Bench Memos

An Encouraging Morning for Religious Freedom

Early reports from friends and colleagues who attended this morning’s oral argument in the Hosanna-Tabor case are encouraging. It appears that the justices were near-united in treating the administration’s surprising and extremist position as, well, surprising and extremist. Three cheers for Prof. Doug Laycock and the Becket Fund’s whole team of merry warriors for religious liberty.

I was not present, but what I’ve heard makes me think that at least a majority of the justices will not only confirm that a ministerial exception is required by the Constitution, but will also reject the wooden, “count up the hours” approach taken by the Sixth Circuit to deciding the “who counts as a minister?” question. The Court recognizes, it appears, that “ministers” often spend time doing administrative chores, and this fact of life does not change the basic character of their vocation. This morning, I gather that the solicitor general argued that employees who have any important administrative functions are not ministers. To which the chief justice responded, “The Pope is a head of state and has important administrative functions, so he’s not a minister?”

Exactly. The better approach is to defer to religious institutions’ understandings of their employees’ functions and to take a more qualitative approach, considering a variety of factors, always with a focus on the doctrine’s goal, namely, protecting religious freedom by avoiding secular second-guessing and supervision over religious matters.

It is, again, good news that the Court seems to be on track in Hosanna-Tabor. Of course, as all Court-watchers know, a lot can happen between oral argument and the handing-down of an opinion, and oral arguments do not always reveal where the justices are or are going. Assuming, though, that the ministerial-exception is going to be affirmed, there remains the concern — and this is a concern that should be widely shared, on the left and the right alike — that the administration’s position in this case signals a serious and worrisome tone-deafness (or worse) when it comes to religious freedom.

— Richard W. Garnett is professor of law and associate dean at Notre Dame Law School.

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