Hosanna in the Highest!

 
 

In a recent decision, the Supreme Court has held that the First Amendment provides additional and independent rights to religious organizations, beyond those to which non-religious groups are entitled.

Every now and then, the Supreme Court surprises its critics by getting something absolutely, completely right: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, decided on Wednesday, is just such a case. The Court held that the Religion Clauses of the First Amendment—both the Free Exercise Clause and the Establishment Clause—prohibit any government interference with the employment relationship between a religious body and those it in good faith (so to speak) considers its “ministers”: those leaders, teachers, and others who, in the words of the Court, “personify” the beliefs of the religious community. The decision embraced, in broad language, the constitutional right of religious groups to autonomy in matters of their own “internal governance” and to the freedom to exercise “control over the selection of those who will personify its beliefs.” It specifically affirmed “a religious group’s right to shape its own faith and mission through its appointments.” And it grounded its holding in the proposition that “the text of the First Amendment itself . . . gives special solicitude to the rights of religious organizations.”

The decision was, strikingly, unanimous: no one disagreed with Chief Justice Roberts’s opinion for the Court. The only separate opinions were concurring ones, suggesting further extensions or specific applications of the Court’s reasoning. On a Court that has often been bitterly divided, this expression of unanimity is truly remarkable.

The decision in Hosanna-Tabor is an occasion for celebration, for dancing in the streets (or, for some Baptists, simply praising the Lord). Essentially everything the Court said was right. And every right thing it said is important—a point brought home by considering the consequences if the Court had ruled the opposite way, as the Obama administration had urged and as many feared possible.

Consider for a moment, point by point, what makes Hosanna-Tabor so praiseworthy:

First, the Court specifically grounded the so-called “ministerial exception” to employment discrimination laws in an affirmative First Amendment constitutional right of religious organizations to select their own faith leaders and exemplars, free of government interference. The “ministerial exception” originated in a series of lower court decisions, beginning forty years ago, reading into federal anti-discrimination employment statutes an implied exception for a church’s hiring (and firing) of ministers. The exception had the feel of judge-made law, carving out of the law as written an unwritten escape hatch (of indeterminate breadth) for churches and synagogues. The lower courts then struggled with how to apply an unwritten statutory exception, creating all the problems, in principle and practice, common to legal rules seemingly made up by judges as they go along, in disregard of the text.

Hosanna-Tabor was the Supreme Court’s first case involving the “ministerial exception.” The justices might have chosen to embrace the exception on a more namby-pamby, “we-construe-the-statute-in-such-a-way-as-to-avoid-the-possibility-of-its-creating-constitutional-difficulties” approach—not exactly embracing a constitutional rule but adopting an awkward rule of interpreting statutes in such a way as to avoid possible constitutional problems. (The Court has done this a fair bit, including in the religious freedom context.) Chief Justice Roberts’s opinion would have none of that: the right embraced in Hosanna-Tabor is a First Amendment constitutional right.

This right is not a judge-made interpolation into a statute; it is not a rule of construction; it is not an avoidance of deciding a constitutional question. It is a right supplied “by the text of the Constitution itself.” Hosanna-Tabor is a constitutional holding that where the Constitution supplies one rule (here, that religious groups have the right to hire and fire, free from government interference, those who personify and represent their faith communities, as an aspect of the free exercise of religion) and a statute supplies a contrary rule (that government generally may regulate employment practices, for example, to forbid practices it considers discriminatory), the Constitution’s rule trumps the statute’s. This is straight, old-fashioned, Marbury v. Madison-style judicial review: the Constitution is law and prevails over inconsistent statutes, to whatever the extent of the inconsistency. There is nothing judge-made, narrow, ad hoc, or uncertain about this. Hosanna-Tabor is a rule of First Amendment constitutional law.

Second, the rule that Hosanna-Tabor embraces is a broad, principled rule of First Amendment constitutional law. The “ministerial exception” label really ought to be discarded, for it is now something of a misnomer, a relic of the pre-Hosanna-Tabor, lower court-developed doctrinal approach. Rather, the right should be understood as the “religious autonomy right”—an “exception” to nothing but a principle of its own.  For it is clear from the Court’s opinion that this right of autonomy embraces more than just the hiring of “ministers,” narrowly defined. The plaintiff who had sued Hosanna-Tabor Evangelical Lutheran Church and School was not a pastor in the traditional sense but a teacher in a religious school, teaching secular and religious subjects, but designated by the religious community as a minister.

