Clarity and unanimity have not exactly been the hallmarks of the Supreme Court’s efforts to interpret and enforce the Constitution’s religion clauses. In the two Ten Commandments cases decided in 2005, the nine justices managed to deliver ten opinions, with two different five-justice majorities announcing, on the same day, that a display of the Ten Commandments in Texas could stay but another one in Kentucky had to go. And those occasional decisions employing crisp reasoning to reach clear and correct resolutions—the landmark 2002 school choice ruling Zelman v. Simmons-Harris, for example—often rest on precarious, vulnerable 5–4 footings.
Wholly apart from its welcome result, then, the court’s unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC stands out. Speaking for all nine justices, Chief Justice John Roberts succinctly yet powerfully affirmed that the First Amendment protects the right of a religious group to “control . . . the selection of those who will personify its beliefs” and to “shape its own faith and mission through its appointments.” The Constitution’s free exercise guarantee and no-establishment rule work together—not, as is sometimes thought, at cross-purposes—to protect religious groups’ freedom by limiting the power of governments over the relationship between religious communities and their teachers, leaders, and ministers.
It is true, as some commentators disappointed by the outcome of Hosanna-Tabor have insisted, that the unanimous court went no further than was necessary to resolve the particular case before them. It is also true, though, that the foundation for this narrow ruling is a rich, compelling, and timely vindication of a dimension of religious freedom that is often overlooked or unappreciated.
The case emerged from a dispute between a small school in suburban Detroit, operated by the Hosanna-Tabor Evangelical Lutheran Church, and a fourth-grade teacher—and commissioned minister—named Cheryl Perich. Perich was fired by the congregation and her “call” was rescinded after she threatened to bring legal action against the church under the disability-discrimination laws.
The details of the story are complicated, but the nutshell version is that she and the school’s administrators disagreed over her readiness to return to teaching after a disability leave, and she refused to resign when she was told that her position had been filled by another teacher. In addition to teaching math, science, gym, and art, she also taught religion classes, led the students in prayer and devotions, and was held out by the congregation, to students and to the world, as having responded to God’s call and embraced a religious vocation. To the lawyers for the Equal Employment Opportunity Commission, she was a victim of unlawful retaliation, punished for threatening to vindicate her legal rights; to those representing the church, however, she was attempting to submit a question of religious discipline, teaching, and authority to the secular courts.
For decades, state and lower federal courts have applied to employment-discrimination laws a “ministerial exception.” The precise contours, reach, and constitutional bases for this exception have been given slightly varying formulations, but the basic idea is clear: The First Amendment does not permit American courts to interfere with religious institutions’ decisions about who should and should not serve as a “minister.”
Citing this doctrine, the federal trial court in Ms. Perich’s case ruled that the lawsuit could not proceed, but the Court of Appeals for the Sixth Circuit reversed its decision. Although the appeals court conceded the existence and constitutional foundations of a ministerial exception, it embraced an approach to the problem of identifying “ministers” that, as the Chief Justice put it, relied more on a “stopwatch,” than on a qualitative assessment of her role. Because she spent more than half of her time on what the court regarded as “secular” activities, the court insisted that she was not a minister for purposes of the ministerial exception.
The court of appeals was certainly right to recognize that the ministerial exception does not answer every question about its application. It is one thing to say that the First Amendment does not allow government authorities to substitute the norms of antidiscrimination law for the judgments of religious communities about who will be their ministers; it is another to find the line separating these communities’ ministers from their other employees. Some cases will be hard.
But not this one. The justices, again, were unanimous in their conclusion that Perich was a minister for purposes of the First Amendment and that “both religion clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.” In a concurring opinion, Justice Clarence Thomas emphasized that because “the religion clauses guarantee religious organizations autonomy in matters of internal governance,” civil courts should therefore “defer to a religious organization’s good-faith understanding of who qualifies as a minister.”
In a similar way, Justice Samuel Alito, joined in his concurring opinion by Justice Elena Kagan, also wrote a concurring opinion, and underscored the point that “formal ordination and designation” cannot, given our country’s religious pluralism, be a requirement of the rule. The exception must be tailored to its purpose, namely, to assure the freedom of religious groups to choose the personnel who are essential to the performance of “key religious activities,” which include not only worship and ritual but “the critical process of communicating the faith.”
Several things are worth emphasizing about the court’s decision, not only because they are relevant to the case’s impact and implications, but also because of what they say about the state of constitutional law with respect to religious freedom more generally.
First, while it was noteworthy in this particular case that the employee did have a religious “call,” it is clear that the case’s reasoning is not limited to commissioned ministers and ordained clergy. The justices understand that the exception applies to all who participate meaningfully in the religious mission of the entity and “personify” the community’s mission. There will be hard cases, to be sure, but they cannot be decided simply by asking if the employee in question has a particular title or degree, any more than they can be decided with a stopwatch.
Second, the chief justice’s unanimous opinion provided a valuable history lesson. American thinking and constitutional doctrine has for decades been misshaped as a result of the constitutionalization of an incomplete narrative about the nation’s founding and the separation of church and state. This narrative misrepresents separation as requiring what Richard John Neuhaus famously called a “naked public square” and as regulating the religiosity of civil society, when in fact it is an ancient—the chief justice reminded us of the concern in the Magna Carta for the freedom of the church—though contested arrangement in which religious and political authorities are distinguished, with the freedom of the former serving as a check on the latter. Our First Amendment, Roberts explained, constitutionalizes this arrangement: “The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of groups to select their own.”
Third, and most important, the court made it crystal-clear that the ministerial exception reflects and vindicates the affirmative right of religious communities to select their own teachers and teachings. At times, courts have used the language of abstention, or prudential modesty, in cases threatening to entangle religious and political authority. It is true that there are lots of good, practical reasons for political decision makers and civil courts to avoid making “religious” decisions. But this is not why the ministerial exception exists. It exists not because decisions about selecting ministers are tricky but because religious communities have a First Amendment right to make them.
Indeed, the term “ministerial exception” does not really fit. It suggests a carve-out, or a concession. It is true, of course, that our constitutional commitment to religious liberty means (among other things) that legislatures should sometimes stay their hands and forgo applying regulations to conduct that would otherwise be within their jurisdiction. Such accommodations show respect for religious believers and often make life easier for regulators. However, the real reason a secular court cannot tell the First Baptist Church that it unlawfully failed to hire Mr. Smith to be its minister is not because the government has made a concession but because the government is constrained. It might look like the government is generously granting an exception from its generally applicable and valid employment-discrimination laws, but in fact it is acknowledging a limit, imposed by the First Amendment, on the reach of its regulatory authority.
Hosanna-Tabor is not the last word in matters of ministers’ employment, much less in issues of religious freedom. The scope and details of the ministerial exception will have to be worked out in a range of contexts and with respect to a variety of employees. Nor does the unanimity and clarity of the decision guarantee, or even suggest, that the justices’ divisions and disagreements over their role in policing the relation between faith and politics, and between religious and political authority, are behind us. Nevertheless, the ruling affirms a point that is foundational in a free society: There are things that are not Caesar’s. And that is no small thing.
Richard W. Garnett is professor of law and associate dean at the University of Notre Dame.