What's the big deal with Hosanna-Tabor, yesterday's unanimous Supreme Court decision supporting a religious school's right to fire a teacher with ministerial responsibilities regardless of her health disability? Although the Court had never recognized a "ministerial exception" to federal anti-discrimination law before, lower federal courts have habitually done so. Most people would agree that religious bodies have a right to hire and fire ministers without government interference. In this case, the Court found that the teacher in question did indeed have sufficient religious responsibilities to qualify as a minister. Yet the NYT's Adam Liptak judges Hosanna-Tabor "the most significant religious liberty decision in two decades."
The big deal is that two decades ago, the Court substantially undermined the constitutional right to free exercise in Employment Division v. Smith (1990), a 6-3 decision written by Antonin Scalia that held that two Native American drug counselors could not go to federal court to claim a religious right to sacramentally ingest peyote as part of their membership in the Native American Church. Here's the language of Smith's key holding:
The bottom line is that, having been forced by the Justice Department to confront Smith directly, the conservatives on the Court significantly walked the Scalia doctrine back, without reversing Smith and annoying that famously irascible justice (who signed on to Hosanna-Tabor without so much as a concurring word). The Court's liberal wing, which for two decades has opposed Smith and its progeny, was happy to go along with this restoration of religious freedom. Roberts' dismissal of the contention that Smith foreclosed recognition of a ministerial exception no doubt had the liberals smiling up their sleeves.
The big deal is that two decades ago, the Court substantially undermined the constitutional right to free exercise in Employment Division v. Smith (1990), a 6-3 decision written by Antonin Scalia that held that two Native American drug counselors could not go to federal court to claim a religious right to sacramentally ingest peyote as part of their membership in the Native American Church. Here's the language of Smith's key holding:
Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons. See, e. g., Reynolds v. United States, 98 U.S. 145, 166 -167. The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that [494 U.S. 872, 873] Clause in conjunction with other constitutional protections. See, e. g., Cantwell v. Connecticut, 310 U.S. 296, 304 -307; Wisconsin v. Yoder, 406 U.S. 205 . Pp. 876-882.Note the reference to Reynolds. That was the famous case that in 1878 turned down the Mormon claim to have a free exercise right to polygamy with the dictum: "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices." What Smith did was prevent a religious organization from going to federal court and saying, "Look, we know that there's a neutral, generally applicable law that bars us from doing something we consider important to our faith, but we think we should be excused by the First Amendment from having to comply with it." At least that is what Smith seemed to do until yesterday. Here's what Chief Justice Jon Roberts, writing for the Court, had to say about that:
It is true that the ADA's [Americans With Disabilities Act'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. 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. See id., at 877 (distinguishing the government's regulation of"physical acts" from its "lend[ing] its power to one or the other side in controversies over religious authority or dogma"). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.Maybe ingesting peyote is an outward physical act distinguishable from being employed or not employed as the result of "an internal church decision that affects the faith and mission of the church itself." But anyone who knows anything about Mormon theology knows that the LSD Church's embrace of polygamy--"plural marriage"--was an internal church decision that affected its faith and mission profoundly. And it was Reynold's distinction between belief and practice that was used to rationalize the decision in Smith. One might add that being employed according to religious criteria seems more akin to being married according to religious criteria than it does to partaking of a controlled substance or engaging in some other outward physical act.
The bottom line is that, having been forced by the Justice Department to confront Smith directly, the conservatives on the Court significantly walked the Scalia doctrine back, without reversing Smith and annoying that famously irascible justice (who signed on to Hosanna-Tabor without so much as a concurring word). The Court's liberal wing, which for two decades has opposed Smith and its progeny, was happy to go along with this restoration of religious freedom. Roberts' dismissal of the contention that Smith foreclosed recognition of a ministerial exception no doubt had the liberals smiling up their sleeves.
Excellent analysis as always.
I think, however, that the Court would distinguish polygamy as "external." Yes, the Mormon church decided in favor of polygamy as a matter of faith, but the decision that the ingestion of peyote was a sacrament was also a matter of faith. The Smith Court said the ingestion of wine as a sacrament is legally comparable to peyote ingestion and could also have been outlawed without violating the First Amendment under a prohibition law not directly aimed at religion, but it also could be legally exempted as it was.
If Hosanna-Tabor undermines Smith, terrific. But liberals should not smile about a doctrine that allows religious organizations to discriminate on the basis of race, gender, or disability even when that discrimination has nothing to do with their religious doctrine. Indeed, the Court could have decided the case the same way under the doctrine of freedom of association without sanctioning forbidden discrimination on non-religious grounds.See http://www.religiousleftlaw.com/2012/01/hosa.html
I take your point, Steve. But I do think that it's harder to determine what is "ideological" in the case of religious bodies than it is with other associations--and I suspect I'm more inclined than you are to cut the former some discriminatory slack. The question is whether the ministerial exception is merely being used pretextually, either as a way of getting rid of a bona fide minister or as a means of excluding non-ministerial employees from anti-discrimination requirements. So far as I can see, Hosanna-Tabor leaves open the door to claims of pretext. That's why Thomas sought to go further.
Mark, thanks for responding. You might be right that it is more difficult to determine ideology or doctrine with religious associations than others, but I would think diverse views within organizations does not track a religious/secular divide. The question is whether it is usually easy to determine that a ground is not religious. I think most of the time it is (for example the initial decision that the plaintiff's position was no longer available in the H-T case was not religious and the contention that the plaintiff violated the religion by bringing the suit was religious. I agree that Establishment Clause costs would be implicated if the Court resolved a doctrinal issue that was not easy and deference is appropriate on such issues.I think deference (but not slavish acquiescence) is also appropriate with secular (but not business associations (think of the Boy Scouts case).
As to your point about pretext: I agree that the Court will not allow churches to pretextually claim that non-ministerial employees are ministerial and that is why Thomas concurred. But I see no willingness by the Court to entertain pretext claims when a church fires someone who is a minister. I think the Court made that point clear in its conclusion.
Well, Steve, it's very possible that my judgment is warped by an eagerness to see Scalia's colleagues pull Smith apart. What scares me, however, has been the readiness of liberals (as well as conservatives) to embrace neutrality as the principle for dealing with religion. (I realize that you make clear there would remain separate Free Exercise territory if the Court adopted your "freedom of association" approach.) I'm just old-fashioned in wanting to combine considerable deference to religion on Free Exercise grounds and a robust Establishment wall. I realize that the Court is taking that wall down, most recently via the tawdry means of denying standing. But at least H-T begins to return to the judiciary the determination of Free Exercise standards, rather than throwing all but the most obvious violations into the political arena.