Bench Memos

A Win for Religious Freedom

Sometimes the news from 1 First Street is really, really good. Today, the Supreme Court issued a unanimous ruling in what some observers (ahem) had called one of the most important church-state decisions in decades. Chief Justice Roberts’s opinion in Hosanna-Tabor Church v. EEOC vindicates clearly and strongly a crucial constitutional principle: The First Amendment protects religious liberty by forbidding governments from second-guessing religious communities’ decisions about who should be their teachers, leaders, and ministers. The chief justice’s opinion for the Court is well-reasoned, welcome, and correct. Indeed, I think it is one of his best yet.

As readers probably know, the Hosanna-Tabor case involved a lawsuit brought by a former teacher at an Evangelical Lutheran grade school in Michigan. The question for the Court was whether the Constitution’s protections for religious liberty allow secular courts to consider lawsuits brought by “ministers” against religious institutions, organizations, and communities. A long line of cases makes clear that it violates both the separation of church and state and the freedom of religious believers and communities for the government to assume the right to decide whether a minister was appropriately hired or fired. As courts across the country have consistently held, such decisions are outside the power of secular governments to review. In today’s opinion, the Supreme Court affirmed what the overwhelming majority of lower federal courts and state courts in the United States have already ruled, and rejected the well-outside-the-mainstream view advanced by the Obama administration’s lawyers. This last point is worth emphasizing: The administration’s lawyers had pressed an extreme view — one that no other court, and few scholars and experts, had embraced — and they convinced no one.

I co-authored an amicus curiae brief in support of the religious school, on behalf of a diverse array of religious organizations and my friend, First Amendment expert Prof. Eugene Volokh. I was delighted by the extent to which the chief justice’s opinion is consistent with the positions advanced in that brief. He and his colleagues answered several key questions clearly and correctly: First, they affirmed that the “ministerial exception” — which limits the government’s role in selecting religious communities’ ministers, leaders, and teachers — is required by the First Amendment. Next, they rejected a crabbed approach to that exception, which would limit its reach only to ordained clergy or to ministers who spend a majority of their time on “religious” activities. And they noted that the ministerial exception constrains the reach of government with respect to religious communities’ decisions about ministers whether or not the employment decision in question was motivated or required by theological reasons.

This case matters for many reasons, but especially because it reminds us all that the separation of church and state — when it is properly understood — is an important mechanism for protecting the religious liberty of all — believers and nonbelievers alike. Church-state separation is often misunderstood and seen as an anti-religious program, or as requiring that “religion” stay out of politics or public life. But this is not the point of church-state separation at all. The idea is to constrain government regulation, not religious expression and practice. Separation is an arrangement that protects religious authorities, institutions, and communities from unjustified interference by governments.

Obviously, churches are not “above the law,” and sometimes they — like all of us — behave badly. However, governments are not permitted to resolve essentially religious disputes and questions. Today’s decision is a resounding win for religious liberty in America. It will be welcomed by a wide range of religious communities and traditions, and it should be embraced across the political spectrum. It is true that there are those for whom the idea that some relationships and questions are beyond the reach of the government’s anti-discrimination efforts is incomprehensible. But these objectors are mistaken. In a free society, governments are competent and powerful, but also limited, and they respect the rights and freedoms of other, non-state authorities and communities.

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


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