The Corner

Hosanna in the Supreme

The Supreme Court on Wednesday issued a unanimous ruling in Hosanna-Tabor v. EEOC, a case about an employment dispute at a Lutheran school. Mark Rienzi is a professor of constitutional law at the Catholic University of America and an attorney with the Becket Fund for Religious Liberty, which represented the church at the high court. He talks about the ruling and its importance for religious-liberty jurisprudence.

KATHRYN JEAN LOPEZ: Were you surprised by the unanimous ruling?

MARK RIENZI: I think it is always somewhat surprising when all nine justices agree, particularly on an issue like religion. But there is a bedrock principle at work here that every court to hear one of these cases has agreed on: In the United States, government can’t decide who runs churches, synagogues, or other religious groups. There is a sphere of autonomy for religious organizations where the government may not trespass. The Supreme Court has recognized, like other courts before it, that there is something like a “freedom of the church.”

There was another factor at work in this case — I think the administration essentially drove the Court to a unanimous decision by taking such an aggressively narrow view of religious liberty. They took the position that the Religion Clauses of the First Amendment have nothing to do with whether religious groups get to choose their own leaders. The unanimous Court rightly rejected that approach as an “extreme position,” as “remarkable,” and as “untenable.” Unanimity in a case like this may be rare; but the government’s narrow view of religious liberty was so extreme that it seems to have brought the justices together across the usual liberal/conservative lines that divide the Court.

LOPEZ: What’s so important about the ministerial exception?

RIENZI: The ministerial exception keeps government officials from deciding who is going to preach and teach the faith for a church. Without such an exception, government bureaucrats and judges could be deciding, for example, whether the Catholic Church’s reasons for preferring male priests are legitimate, or whether a synagogue had good enough reasons for selecting a 35-year-old rabbi instead of a 60-year-old applicant. But the government has no business (and no competence) to second-guess the validity of anyone’s reasons for those types of religious decisions. If the separation of church and state means anything, it should mean that the government cannot be permitted to order religious congregations to accept particular people as pastors, preachers, or religion teachers.

LOPEZ: So how far does this exception go? Could this be dangerous, allowing for the cover-ups of crimes and unjust terminations?#more#

RIENZI: No — the decision is not dangerous at all. The Court’s opinion goes to the question of hiring and firing people with important religious functions. Covering up a crime can (and should) be illegal for anyone, including religious employees at a church. But enforcing laws against obstruction of justice or perjury would not involve the government ordering a church that it must have a particular person in the pulpit on Sunday morning. So the ministerial exception has nothing to do with those sorts of situations, and those laws will continue to be enforced as they always have.

As to terminations, the Court said that for employees with important religious functions, the Constitution requires the government to stay out of employment decisions. The Court acknowledged, of course, that anti-discrimination laws are important — but it said that the First Amendment has already made the policy judgment that the government has to stay out of the internal affairs of a church, even where a minister claims to have been unfairly terminated. The opposite approach — allowing government bureaucrats at the EEOC to order a church to accept a minister or religion teacher they do not want — would violate the Establishment Clause (because the government has no power to select ministers) and the Free Exercise Clause (because the members of the church have a right to exercise their faith how they choose). The Court was unanimous on these points.

LOPEZ: Is this a blow to the Americans with Disabilities Act?

RIENZI: No, the ADA remains as strong today as it was before the decision. All of the lower federal courts had already applied some form of the ministerial exception, and the ADA remains perfectly intact in the vast majority of cases in which it could ever be applied. All the Court acknowledged is that there is a particular sphere in which the government can’t use the ADA to dictate the hiring and firing of religious leaders.

LOPEZ: What does this mean for the Court’s 1990 Employment Division v. Smith decision?

RIENZI: Some people argue that Smith limited the scope of the use of the Free Exercise Clause to protect religious groups. At the oral argument, Justice Scalia (who wrote the Court’s opinion in Smith) strongly rejected that view, saying the case had nothing to do with the autonomy of churches. This week the rest of the Court agreed.

LOPEZ: So where does this leave the state of religious-liberty jurisprudence? Is this case more important because of what it didn’t do rather than anything it did?

RIENZI: As a whole, there are still plenty of areas of religious-liberty jurisprudence that are confused and conflicted. I think the big story of the opinion, though, is the clarity with which the unanimous Court rejected President Obama’s very narrow view of religious liberty. In a variety of situations — this case, the denial of grants to Catholic entities that refuse to participate in abortions, the HHS regulations that will soon force almost every employer to provide abortion-causing drugs to their employees — this administration has pushed a very narrow view of religious liberty. In the HHS context, for example, the administration provided a conscience clause so narrow that most religious objectors could not possibly qualify — in fact, a Catholic soup kitchen would lose the protection if it provides food to homeless atheists, Jews, or Muslims.

The Hosanna-Tabor case is the first time the Court has had a chance to consider whether the administration’s narrow view of religious freedom is correct. The fact that the unanimous Court — including his own recent appointees — so strongly rejected this view as an “extreme position” bodes well for religious liberty going forward. It certainly would have been a bad day for the First Amendment if the Court had adopted that extreme position as its own.

LOPEZ: Rick Perry talked about an Obama administration “war on religion” at a debate in New Hampshire recently. Is that fiction if two of his own Supreme Court nominees just shot him down?

RIENZI: I think a lot depends on how the administration reacts to the Court’s decision. Will the mistreatment of religious liberty by the administration continue? That depends on whether this is a teachable moment for the administration and they get the message that the Courts won’t accept this type of treatment of religion. It would be wonderful if the administration’s reaction to this case is to begin giving religious liberty the respect and protection that are required under the Constitution and federal law. Time will tell.

LOPEZ: What could the ruling yesterday mean for ongoing debates about the Department of Health and Human Services contraception mandate in the president’s new health-care law?

RIENZI: I think it will mean one of two things. Ideally, it will mean that the administration will change course, and will provide the type of sensible conscience protection that the president said he wanted when he spoke at Notre Dame a few years ago. There are plenty of religious voters who would love to see him deliver on that very public promise. If not, at the very least the Court has quite publicly rejected the administration’s narrow view of religious freedom as extreme. I expect other federal judges evaluating the government’s treatment of religious liberties will be very much aware of the Court’s resounding rejection of the administration’s approach in Hosanna-Tabor.

LOPEZ: How did you get roped into this case?

RIENZI: The Becket Fund is a non-profit lawfirm dedicated to protecting religious liberty. We saw the decision from the Sixth Circuit court of appeals in this case and we knew it was very bad for religious liberty. At the same time, we knew the case had the potential to turn into a major victory for religious freedom at the Supreme Court. So we called up the church and offered our services free of charge. The rest is history.


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