation that is untethered to text;both have a strong, self-consciously populist impulse and an equally strong and self-conscious disdain for elite opinion, with respect to both interpretive norms and cultural values;and both maintain that all other approaches to their relevant texts are fundamentally illegitimate because they breach a duty of fidelity. Yet if we are to understand the force of the critics\u27 comparison and, more important, the continuing attraction of originalism to conservative Protestants, we need not only a more nuanced appreciation of the similarities between the two approaches but also a better understanding of the differences. And, indeed, both critics of originalism and literalists who urge originalism as an approach to constitutional interpretation have failed to identify the fundamental differences between the two approaches. For literalism, interpretation is an act of faith in a God who is just and good. Accordingly, for the literalist, obedience to the biblical text — the word of God — is the highest human good. Originalism, in contrast, demands loyally to the text regardless of its moral quality;just or good results are accidental rather than necessary features of originalist interpretation. Originalism\u27s critics have been perhaps too quick to assign to originalists assumptions that, even to literalists, are unique to the project of biblical interpretation. More important, literalists who have been attracted to originalism — including those whose attraction is instrumental — might want to take a closer look at the approach and its positivistic character before giving an unqualified endorsement to a theory that could just as well produce results anathema to their most deeply held (and biblically ordained) beliefs. Reprinted by permission of the publisher

God and State Preambles

Those who question the permissibility of official acknowledgements of God might be surprised to learn that the preambles of forty-five of the fifty state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God\u27s blessing n the state\u27s endeavors. Yet there has been no detailed assessment of the preambles\u27 history or significance. This paper seeks to remedy that gap. The preambles complicate the claim that official acknowledgements of God are incompatible with our legal culture. But the history of their adoption also does not offer clear support for those who support a robust inter-relationship between religion and civil government. Reference to God in state preambles were outliers for the first half-century after the ratification of the federal Constitution and did not become common until the 1840s, when the effects of the Second Great Awakening-and its commitment to the idea that religion was the province of the community and the state-influenced the process of state constitution-making. Most of the preambles are thus the product of a movement that sought to create, rather than to continue or restore, a tradition of collective acknowledgement of God in state constitutions. The complex history of the preambles reveals the difficulty of relying on them to assert any strong normative claims about the proper relationship between religion and civil government. On the other hand, the history of the preambles does not provide obvious support to those who treat the original meaning as dispositive today, because there is no unambiguous and unbroken tradition, dating to the framing, of a dominant practice of references to God in state preambles. On the other hand, those who accept the possibility of dynamic constitutional meaning cannot readily ignore the near-uniform practice of referring to God in the preambles. At the same time, the character and function of a constitutional preamble-to state the polity\u27s aspirations and inspirations without creating any operative law-might be sufficiently distinctive to limit the preambles\u27 relevance for other forms of official endorsement of religious messages

Biblical Literalism and Constitutional Originalism

Critics of constitutional originalism have often described originalists as “fundamentalists” or “literalists” as a way of discrediting originalism. This comparison has obvious rhetorical force because it tends implicitly to taint originalism with guilt by association, given views in the academy of Protestant fundamentalism. But originalism\u27s critics are not the only ones who appear to have noticed the similarities between the two interpretive approaches;when they have entered the arena of policy and judicial politics, proponents of biblical literalism have generally embraced originalism as the correct approach to constitutional interpretation. It is not surprising that both critics of constitutional originalism and proponents of biblical literalism have noted a connection between the two interpretive approaches, as there are some obvious similarities. Indeed, the similarities go beyond the caricatures that both critics and proponents have tended to offer. Literalism and originalism share a core commitment to the idea that their relevant texts have a timeless, fixed meaning that is readily ascertainable. In addition, both interpretive approaches are in significant part projects of restoration;both are deeply concerned about the loss of constraint that results from interpretation that is untethered to text;both have a strong, self-consciously populist impulse and an equally strong and self-conscious disdain for elite opinion, with respect to both interpretive norms and cultural values;and both maintain that all other approaches to their relevant texts are fundamentally illegitimate because they breach a duty of fidelity. Yet if we are to understand the force of the critics\u27 comparison and, more important, the continuing attraction of originalism to conservative Protestants, we need not only a more nuanced appreciation of the similarities between the two approaches but also a better understanding of the differences. And, indeed, both critics of originalism and literalists who urge originalism as an approach to constitutional interpretation have failed to identify the fundamental differences between the two approaches. For literalism, interpretation is an act of faith in a God who is just and good. Accordingly, for the literalist, obedience to the biblical text — the word of God — is the highest human good. Originalism, in contrast, demands loyally to the text regardless of its moral quality;just or good results are accidental rather than necessary features of originalist interpretation. Originalism\u27s critics have been perhaps too quick to assign to originalists assumptions that, even to literalists, are unique to the project of biblical interpretation. More important, literalists who have been attracted to originalism — including those whose attraction is instrumental — might want to take a closer look at the approach and its positivistic character before giving an unqualified endorsement to a theory that could just as well produce results anathema to their most deeply held (and biblically ordained) beliefs. Reprinted by permission of the publisher

Mathematical Model and Experimental Results for Cryogenic Densification and Sub-Cooling Using a Submerged Cooling Source

Among the many factors that determine overall rocket performance, propellant density is important because it affects the size of the rocket. Thus, in order to decrease the size of a rocket, it may be desirable to increase the density of propellants. This study analyzes the concept of increasing the propellant density by employing a cooling source submerged in the liquid propellant. A simple, mathematical model was developed to predict the rate of densification and the propellant temperature profile. The mathematical model is generic and applicable to multiple propellants. The densification rate was determined experimentally by submerging a cooling source in liquid oxygen at constant, positive pressure, and measuring the time rate of change in temperature with respect to vertical position. The results from the mathematical model provided a reasonable fit when compared to experimental results

Rapid method for determination of antimicrobial susceptibilities pattern of urinary bacteria

Method determines bacterial sensitivity to antimicrobial agents by measuring level of adenosine triphosphate remaining in the bacteria. Light emitted during reaction of sample with a mixture of luciferase and luciferin is measured