






Limited decision, sweeping language


At the same time, observers say, the decision is far broader than many expected it to be. It begins with a long history of church-state law (starting with the 1215 Magna Carta) and the religion clauses of the Constitution. And it contains language on both clauses that is likely to be cited in cases that aren't simply about church employment law.

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"It is not just a spectacular win on multiple issues and with multiple (indeed, all) justices on board, but it is the Court's sweeping language that is so very important," said Carl Esbeck, a law professor at the University of Missouri. "The words in the various justices' opinions ring out like a Liberty Bell for religious freedom. Already I can envision scores of legal briefs being churned out in the future mining the Court's passages reaffirming religious freedom as the First Freedom of the Republic. Of cardinal importance: the Supreme Court relied on the Establishment Clause as well as the Free Exercise Clause as a fountainhead of religious freedom—a contended point until now."

Ministers have secular duties, too

Cheryl Perich, a teacher at Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan, fell ill in 2004 with a form of narcolepsy and was placed on leave. When she attempted to return, the church voted to offer a "peaceful release" from her call. Perich said she would not resign, and threatened to sue when the school told her she would probably be fired. The church said her threat to sue constituted "insubordination and disruptive behavior" and fired her.

If Hosanna-Tabor had been a secular business, it would have run afoul of the Americans with Disabilities Act. Not only does the law say employers can't make employment decisions on the basis of a disability like narcolepsy, it also says employers can't retaliate against employees who threaten to sue over such actions.

Perich's lawyers argued that though she was a "called" teacher (as opposed to a "lay" teacher) and a commissioned minister in the Lutheran Church-Missouri Synod, she wasn't enough of a "minster" to fall under the ministerial exception. The EEOC agreed, and brought its own suit against Hosanna-Tabor. Notably, the Sixth Circuit Court of Appeals agreed, too.

"[P]arochial school teachers such as Perich, who teach primarily secular subjects, do not classify as ministerial employees for purposes of the exception," the lower court said. "Perich spent approximately six hours and fifteen minutes of her seven hour day teaching secular subjects, using secular textbooks, without incorporating religion into the secular material. … [T]he title of commissioned minister does not transform the primary duties of these called teachers from secular in nature to religious in nature."

But if you limit the ministerial exception "to those employees who perform exclusively religious function," as both the EEOC and Perich had argued, who's a minister?

"We are unsure whether any such employees exist," Roberts wrote. "The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities. … The issue … is not one that can be resolved by a stopwatch."

The justices were similarly critical of the argument from the Obama administration's lawyer that the religion clauses do not really apply to the case. Religious organizations' right to choose their leaders is mostly about the freedom of association, the administration's lawyer had said.

"We find this position untenable" Roberts wrote, saying such a view is "hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations."

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A ruling for more than churches?

The ruling may have implications for church-state conflicts beyond just church hiring and firing practices, said Stanley Carlson-Thies, president of the Institutional Religious Freedom Alliance. "While the decision is about 'ministerial' employees, the religious institution involved was a elementary school, not a church or seminary."

If the government can't tell a church or religious group to accept or reject a minister, he asks, "How then it can be constitutional for a public university to tell religious student groups what criteria they can and cannot use in selecting their leaders? Does this decision have a penumbra that strengthens the freedom of religious organizations more broadly? That remains to be seen--yet the language and the unanimity of the decision are encouraging."

Kim Colby, senior counsel for the Christian Legal Society's Center for Law and Religious Freedom, was similarly encouraged. "This decision should help religious groups that are being charged with 'religious discrimination' when they require their leaders to agree with their statement of faith," she said. "In a conflict between nondiscrimination laws and religious liberty, religious liberty prevailed. Nondiscrimination laws serve vital and good purposes in our society. But they have been increasingly misused to harm religious liberty in a number of contexts over the past decade."

The CLS lost a Supreme Court battle last year when the justices ruled 5-4 that a California law school can bar groups that require leaders to sign a statement of faith.

Today's decision does not mention the CLS decision, Colby notes. "But its reasoning indicates why [the CLS] decision should be seen as quite narrow and confined to the novel Hastings policy that required all groups to be open to all leaders and members, regardless of their beliefs."

'Choosing ministers isn't like taking peyote'

For the most part, however, religious liberty scholars and observers saw today's decision as less a setback to last year's CLS decision than to 1990's Oregon v. Smith decision. In that 22-year-old ruling, the Supreme Court said a state could not bar unemployment benefits to two Native American Church members who ingested peyote as part of a religious ritual. Oregon's ban on peyote was a "neutral law of general applicability," the court said, so it didn't violate the free exercise clause.

"It is true that the ADA's prohibition on retaliation, like Oregon's prohibition on peyote use, is a valid and neutral law of general applicability," the Supreme Court said today. "But a church's selection of its ministers is unlike an individual's ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself."

Smith "had been read by many observers to prevent religious groups from asserting free exercise clause protection from generally applicable, neutral laws, such as nondiscrimination laws" said Colby. "The government had argued that under Smith, the free exercise clause provided no protection for churches' choices of ministers. Similarly, [in last year's majority opinion] Justice Ginsburg treated CLS's free exercise claims in a footnote, saying Smith meant that CLS had no free exercise claim. This is no longer true after Hosanna-Tabor."

"Implications for other kinds of cases are unpredictable, but this at least makes clear that there is some life to religious liberty after Smith," said Laycock. "It may never reach beyond internal church governance, or it may lead to other wins that are quite unforeseeable. But the ministerial exception itself is important. We don't need other implications to make this matter."

Related Elsewhere:

Christianity Today earlier previewed the case and covered oral arguments.