A religious clash

Walter Olson Senior Fellow, Cato Institute
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Today the Supreme Court will hear oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which some are calling the Court’s most important religious liberty case in a generation. The case invites the Court to address a question with wide-ranging implications: At what point do anti-discrimination laws unconstitutionally infringe on the right of religious groups to operate in accord with their religious tenets?

Under different circumstances, Hosanna-Tabor might have presented a narrow issue of (excuse the expression) parochial interest. Every federal appeals court to rule on the issue has agreed that the Constitution gives religious institutions some degree of autonomy to select their own clergy, notwithstanding federal laws creating a right to sue over sex, race or for that matter religious discrimination. This “ministerial exception,” as it is called, ensures that courts will not order the Catholic Church to ordain women priests, that Reformed denominations will not have to accept Unitarian or Eastern Orthodox believers as clergy, and so forth. At the same time, courts have generally held that the Constitution does not bar lawsuits against religious employers by workers holding jobs with unmistakably secular responsibilities, such as nurses or accountants.

In Hosanna-Tabor a fact pattern came up somewhere between these two ends of the continuum. A Michigan teacher who taught a mix of secular and religious topics at a (now-closed) religious grade school filed suit against the school over alleged retaliation under the Americans with Disabilities Act. The church had designated her particular teaching position (unlike some others) as reserved for persons with a “calling,” and it deemed her not to have such a calling, given her willingness to resort to court action rather than internal church dispute mechanisms. But perhaps the school had erred by reserving the position for persons with a calling. If so, who should decide where to draw the line? The federal Equal Employment Opportunity Commission? A federal court that might be unfamiliar with, or unsympathetic to, church doctrine?

Had the Obama administration sought to sidestep culture-war politics and buff up its pluralist credentials, it might have urged the high court to read the ministerial exception broadly to include jobs including religious instruction, or at least urge it to decide the case at hand narrowly. Instead, it astonished some onlookers by urging the Court to reconsider the ministerial exception entirely. As Stanford’s Michael McConnell, the academy’s leading religious liberty scholar, put it in a Wall Street Journal op-ed today:

… the Obama Justice Department has now asked the court to disavow the ministerial exception altogether. This would mean that, in every future case, a court — and not the church — would decide whether the church’s reasons for firing or not hiring a minister were good enough …

James Madison famously declared that the civil magistrate is not a “competent Judge of Religious truth.” Yet every discrimination claim about the hiring of a minister necessarily comes down to the question of whether the church had a bona fide religious reason for its decision. That places the courts squarely in the business of adjudicating the validity of a church’s claims about its own religious practice.

Notre Dame’s Rick Garnett says the Obamanauts have taken an “outlier position.” And UCLA’s libertarian-leaning Eugene Volokh explains some of the reasons he signed onto an amicus brief on the churches’ behalf:

a discrimination claim by a minister may require courts to evaluate things that courts shouldn’t be evaluating, such as a person’s fitness for the ministry. … the Establishment Clause has generally been read as barring excessive government entanglement with religious matters, and deciding whether a would-be minister is more or less qualified than others would indeed likely lead to such excessive entanglement, because ministerial qualifications are an inherently religious matter. Likewise, deciding whether the defendant’s explanation for the decision is pretextual similarly requires secular evaluation of which religious decisions are reasonable, something courts generally can’t do. “We prayed, and we feel God told us to hire one applicant rather than another” is an argument that’s hard for secular courts to reasonably evaluate.

I wonder whether we should actually be all that astonished at the Obama administration’s stance. President Obama’s appointees at the EEOC and other agencies have consistently taken a highly aggressive approach toward broadening the scope of the anti-discrimination laws they enforce, as evidenced by the steady flow of new efforts to restrict employer consideration of job applicants’ criminal convictions, credit records, English fluency, obesity and so forth, as well as the president’s own proposal to establish unemployed job applicants as a new protected category. The fact is that to many in the Obama administration, as to many in modern legal academia, employment discrimination law is itself pursued with the intensity of, well, a religion. And when someone else’s religion comes into conflict with theirs — well, it’s only human nature for them to want theirs to prevail.

Walter Olson is a senior fellow at the Cato Institute and author of Schools for Misrule: Legal Academia and an Overlawyered America (Encounter).

Walter Olson