First Things RSS Feed - Richard W. Garnett

Anti-Catholic Attacks After Dobbs

Wed, 29 Jun 2022 06:00:00 -0400

In late June of 1992, just a few weeks before I entered law school, the Supreme Court issued its decision in Planned Parenthood v. Casey . In that case, a bare majority of the justices reaffirmed—or rather, reimagined—the right to abortion invented by the Court two decades earlier in Roe v. Wade . I was surprised, and crushed. For pedagogical reasons that elude me still, Casey was the first day’s reading assignment in my Constitutional Law course.

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After Fulton, Religious Foster Care Agencies Still Vulnerable

Tue, 22 Jun 2021 06:00:00 -0400

A distinctive feature of Chief Justice John Roberts’s nearly 16-year tenure on the Supreme Court is a growing body of precedents interpreting and enforcing the First Amendment’s religion clauses and federal religious-freedom statutes. These rulings have permitted appropriate cooperation between governments and religious schools; curbed anti-religious discrimination in regulation and funding; accommodated religious believers whose faith is unnecessarily burdened by official action; and respected the place of religion in the country’s history, traditions, and public square. It is noteworthy that under his leadership, and often through his authorship, decisions about these matters have generally not involved close splits along partisan lines.

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A Win For Religious Schools

Fri, 03 Jul 2020 06:00:00 -0400

John Roberts just bulldozed the wall separating church and state,” a Slate writer announced after the Supreme Court’s Tuesday decision in Espinoza v. Montana . Of course, the chief justice did no such thing. But overheated, demolition-themed headlines are, unfortunately, standard features of today’s commentary on the Court’s legally, historically, and morally sound Religion Clause decisions.

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Mild and Equitable Establishments

Mon, 01 Apr 2019 00:00:00 -0400

Whitefish Mountain, a ski resort in northwest Montana, is known for its spicy terrain, rime-clothed “snow ghosts,” and postcard-perfect views of Glacier National Park. And, of course, for “Big Mountain Jesus.”

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A Personal Case for Justice Amy Coney Barrett

Wed, 04 Jul 2018 06:00:00 -0400

It has become something of a ritual among legal junkies and Supreme Court watchers: After nine months of experts’ telling all who ask about this-or-that hot-button, big-ticket case that “a decision is expected in late June,” late June finally arrives, and the Justices release a raft of highly anticipated—and often highly controversial—closely divided rulings.

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Judge Gorsuch’s Prime-Time Humility

Wed, 01 Feb 2017 10:15:00 -0500

So, this is 2017: A few days after issuing an incompetently executed, morally dubious, and in many ways misguided executive order on immigrants and refugees, the president nominated an outstanding and unassailable jurist to succeed Justice Antonin Scalia.

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2012 Supreme Court Roundup

Mon, 01 Oct 2012 00:00:00 -0400

Students in my constitutional law course are usually surprised, and often skeptical, when I propose that the most important case they will study is not about abortion rights, the death penalty, or the status of Guantanamo Bay, and does not concern Ten Commandments monuments, Christmas displays, or internet pornography, but instead involves an early-nineteenth-century tax-collection dispute between the state of Maryland and the cashier of the Second Bank of the United States.

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Things Not Caesar’s

Thu, 01 Mar 2012 00:00:00 -0500

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.

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Kagan Proves Elections Matter

Mon, 10 May 2010 10:24:04 -0400

Sometimes, even things that are obviously true need to be underscored, and brought home. Here is one such thing: Elections matter. And, the election of President Obama has turned out to matter a great deal for the future decisions and direction of the Supreme Court.

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Religious Freedom and the Supreme Court

Fri, 01 Jan 2010 00:00:00 -0500

Religious Freedom and the Supreme Court
by Ronald B. Flowers, Melissa Rogers, and Steven K. Green
Baylor, 1200 pages, $69.95 paper

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