In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court held on Wednesday (here) that a religious school was immune from liability against a claim that it had violated the American Disabilities Act in firing a teacher because the teacher was determined to be a Lutheran minister. Under previous Supreme Court religion law the Court would have found no violation of religious freedom because the American Disabilities Act had no purpose to single out religion only a religious effect. The Court had previously determined in Employment Division v. Smith that in most circumstances, a religious burden imposed by a generally applicable statute unaccompanied by a purpose to single out religion did not even give rise to a freedom of religion issue. So if a law against ingesting peyote burdens the ingestion of peyote as a sacrament as part of a Native American religious ceremony, there was not even a freedom of religion issue. But the Court determined that there is a ministerial exception to freedom of religion law.
Indeed, the terms of the Court’s decision are sweeping. Although the Court found that the school had relied on religious reasons in making its determination, the Court insisted that religious organizations had complete autonomy in selecting their ministers. In other words, the school could discriminate on the basis of race or disability in firing or refusing to hire a minister even if that discrimination had nothing to do with its religion.
As Mike Dorf argued yesterday, the Court’s attempt to distinguish the Smith case is entirely unpersuasive. If it is problematic for government to interfere with the autonomy of religious organizations in selecting ministers, surely it is problematic for government to interfere with the administration of sacraments. Perhaps we can hope at least that the Hosanna-Tabor case might pave the way for undoing the Court’s misadventure in Smith.
But the adoption of the ministerial exception was unnecessary. The Court could have argued that the school’s decision was protected by freedom of association. Generally applicable statutes directed at limiting employment decisions are subject to freedom of association limitations. As I argued last July in a post discussing the case here, ”I think that religious associations should stand on the same footing as other ideological associations They should be able to select their leaders and members in accordance with their ideology. But religion should not confer a license to discriminate for reasons that have nothing to do with the religious doctrine of the Church, yet that is precisely what the ministerial exemption confers.” Under the law of freedom of association, the Sierra Club can refuse to hire leaders who do not conform to its ideology, but it cannot discriminate on religious grounds. A religious organization should be able to discriminate on the basis of conformity with its religion, but not on the basis of sex, race, or disability unless it is part of its religion to do so.
Why did the Court not employ the freedom of association line? The Court said that that the Religion Clauses would be superfluous if their content was exhausted by freedom of association. But this is plainly wrong. The Free Exercise clause protects some actions that would not be protected in its absence. The Establishment Clause prohibits some government speech that would not be prohibited in its absence. There would be nothing superfluous about these clauses if the Court had decided the case on freedom of association grounds.
At the end of its opinion, the Court said that the First Amendment had struck the balance between freedom of religion and the state’s opposition to discrimination on the basis of disabilities. This leaves out an important step. The Court struck the balance and then projected its balance onto the First Amendment. For reasons I set out in July, I think it reached the wrong result on the facts. Its result aside, Chief Justice Roberts, who wrote the opinion, added yet another to the many opinions in which he has distinguished prior opinions on thoroughly unconvincing grounds.