Hosanna-Tabor

Prof. Rick Garnett makes a few points about the Court's unanimous opinion in Hosanna-Tabor:

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.

In Hosanna-Tabor, Chief Justice Roberts, writing for a unanimous Court, upheld the ministerial exception under both the Free Exercise Clause and the Establishment Clause.

Here is how Chief Justice Roberts explained the holding:  

  "The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own." (p.9)

 

Here are a few questions to ponder:

1. The Court says the ministerial exception is recognized by both the Free Exercise Clause and the Establishment Clause: "The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own." (p.9)

First, a Free Exercise question--assuming that the ADA is a law of general applicability, why doesn't Smith foreclose the Free Exercise claim in this case? See p. 15: "But a church's selection of its ministers is unlike an individual's ingestion of peyote: Smith involved government of only outward physical acts." How is ingesting peyote (or drinking communion wine) as part of a communal religious service an "outward physical act" and an employment decision affecting an employee's livelihood is not? Is selection and control of those who will minister to the faithful "strictly ecclesiastical?" Why isn't the nature of the religious ritual (wine or peyote as a communal ritual) strictly ecclesiastical?

Second, the EC issue. What principle of the EC is at stake here? Is it an inhibiting entanglement for government to decide who can engage in religious ministry and teaching of the faith? Is it the flip side of a law that said  Church authorities have the power to appoint and remove government officials?

2. Who is a minister under the doctrine? Perich was a "called minister" as opposed to a lay teacher. Suppose the school fired a "lay" teacher with exactly the same duties as Perich. Would the ministerial exception foreclose an employment discrimination action brought by the lay teacher?

What about at a school like Lincoln Christian, which is a non-denominational Christian school with the mission to "teach about God's world from God's Word."  There are no "called" ministers at LCS, because the school does not ordain teachers. But all teachers at LCS are required to affirm a doctrinal statement and all classes (including so-called "secular" classes like math and history) are designed to be taught from a biblical perspective. Are all LCS teachers "ministers?" None of them? Some of them? Which ones?

3. Suppose a religious school takes the position that all of its employees--including secretaries and janitors--are ministers in the sense that their job, no matter how humble, is to advance the school's ministry of transmitting God's truth to the next generation of believers. Who is covered?

4. What is Justice Thomas's view of who qualifies as a minister? "The question whether an employee is a minister is itself religious in nature...." Thus, the courts should "defer to a religious organization's good-faith understanding of who qualifies as a minister."

5. Now consider Alito and Kagan's view: "The ministerial exception "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 the faith."

What about a janitor at a Christian school? Is he a minister? Did not Jesus wash the disciples' feet and tell them they should wash one another's feet as an example of humility and love?


Justice Alito's concurring opinion (with Kagan)  provided some additional insight as to who is a minister:

   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. p.2

Although this is only a concurring opinion, I think it provides a great deal of insight into the purpose and the scope of the ministerial exception.

If you are counseling religious ministries, such as Lincoln Christian School, I would suggest adopting some kind of doctrinal statement or policy that makes clear that all teachers are expected to lead children in prayer and worship and to teach children about the faith and how God’s Word helps us understand everything about God’s World, including every subject taught at the school. God’s World is not a secular world; it is the world God created and his Word is central to our understanding of the nature of this world and how we are to live in this world.

6. For example, does the Catholic Church violate the equal employment rights of women when it adopts the practice of the all-male priesthood? Stanley Fish puts the question this way:

“Were the state to intervene and declare the tradition of an all-male priesthood and the doctrine underlying it unconstitutional, it would be forcing the church to conform to secular norms in violation both of the free exercise clause (the right of a religion to be governed by its own tenets would be curtailed) and the establishment clause (the state would in effect have taken over the management of the church by dictating its hiring practices).”
 

But what of a Math teacher at a conservative Christian high school? Or the janitor? Who decides what functions are Church ministries? Is this a secular decision for the courts or the legislature? Or a theological decision which the state is forbidden to make under the EC?


7. Are law student leader's of the Christian Legal Society ministers covered by the exception? If so, can government law school's insist that they allow "all comers" to seek leadership positions as a requirement for recognition in the law school student group forum?