Bench Memos

Two Ways of Thinking about Religious Freedom

Today, on the NRO home page, my friend Jonathan Adler has a very useful preview of a Supreme Court term that could turn out to be the “most significant in decades.” Many of the big-ticket cases that Jon discusses are ones that the Court has not yet agreed to review (even though it probably will). It is worth emphasizing — as Ed Whelan and Carrie Severino have done, here at Bench Memos — that the Court will hear, during this first week of the October 2011 term, arguments in a profoundly important religious-freedom case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.

As I see it, at the end of the day, there are two ways to think about religious freedom. We can start by assuming that the government’s regulatory and police powers are plenary, and then ask whether the state can afford, without doing too much injury to its own interests, to accommodate religious believers’ and communities’ requests for accommodations, exemptions, and respect. Alternatively, we can start from the premise that government’s powers, while certainly substantial, run out at some point and that there are some questions that are beyond its authorization to answer — that there are, in other words, some “things that are not Caesar’s.”

These two ways of thinking are not always in conflict. After all, sometimes it is the case that governments do, and should, exempt religious believers and religiously motivated conduct from valid, otherwise applicable laws. It is necessary to remember, though, that not all religious-liberty claims are requests for special-purpose carve-outs from the legitimate reach of the government’s police power. In some cases — and Hosanna-Tabor presents such a case — the religious-freedom claim is that there are some matters and questions which “the separation of church and state” leaves with religious communities and institutions and to which the authority of secular authority does not extend.

The right question to ask in Hosanna-Tabor, then, is not “Would it interfere with or undermine the government’s efforts to eradicate invidious discrimination in the workplace to exclude ‘ministerial’ employees from the coverage of employment-discrimination laws?” It is, instead, “Does a government like ours, limited by a provision like our First Amendment, have the authority to second-guess a religious community’s decision — even a decision that seems wrongheaded or objectionable — about who should be its religious teacher, leader, or minister?” The answer to this latter question, I believe, is no.

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


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