Bench Memos

Michael McConnell on Hosanna-Tabor

Stanford law professor Michael W. McConnell, the leading constitutional scholar on religious liberty, has a superb op-ed in the Wall Street Journal on the Hosanna-Tabor case being argued this morning in the Supreme Court. The case initially presented a dispute over the scope of the constitutionally driven “ministerial exception” to employment-discrimination laws. But, as I’ve discussed, the Obama administration, to the great surprise and consternation of its allies on the religious Left, dramatically raised the stakes in the case by disputing the very existence of the ministerial exception. As McConnell (who has also submitted an amicus brief in the case) puts it, the Obama administration is thereby “invit[ing] the Supreme Court to open a new front in the culture wars.”

Here is an extended excerpt:

[T]he Obama Justice Department has now asked the court to disavow the ministerial exception altogether. This would mean that, in every future case, a court—and not the church—would decide whether the church’s reasons for firing or not hiring a minister were good enough.

But the government, including the judiciary, is not entitled under the First Amendment to decide what qualifications a minister should have, or to weigh religious considerations against others. Is a secular court to decide, for example, whether confining Catholic priests or Orthodox rabbis to males is a correct interpretation of scripture, or merely a vestige of outmoded and stereotypical bias?

James Madison famously declared that the civil magistrate is not a “competent Judge of Religious truth.” Yet every discrimination claim about the hiring of a minister necessarily comes down to the question of whether the church had a bona fide religious reason for its decision. That places the courts squarely in the business of adjudicating the validity of a church’s claims about its own religious practice.

The Justice Department’s brief grudgingly concedes that there may be an exception for employees performing “exclusively religious functions,” but this is an illusory protection. Every church officer—even the pope—performs at least some nonreligious administrative duties. If the government’s position were accepted, the courts would be embroiled in disputes about the selection of clergy at all levels and in every denomination. This would be a radical reversal of our nation’s long constitutional tradition.…

When the First Amendment declared that “Congress shall make no law respecting an establishment of religion,” it meant that churches would support themselves and control themselves. And the separation of church and state is a two-way street: It protects the autonomy of religious institutions from governmental interference no less than it prevents advancement of religion by government power.

Addendum: I see that the subheadline that WSJ attaches to McConnell’s op-ed states, “The Supreme Court weighs whether the feds can decide which church employees are clergy and which aren’t.” But that subheadline misstates what is at issue. There is no dispute that the existence of a ministerial exception requires that the courts determine who falls within the exception and who doesn’t.