Bench Memos

The WSJ Nails It on Hosanna-Tabor

Today, the editors of the Wall Street Journal succinctly and helpfully cut through the distractions to the heart of the matter on the Hosanna-Tabor Supreme Court case:

Most debates over church-state separation deal with such peripheral issues as saying the pledge of allegiance in class. This case goes directly to the core of what Americans have understood about religious freedom for centuries.

Exactly. Indeed, Justice Sotomayor, when she was on the Second Circuit, recognized as much, and wrote in one case (which the WSJ op-ed quotes):

Federal court entanglement in matters as fundamental as a religious institution’s selection or dismissal of its spiritual leaders risks an unconstitutional ‘trespass. . . on the most spiritually intimate grounds of a religious community’s existence.’

Again, exactly. It is tempting, but mistaken, to imagine that we can safely allow litigants to harness secular state power in support of their complaints against their churches and their churches’ teachings. We should not kid ourselves — this is what the government’s position (and, sadly, that of several legal scholars and commentators) against the ministerial exception entails.

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


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