Bench Memos

What’s at Stake for Religious Liberty in the Hosanna-Tabor Case

Next Wednesday, the Supreme Court hears oral argument in Hosanna-Tabor Evangelical Lutheran Church v. EEOC. As I’ve discussed, to the surprise and consternation of religious groups across the political spectrum, the Department of Justice is now arguing, for the first time, that the widely recognized “ministerial exception” to employment-discrimination laws shouldn’t exist at all.

In an op-ed, Hannah C. Smith of the Becket Fund for Religious Liberty, who represents the church in the Hosanna-Tabor case, clearly spells out how hostile the Obama administration’s position is to the autonomy of religious institutions (emphasis added):

The Supreme Court long ago recognized that government may not tell churches whom to choose as their clergy, or how to transfer power from one leader to another, or whether to reinstate a religious leader who has been found unfit by the church. Courts may not reverse decisions made by religious tribunals or choose sides in a religious controversy. And the Supreme Court has been right.

If the First Amendment means anything, it means that the government is entirely incompetent to decide matters of religious faith, doctrine and practice.

Indeed, if the “ministerial exception” did not exist, the landscape of religious life in our country would likely be vastly different. Because of the constitutional protection afforded by the “ministerial exception,” churches can lawfully select leaders and the authorized bearers of its message based on their sincerely held religious beliefs.

Catholics and Orthodox Jews can have an all-male clergy. Jews, Muslims and Hindus can base leadership decisions on ethnicity and descent. And where marital-status discrimination is prohibited, churches can “discriminate” based on celibacy.

If, as the EEOC [via DOJ] urges, the Supreme Court decides the ministerial exception should not exist at all, the floodgates open for lawsuits claiming all sorts of “discrimination” by religious institutions that heretofore had been accepted as a legitimate form of religious expression.