Bench Memos

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Michael Paulsen on Hosanna-Tabor


Law professor Michael Stokes Paulsen has an excellent Public Discourse essay—“Hosanna in the Highest!”—on the Supreme Court’s unanimous ruling in Hosanna-Tabor. As Paulsen puts it:

The decision in Hosanna-Tabor is an occasion for celebration, for dancing in the streets (or, for some Baptists, simply praising the Lord). Essentially everything the Court said was right. And every right thing it said is important—a point brought home by considering the consequences if the Court had ruled the opposite way, as the Obama administration had urged and as many feared possible.

Here’s one noteworthy excerpt:

[T]he rule that Hosanna-Tabor embraces is a broad, principled rule of First Amendment constitutional law. The “ministerial exception” label really ought to be discarded, for it is now something of a misnomer, a relic of the pre-Hosanna-Tabor, lower court-developed doctrinal approach. Rather, the right should be understood as the “religious autonomy right”—an “exception” to nothing but a principle of its own.… 

The principle established by the First Amendment is that a religious group has the “right to shape its own faith and mission through its appointments” and thus has plenary “control over the selection of those who will personify [its] beliefs.” This includes teachers, lay leaders, and persons who perform a mix of religious and seemingly “secular” functions. The right extends to those whom a religious community, operating under its own system of rules, designates as central to its religious mission and identity. The Court’s one-word descriptor perhaps says it best: those persons that the community identifies as personifying its religious identity….

This interpretation has important consequences beyond direct employment regulation through anti-discrimination laws. Student religious groups, at state university campuses and at public schools, are religious communities, too. So are para-church ministries and many other types of religious organizations. They, too, have the right to control the selection of those who personify their beliefs, and to shape their own faith and mission through their decisions.

After oral argument, it’s worth recalling, there appeared little prospect of a clear ruling, much less a unanimous one. Paulsen properly credits Chief Justice Roberts:

The achievement is, in significant part, that of Chief Justice John Roberts, a masterful legal craftsman, whose skills as a legal advocate and persuader—forged by years as a leading Supreme Court practitioner, brief writer, and oral advocate—enabled him to build a unanimous Court in support of a dramatic defense of religious liberty, in an important context. He also left a trail of wonderful bread crumbs for future possible decisions. If not picked off by crows, Hosanna-Tabor’s statements of principle may become even more important than its specific holding. 


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