Is the Court Changing Its Stand on Religious Freedom?

On June 28, 2010, the Supreme Court of the United States narrowly ruled in Christian Legal Society v. Martinez that a university’s “all-comers” nondiscrimination policy trumped the right of a Christian student organization to select its leaders according to the group’s religious beliefs.   According to the Supreme Court, a Christian student group confronted with such a policy could not exclude a Muslim or atheist from leadership and had to give them the same chance to lead as a Christian.   It was “surely reasonable,” declared the Court that “the . . . educational experience is best promoted when all participants in the forum must provide equal access to all students.”

But last week- roughly 18 months later – the Supreme Court unanimously ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the Free Exercise and Establishment Clauses of the United States Constitution contain a “ministerial exception” that precludes the application of nondiscrimination statutes (such as the ADA) to claims concerning “the employment relationship between a religious institution and its ministers.”   In other words, a religious employer’s right to select its leaders trumped the state’s nondiscrimination statutes.   In its ruling, the Court waxed eloquent about the special need for religious institutions to choose their ministers according to the dictates of their faith:  

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.


So what happened between June, 2010, and January, 2012?   Did the Hosanna-Tabor court overrule Martinez?  Did it change its view regarding the importance of religious leadership for religious organizations?   The short answer is “no” and, well, “time will tell.”

What are the differences between Martinez and Hosanna-Tabor?  There are many, but the key distinction – I believe – was quite simple: The Court framed Martinez as an “access to benefits” case while it viewed the nondiscrimination statute in Hosanna-Tabor as an inescapable imposition on the school’s very existence.

In other words, the Court viewed the Christian Legal Society as trying to access on its own terms various state benefits (such as a share of student activity fees, access to empty state-owned classrooms, and space on state communications resources like bulletin boards).   If the Christian Legal Society wanted autonomy, it could simply opt out of the state benefit scheme, use alternate means to get its message out, and meet on campus through existing permissive access rules.  

Hosanna-Tabor could not, by contrast, escape the reach of nondiscrimination statutes.   If it wanted to exist at all, it would exist under the jurisdiction of the Americans with Disability Act, or of Title VII, or of the various state and local versions of these statutes.   Without a ministerial exception, the very ability of a neighborhood church to select its pastors according to the dictates of its faith would be under threat from rogue governments.   The First Amendment’s religion clauses would be essentially gutted.

The problem, however, with this distinction (which seems sensible at first glance) is that it begins to break down in the face of an ever-larger and more expansive government.   For the Christian Legal Society in Martinez, the question really was one of existence – existence in a government-dominated, government-owned community.   If one lives and works on government-owned property, is access to that property truly a “benefit?”   What if that person is paying handsomely (through tuition and fees) to live in that community?  

Off-campus we see the government assuming increasing control of a number of fields traditionally dominated by religious institutions.   In other words, it is transforming the private into the public.   Take adoption and foster care, two areas where the church’s involvement has long predated even the existence of the United States.   If the government occupies the field and exercises total regulatory authority over a child’s life, is, say, the Catholic Church’s continued involvement to be analyzed under the Free Exercise and Establishment Clauses or is the Catholic Church merely accessing a government benefit – the ability to participate in a government program?

The Hosanna-Tabor case is a welcome triumph for liberty, and it’s notable for its historical analysis and ringing, common-sense defense of religious autonomy.   But one can’t help but wonder – as the governmental leviathan continues to gorge – if our churches and religious institutions will exercise sovereignty over an ever-shrinking domain.  


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