This counts, the Court said. The principle established by the First Amendment is that a religious group has the “right to shape its own faith and mission through its appointments” and thus has plenary “control over the selection of those who will personify [its] beliefs.” This includes teachers, lay leaders, and persons who perform a mix of religious and seemingly “secular” functions. The right extends to those whom a religious community, operating under its own system of rules, designates as central to its religious mission and identity. The Court’s one-word descriptor perhaps says it best: those persons that the community identifies as personifying its religious identity. The Court decided only the case before it, but it made clear that the right itself is one of religious community autonomy, broadly understood. It is not a right limited to pastors alone.

This interpretation has important consequences beyond direct employment regulation through anti-discrimination laws. Student religious groups, at state university campuses and at public schools, are religious communities, too. So are para-church ministries and many other types of religious organizations. They, too, have the right to control the selection of those who personify their beliefs, and to shape their own faith and mission through their decisions.

Third, the Court in Hosanna-Tabor held that the right of religious community autonomy is a right specifically of constitutional religious freedom, which exists regardless of what rules government might have the authority to impose on (otherwise) analogous organizations. The Obama Administration had argued, vigorously, that the rules for ministers should be the same as the rules for private associations generally—that there is nothing unique about religion or religious employment. Chief Justice Roberts’s opinion demolished this position: “We find this position untenable . . . That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

This is important. The Supreme Court has unanimously held that the Free Exercise Clause of the First Amendment provides additional and independent rights to religious organizations, beyond those to which non-religious groups are entitled as a matter of the freedoms of speech and association. Even when government might be able to regulate the employment or internal governance of non-religious organizations and associations, it may not regulate the selection by religious groups of its leaders and exemplars.

Perhaps most significant of all was the Court’s response to the suggestion that Employment Division v. Smith (1990) foreclosed such special constitutional accommodation of religious practice. The Court stated flatly that this was an overly broad reading of Smith that “has no merit.” For those who have regarded (and experienced) Smith as a major retrenchment from true religious freedom, Hosanna-Tabor offered a ray of hope. The Court seemed to limit Smith much more tightly to its specific facts than it has before. Conceding that anti-discrimination laws, like Oregon’s prohibition of peyote use (at issue in Smith), are “valid and neutral” laws of general applicability, the Court distinguished Smith sharply: “a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”

It is too soon (by a long shot) to shout “Hosanna!” for the overruling of Employment Division v. Smith. But it is not too soon to observe that the Court has drawn a line—if an imperfect one—between “outward physical acts” and “internal” religious community practice that affects the “faith and mission” of the religious community, and, notably, has placed employment practices on the “internal . . . faith and mission” side of the line, not governed by Smith.

All of this is especially significant when one considers what the Court might have done—how Hosanna-Tabor could have gone very wrong. One imagines, and shudders at the prospect, of a decision in which the Court might have held that employment discrimination laws are laws that apply to everybody, on an equal basis—religious and non-religious institutions alike (citing Smith with approval, rather than distinguishing it); that, to be sure, religious institutions possessed equal rights of freedom of association to secular institutions, but not greater ones; that, whatever the possible merit of a “ministerial exception” to anti-discrimination law in extreme cases (such as requiring the Catholic Church to ordain women), the facts at hand, involving a claim of disability discrimination brought by a teacher, not a pastor, did not warrant the Court’s “creating” an exception where Congress’s statute had not done so, and the First Amendment does not of its own force create one.

That, I must confess, is how I feared the case might come out. The fact that Hosanna-Tabor did not turn out that way—and, instead, adopts precisely the opposite of each of those plausible but sinister propositions—is its great achievement.

The achievement is, in significant part, that of Chief Justice John Roberts, a masterful legal craftsman, whose skills as a legal advocate and persuader—forged by years as a leading Supreme Court practitioner, brief writer, and oral advocate—enabled him to build a unanimous Court in support of a dramatic defense of religious liberty, in an important context. He also left a trail of wonderful bread crumbs for future possible decisions. If not picked off by crows, Hosanna-Tabor’s statements of principle may become even more important than its specific holding.

The opinion closes with an important statement, shifting, subtly, the psychological balance of how the Court, and, one hopes, the country, sees these issues: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” With respect to a religious community’s freedom to select its minister, “the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”

One could do far worse than that as a statement of religious liberty, and the Court often has. Hosanna-Tabor is truly a shout of praise to first principles of the First Amendment.

Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).

 

 

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