Today, the Supreme Court agreed to hear what I believe is probably among its most significant religious-freedom cases in decades. The case is called Hosanna Tabor Church v. EEOC, and it involves the so-called “ministerial exception.” (You can learn more here, at the Religion Clause blog.)
Now, the case will almost certainly be misreported, if it is even noticed, in major media outlets. True, it does not involve what’s become the usual stuff of the Court’s church-state caselaw: prayer at football games, war-memorial crosses in the desert, manger scenes and Ten Commandments monuments in public parks. Nevertheless, this case is huge, and at its heart it is about what really matters.
The question in the case is whether antidiscrimination laws — like, for example, the Americans with Disabilities Act — allow courts to review hiring and firing decisions involving “ministerial employees.” In this particular case, a lower federal court had ruled that parochial-school teachers who teach primarily secular subjects are not “ministerial employees” and therefore are covered by the Act.
The Supreme Court should reverse this decision. Although there are many difficult questions to be asked, and many fine lines to be drawn, when it comes to interpreting and applying the First Amendment’s religious-freedom guarantees, it cannot be the role of secular government to second-guess the decisions of religious communities and institutions about who should be their ministers, leaders, and teachers, any more than they should review their decisions about the content of religious doctrines. To be sure, not every employee of a religious institution is a “ministerial employee,” and religious institutions, like all employers, have many legal obligations to their employees. The point is not that religious institutions and employees are “above the law” but rather that there are some questions — such as, who should be this religious community’s minister? — that our Constitution’s First Amendment does not allow secular government to answer.
— Richard W. Garnett is a professor of law and associate dean at Notre Dame Law School.