Wednesday, January 11, 2012

Victory for Free Exercise Clause - Supreme Court Unanimously Upholds "Ministerial Exception" to Employment Discrimination Laws [UPDATED]

From the blog of The Federalist Society:
The Supreme Court just published its decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case regarding the "ministerial exception" in employment discrimination law. As FedSocBlog previously noted, for 40 years, lower courts have held that the First Amendment forbids the government from deciding who may be a religious minister--despite the fact that federal statutes outlawing employment discrimination based on race, sex, age, and disability contain no express exception.

In its decision, the Court unanimously upheld the ministerial exception in the case at hand. SCOTUS thus ruled against the position of the Obama Justice Department, which had asked the court to disavow the ministerial exception altogether.


Justices Thomas and Alito each wrote concurring opinions. Although I generally find myself in agreement with the constitutional philosophy espoused by Justice Thomas, in this instance I find that I am most in agreement with the concurrence authored by Justice Alito, in which he was joined by ... Justice Kagan of all people:
I join the Court’s opinion, but I write separately to clarify my understanding of the significance of formal ordination and designation as a “minister” in determining whether an “employee” of a religious group falls within the so-called “ministerial” exception. 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. Instead, courts should focus on the function performed by persons who work for religious bodies.

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 tothe 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.


Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance. Different religions will have different views on exactly what qualifies as an important religious position, but it is nonetheless possible to identify a general category of “employees” whose functions are essential to the independence of practically all religious groups. These include those who serve in positions of leadership, those who perform important functions in worship services and in the performance of religious ceremonies and rituals, and those who are entrusted with teaching and conveying the tenets of the faith to the next generation.

Applying the protection of the First Amendment to roles of religious leadership, worship, ritual, and expression focuses on the objective functions that are important for the autonomy of any religious group, regardless of its beliefs. As we have recognized in a similar context,“[f]orcing a group to accept certain members may impair [its ability] to express those views, and only those views, that it intends to express.” Boy Scouts of America v. Dale, 530 U. S. 640, 648 (2000). That principle applies with special force with respect to religious groups, whose very existence is dedicated to the collective expression and propagation of shared religious ideals. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 882 (1990) (noting that the constitutional interest in freedom of association may be “reinforced by Free Exercise Clause concerns”). As the Court notes, the First Amendment “gives special solicitude to the rights of religious organizations,” ante, at 14, but our expressive-association cases are nevertheless useful in pointing out what those essential rights are. Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.

When it comes to the expression and inculcation of religious doctrine, there can be no doubt that the messenger matters. Religious teachings cover the gamut from moral conduct to metaphysical truth, and both the content and credibility of a religion’s message depend vitally on the character and conduct of its teachers. A religion cannot depend on someone to be an effective advocate for its religious vision if that person’s conduct fails to live up to the religious precepts that he or she espouses. For this reason, a religious body’s right to self-governance must include the ability to select, and to be selective about, those who will serve as the very “embodiment of its message” and “its voice to the faithful.” Petruska v. Gannon Univ., 462 F. 3d 294, 306 (CA3 2006). A religious body’s control over such “employees” is an essential component of its freedom to speak in its own voice, both to its own members and to the outside world...
There's more to Justice Alito's excellent concurrence (again, which Obama appointee Justice Kagan joined), which you definitely should read in full, along with the majority opinion authored by Chief Justice Roberts.

At National Review, Notre Dame law professor Rick Garnett offers his take on the ruling:
... In today’s opinion, the Supreme Court affirmed what the overwhelming majority of lower federal courts and state courts in the United States have already ruled, and rejected the well-outside-the-mainstream view advanced by the Obama administration’s lawyers. This last point is worth emphasizing: The administration’s lawyers had pressed an extreme view — one that no other court, and few scholars and experts, had embraced — and they convinced no one.

