Cases at the U.S. Supreme Court often involve a collision of competing values, such as Fourth Amendment cases where the right to privacy runs headfirst into the ability of police to acquire relevant inculpatory evidence. Cases in which important values clash are some of the most difficult for the Court to decide and the public to understand.
One of the most interesting cases of this Supreme Court term is Hosanna-Tabor Church v. EEOC, No. 10-553, because it pits the right of religious freedom versus workplace discrimination. In Hosanna the Court is asked to decide the scope of the “ministerial” exception, which is shorthand for a religious institution’s freedom to choose its clergy free from being sued in court for discrimination. The exception allows, for example, the Catholic church to hire only male priests even though most businesses could not hire an only male workforce without being haled into court.
The resolution of Hosanna presents the Court with quite the dilemma. If the ministerial exception is too broad, religious institutions can hire or fire people for discriminatory purposes based on the flimsiest of religious grounds. But if the exception is too broad, religious institutions lose the ability to hire clergy and teachers who are faithful to the religion, and courts would be drug into all sorts of debates over religious doctrine.
I don’t normally read amicus briefs filed in Supreme Court because, to be honest, many of them present little more than a rehashing of the merits briefs, or, they are so ideologically one-sided as to not be taken seriously. But I read one this weekend in the Hosanna case that I thought was worthy of mention because: a) it was well-written; b) it was prepared by a legal organization I happen to be a member of; and c) it provided solid reasons why the Court should err on the side of a broad ministerial exception and religious freedom.
The brief was filed on behalf of Professor Eugene Volokh, and several Christian churches and organizations. You can find the brief here.
Here is the summary of the argument from the brief.
This case is about the separation of church and state, an arrangement that is sometimes misunderstood and whose scope is debated, but which is nevertheless a critical dimension of the religious freedom reflected in, and protected by, the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism and the project of protecting political freedom by marking boundaries to the power of government have been assisted by the principled commitment to church-state separation, correctly understood. A community that respects—as ours does—both the importance of, and the distinction between, the spheres of political and religious authority is one in which the fundamental rights of all are more secure; a government that acknowledges this distinction, and the limits to its own reach, is one that will more consistently protect and vindicate the liberties of both individuals and institutions.
As we describe in this brief, the religious freedom-protecting principle of church-state separation—from the time of Becket to Blackstone, to Benjamin Franklin, to today—has long meant, among other things, that religious communities and institutions enjoy meaningful autonomy and independence with respect to their governance, teachings, and doctrines. This autonomy has been recognized and vindicated in a long line and wide array of this Court’s decisions, and is entirely consistent with the appropriate exercise of the civil authorities’ regulatory powers.
The “ministerial exception,” at issue in this case, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Reasonably constructed and applied, the ministerial exception not only helps civil decision-makers to avoid becoming entangled in essentially religious questions; it also, and even more importantly, protects the fundamental freedom of religious communities to educate and form their members. Although this may prevent individuals in some cases from suing for discrimination, it rests on the overriding principle that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church state separation puts beyond the law‘s corrective reach. The civil authority lacks “competence” to intervene in such matters, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdictional power.
We propose an approach that is appropriately protective of the vital interests and values that are at stake. As we explain, the scope and application of the ministerial exception should be animated and guided by its purposes, by our historical experiences with disputes over the selection of religious leaders, and by the practical realities of litigation. The proposed approach is significantly, but not absolutely, deferential to religious organizations’ characterization of their employees’ duties as ministerial. Given our country‘s religious diversity, the wide variety of religious organizations and institutions, and the complexity of the modern regulatory state, a one-size fits-all rule is neither necessary nor appropriate. In this case, the Court need not identify with precision or finality the exception‘s outer boundaries.
This case should be a straightforward and simple one, as it involves, without question, an employment position that is ministerial. Under the presumptive-deference approach we propose, a “called” Lutheran teacher with religious-education duties in a mission-oriented school integrating faith and learning is easily covered by the ministerial exception. It should be remembered that at any point in time any given religious community is a mere generation away from extinction, and that teachers in religious schools are commonly on the front line of conveying the faith to children and forming them morally. Given our nation‘s deeply rooted commitments to religious freedom and church-state separation, an employment-related lawsuit in a civil court is not a permissible vehicle for second-guessing a religious community’s decision about who should be responsible for keeping the next generation.