Hosanna-Tabor and the Weird Status of Religion

January 11, 2012

Today the Supreme Court ruled unanimously in the Hosanna-Tabor case that there is a “ministerial exception” to the nation’s laws forbidding discrimination in employment. The Court ruled that both religion clauses of the First Amendment—the Free Exercise Clause and the Establishment Clause—effectively provide religious institutions with absolute discretion to select their “ministers.” 

I’m not sure I can say this decision is incorrect under the U.S. Constitution. The Court was confronting a novel question, which the Founders presumably did not anticipate given the absence of employment discrimination laws in 1789. (This is another illustration of why the doctrine of “original intent” is pure intellectual rubbish, but don’t get me started.) However, I do think the decision highlights the weird, special status of religious institutions—a status that arguably can’t be justified.

As most everyone knows, there is a bevy of federal, state, and local anti-discrimination laws that prohibit employers from discriminating against employees (or candidates for hire) based on characteristics such as race, sex, age, disability and so forth. These laws apply to nonprofit organizations just as much as they apply to commercial enterprises. The Center for Inquiry cannot violate these laws, nor can Planned Parenthood, Human Rights Watch, and so on.

The Court has now ruled that with respect to some employees, religious institutions can violate these laws with impunity, or to be more precise, these laws do not apply to them insofar as they relate to the hiring or retention of “ministers.” The complete text of the Court’s decision can be found here.

Mind you, this is not a question about whether the Catholic Church can insist that its priests accept the doctrines of the Church, such as celibacy, the immorality of homosexual conduct, and so forth. The Court’s ruling allows the Catholic Church, and any religious institution, to get rid of anyone acting in a “ministerial” capacity for any reason—they’re too old, disabled, Latvian, or whatever. Moreover, under the Court’s ruling, a “minister” who has been sexually harassed by church leaders and is fired for complaining has no remedy.

In its ruling, the Court stated that the Founders did not want government interference in the internal affairs of churches, and that this implies that the government can place no restrictions on who a church chooses as one of it leaders.

It’s undoubtedly true that the Founders did not want government control over churches. I also think this is wise policy. However, it’s a separate question whether the autonomy of religious institutions means that their employment decisions relating to “ministers” can’t be questioned for any reason.

By the way, if you’re wondering why I’ve been putting “minister” in scare quotes it’s because there’s no clear definition of “minister” under constitutional law and the Court did not provide one. It declined to set forth a “rigid formula.” In the case before it, the plaintiff was a teacher at a parochial school who spent most of her time on secular duties, but she was a teacher who had been “called”—essentially someone given special recognition by the Lutheran congregation operating the school.

But let’s now spend a moment reflecting on the underlying questions: Should religious institutions be entitled to special privileges under the law? To what extent? Don’t get me wrong. I’m not questioning the importance of freedom of conscience and, as already indicated, I certainly don’t want the government running churches. However, it seems to me that we can respect freedom of conscience and not have the U.S. Attorney’s office operating Sunday school while still requiring that religious institutions obey generally applicable employment discrimination laws.

To claim otherwise is give special privileges to institutions that promote belief in spirits—immaterial, invisible beings who have supernatural powers. Or to put it more bluntly, we are rewarding institutions that promote a certain type of nonsense.

Granted, nonsense has its rights. We cannot avoid some nonsense if we’re going to have free expression, and there probably are many nonprofits that promote false beliefs—but only religious institutions get a pass on employment discrimination laws.

Perhaps as a pragmatic matter, we have to give religious institutions a pass. One of the purposes of the religion clauses of the First Amendment was to prevent the violence and civil unrest that had plagued Europe for centuries as a result of religious conflict. It’s possible that any attempt to enforce discrimination laws in the context of religious institutions would be met with such resistance that the disadvantage of doing so would outweigh the benefits. If so, that’s a sad comment on the human condition. An employee can sue a nonprofit that provides medical care or emergency relief, but a “ministerial” employee has no recourse against a nonprofit whose purpose is to promote belief in super-powerful spirits.


#1 L.Long (Guest) on Wednesday January 11, 2012 at 7:05pm

I say yes!!  Religious organizations should be exempt from the anti-discrimination rules.
Because the clearest way to show what a bunch of nitwit bigots these people are is to let them display it in full.  It will not only drive ‘good’ people out of their group but it will allow outsiders know who some of the major bigots are.  And self identified bigots are easier to handle then hidden ones.

#2 Bob Ritter on Sunday January 15, 2012 at 10:21pm

Hi Ron.

You state that the underlying question is: “Should religious institutions be entitled to special privileges under the law?” Three points.

First, as we both know, the religion clauses of the First Amendment in fact privileges religion. It is not a debatable question, only the contours of the privilege. Otherwise, there would be no purpose for the clauses.

In one sense Atheists, Humanists, Freethinkers, secularists generally, indeed, anyone who supports the principle of separation of church and state should be ecstatic about the decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The decision is a strong reaffirmation of the principle.

I wonder how David Barton (WallBuilders) and others of the Christian Right, who deny that the principle of separation of church is embodied in the First Amendment, explain the decision. Obviously they can’t argue that the Establishment Clause was only intended to prohibit the establishment of a national religion—for that would not cover the Hosanna-Tabor situation.

Second, I agree with you that the Hosanna-Tabor situation was not anticipated by James Madison and others in the First Congress when it passed and sent proposals for the Bill of Rights to the states for ratification. Nevertheless, the wording is what it is. It is (a part of) the supreme law of the land. Accordingly, the First Amendment trumps laws enacted by Congress (or the states) where the two conflict. Thus, because the religion clauses protect a church’s right to choose its ministers, employment discrimination laws with respect a church’s hiring and firing its ministers are unconstitutional.

Third, statements like “Granted, nonsense has its rights” are both condescending and erroneous. As you aptly articulate in your concluding remarks there are pragmatic reasons (and others as well) for the religion clauses.

Three final points.

First, the Court left open the possibility that the retaliation provision of the federal anti-discrimination law may be constitutional. I submit that it is more than likely, it is probable.

Second, there may be a day when a Humanist organization invokes the ministerial exception in seeking dismissal of a law suit by one of their their celebrants or otherwise asserts the privileges of the religion clause—for the Court has said that government may not prefer one religion over another or religion over nonreligion.

And third, while Hosanna-Tabor’s firing of firing Cheryl Perich is protected by the First Amendment, Judgment Day (should there be one) will not be so kind to the church for violating the Golden Rule.

Best wishes,

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