I co-authored an amicus curiae brief in support of the religious school, on behalf of a diverse array of religious organizations and my friend, First Amendment expert Prof. Eugene Volokh. I was delighted by the extent to which the chief justice’s opinion is consistent with the positions advanced in that brief. He and his colleagues answered several key questions clearly and correctly: First, they affirmed that the “ministerial exception” — which limits the government’s role in selecting religious communities’ ministers, leaders, and teachers — is required by the First Amendment. Next, they rejected a crabbed approach to that exception, which would limit its reach only to ordained clergy or to ministers who spend a majority of their time on “religious” activities. And they noted that the ministerial exception constrains the reach of government with respect to religious communities’ decisions about ministers whether or not the employment decision in question was motivated or required by theological reasons.

This case matters for many reasons, but especially because it reminds us all that the separation of church and state — when it is properly understood — is an important mechanism for protecting the religious liberty of all — believers and nonbelievers alike. Church-state separation is often misunderstood and seen as an anti-religious program, or as requiring that “religion” stay out of politics or public life. But this is not the point of church-state separation at all. The idea is to constrain government regulation, not religious expression and practice. Separation is an arrangement that protects religious authorities, institutions, and communities from unjustified interference by governments...
Make no mistake: the Obama Administration's war on faith, which began almost immediately from the moment he took office 3 years ago, was dealt a HUGE blow today. A blow from which we can hope the secularists will not recover.

The Catholic League: "HUGE DEFEAT FOR OBAMA".

UPDATE #4 (12 January)
From the Becket Fund for Religious Liberty:
Today the Supreme Court decided its most important religious liberty case in twenty years, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. The government lost 9-nothing as the Court unanimously rejected its narrow view of religious liberty as “extreme,” “untenable” and “remarkable.”

The unanimous decision adopted the Becket Fund’s arguments, saying that religious groups should be free from government interference when they choose their leaders. The church, Hosanna-Tabor, was represented by The Becket Fund for Religious Liberty and Professor Douglas Laycock, University of Virginia Law School. For years, churches have relied on a “ministerial exception” which protects them from employment discrimination lawsuits by their ministers.

“The message of today’s opinion is clear: The government can’t tell a church who should be teaching its religious message,” said Luke Goodrich, Deputy National Litigation Director at The Becket Fund for Religious Liberty. “This is a huge victory for religious freedom and a rebuke to the government, which was trying to regulate how churches select their ministers.”

The Court rejected the government’s extremely narrow understanding of the constitutional protection for religious liberty, stating: “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 a huge win for religious liberty,” said Professor Doug Laycock. “The Court has unanimously confirmed the right of churches to select their own ministers and religious leaders.”

“It is amazing when a church from Redford, Michigan stands up for its rights and ends up going all the way to the Supreme Court,” said Reverend Paul Undlin of Hosanna Tabor. “Praise God for giving the Justices the wisdom to uphold the religious freedom enshrined in our Constitution!”

The Court found that the ministerial exception is rooted in both Religion Clauses—the Free Exercise and Establishment Clauses. Justice Thomas filed a concurring opinion. Justice Alito joined by Justice Kagan also filed a concurring opinion.

“For six years I fought the government, sacrificing my practice and livelihood because I believed the government had no right to choose teachers for our small school,” says Deano Ware, local attorney for the church. “In the end, we showed up at the steps of the Supreme Court with our sling and stone, in the company of the Becket Fund and the greater community of faith, fought the government and won. This is a great day for all Americans of every of faith and all freedom-loving citizens.”

The Becket Fund for Religious Liberty is a non-profit, public-interest law firm dedicated to protecting the free expression of all religious traditions. The Becket Fund has a 17-year history of defending religious liberty for people of all faiths. Its attorneys are recognized as experts in the field of church-state law.

UPDATE #5 (12 January)

Thanks to Catholic Cartoon Blog.

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At 1/11/2012 5:03 PM, Blogger Mary De Voe said...

Saint Thomas More is beaming


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