Bench Memos

Obama DOJ Picks a Fight Against Religious Freedom

On the Supreme Court’s docket this coming term is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In the ruling under review, a Sixth Circuit panel affirmed that the “ministerial exception” to employment-law litigation was “rooted in the First Amendment’s guarantees of religious freedom,” but held that a church’s firing of a teacher did not fall within the scope of the ministerial exception.

The federal courts of appeals uniformly recognize a ministerial exception that extends beyond formally ordained pastors, but they divide on the outer boundaries of who is covered by the ministerial exception. Noting this conflict over the scope of the ministerial exception, the church—represented by the excellent lawyers at the Becket Fund for Religious Liberty— successfully petitioned for Supreme Court review on this question:

Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

As law professor Rick Garnett wrote about the Court’s grant of review, “The question in the Hosanna-Tabor case is not so much whether the exception exists—it does, and it should—as how it should be understood and applied.”

But two weeks ago, the Department of Justice filed an opposition brief that dramatically raises the stakes in Hosanna-Tabor. Rather than simply arguing that the ministerial exception should not extend to the teacher under the facts of this case, DOJ’s brief disputes the general existence of the ministerial exception. (It instead acknowledges only that the Establishment Clause might bar a court order reinstating a minister or litigation that requires a court to resolve a dispute over religious doctrine. See Brief at 32-36. It opposes recognition of any “prophylactic categorical exemption,” and argues, only as a fallback, that if the Court nonetheless recognizes such an exemption, the exemption should be very narrowly limited to those employees who perform “exclusively religious functions.” See Brief at 48-51.)

DOJ’s position—which is even more hostile to the ministerial exemption than the amicus brief filed by Americans United for Separation of Church and State and the ACLU—thus threatens to expose churches and other religious institutions to a broad array of employment-discrimination claims that the ministerial-exception has long shielded them from.

It’s worth noting that DOJ’s aggressive stance puts it sharply at odds with its usual supporters on the religious Left (as well as with many other religious groups). Among the religious organizations that have filed amicus briefs in support of the church in this case—and that are asking the Court to clarify that the ministerial exception has expansive bounds—are the Episcopal Church, the Presybterian Church (U.S.A.), the United Methodist Church, the United Church of Christ, the Evangelical Lutheran Church in America, the American Jewish Committee, and the Union for Reform Judaism. (A full list of amici, with links to their briefs, is available on SCOTUSblog’s case page.)

DOJ’s decision to pick a fight with the religious Left on the existence of the ministerial exception (rather than simply arguing that the scope of the ministerial exception doesn’t extend to the employee at issue) stands in striking contrast to its shameless pandering to gay and lesbian groups on Defense of Marriage Act and Don’t Ask, Don’t Tell litigation. I guess that we can tell who has real clout with the Obama administration and whom it instead opportunistically exploits for political cover.


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