Wednesday, January 11, 2012

First Amendment Wins!

As expected, the Supreme Court handed down its decision in Hosanna-Tabor v. EEOC (10-553) today. in Hosanna-Tabor the Court ruled 9-0 in favor of the defendant, Hosanna-Tabor Lutheran Church and School, recognizing that there is a "ministerial exception" to anti-discrimination laws based on both religion clauses in the First Amendment.

While the central issue of the case concerned a minister who was relieved of her duties due to illness and then later fired when she sued to be reinstated against the rules of her church, Court-watchers have been nervous about the outcome because a decision in the plaintiff's favor could have opened the doors to further government intrusion in Church affairs ... for instance, forcing the Church to ordain women or homosexuals.  However, in his opinion for the Court, Chief Justice John Roberts noted that while there is often some tension between the establishment and free-exercise clauses, one of the reasons both clauses exist is to keep the government from meddling in the internal affairs of churches.  The "wall of separation" is not a one-way barrier.

Here are the relevant paragraphs:

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment deci­sion. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By impos­ing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individ­uals will minister to the faithful also violates the Estab­lishment Clause, which prohibits government involvement in such ecclesiastical decisions.
The EEOC and [Cheryl] Perich [the original plaintiff] acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary.  According to the EEOC and Perich, religious organizations could successfully defend against employment discrimination claims in those circum­stances by invoking the constitutional right to freedom of association—a right “implicit” in the First Amendment.  The EEOC and Perich thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves.
We find this position untenable.  The right to freedom of association is a right enjoyed by religious and secular groups alike.  It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club.  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. …
It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability.  But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. [Employment Div., Dept. of Human Resources of Oregon v.] Smith[1] 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.  The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.
Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree.  We are reluctant, however, to adopt a rigid formula for decid­ing when an employee qualifies as a minister.  It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.
One possible source of concern, as Jay Anderson of Pro Ecclesia Pro Familia Pro Civitate commented on The American Catholic, is that "it tailors a ministerial exception that is far too narrow to provide protection for religious bodies and organizations in their essential missions and functions."  This is a valid point of concern; while the last paragraph I quoted deliberately says that SCOTUS is not attempting to limit the reach of the "ministerial exception" with this decision, it's not impossible that a future litigant will see in Roberts' arguments, which pay a little too much attention to Perich's credentials, a bright-line standard for determining who is a "minister" for the purposes of the exception.

Touching on this very aspect, both Associate Justices Clarence Thomas and Samuel Alito penned concurring opinions, with Justice Elizabeth Kagan concurring on the latter.  Thomas writes,
As the Court explains, the Religion Clauses guarantee religious organizations autonomy in matters of internal governance, including the selectionof those who will minister the faith.  A religious organization’s right to choose its ministers would be hollow, however, if secular courts could second-guess the organization’s sincere determination that a given employee is a“minister” under the organization’s theological tenets.  Our country’s religious landscape includes organizations with different leadership structures and doctrines that influence their conceptions of ministerial status.  The question whether an employee is a minister is itself religious in nature, and the answer will vary widely.  Judicial attempts to fashion a civil definition of “minister” through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the “mainstream” or unpalatable to some.   ... [Citing Latter-Day Saints v. Amos][2] (“[I]t is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious.  The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission.  Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.”)  These are certainly dangers that the First Amendment was designed to guard against.
Alito explains:

... The term “minister” is commonly used by many Protestant denominations to refer to members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists.  In addition, the concept of ordination as understood by most Christian churches and by Judaism has no clear counterpart in some Christian denominations and some other religions.  Because virtually every religion in the world is represented in the population of the United States, it would be a mistake if the term “minister” or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one. ...
The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith.  Accordingly, religious groups must be free to choose the personnel who are essential to the performance of these functions.
The “ministerial” exception should be tailored to this purpose.  It should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.  If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position.
 Overall, though, Hosanna-Tabor is a significant victory for every church in America.  It's a clear warning from SCOTUS to the Executive that the justices — including Obama's appointees — take a dim view of attempts to strong-arm religious bodies under the cover of anti-discrimination.

[1] 494 U.S. 872 (1990).
[2] 483 U.S. 327, 336 (1987)