Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, January 11, 2012

Court unanimously (!) embraces the ministerial exception in Hosanna-Tabor

I confess, I expected the usual "decision in late June," but I'll certainly take this:  In an opinion for a unanimous Court, Chief Justice Roberts ruled in Hosanna-Tabor that the Constitution requires a ministerial exception, and that the exception applied in that case.  Importantly, the Chief Justice rejected the idea -- it "misses the point," he said -- that a religious institution must assert a "religious reason" for an employment decision in order to trigger the Constitution's limits on government involvement in the selection of ministers.  Also very important, I think, was the Court's clear rejection both of the Sixth Circuit's "count up the hours" approach to identifying "ministers" and its emphasis on the fact that the teacher in this case had "job duties" that "reflected a role in conveying the Church's message and carrying out its mission."  In other words, the exception is clearly not limited to ordained clergy.

Many of us have blogged often about the case and the questions it raises.  I'm sure the conversation will continue.  Suffice it to say (for now) that, in my view, this decision is important, correct, and welcome.

UPDATE:  Some more thoughts, here, at Bench Memos.

UPDATE:  Here's my insta-punditry, at USA Today, about the case:

At a time when the elected branches of government seem divided and dysfunctional, and when candidates in primary elections struggle to magnify every disagreement, it was nice of the Supreme Court, led by Chief Justice John Roberts, to remind us today that clear, efficient, consensus, and correct decisions about things that really matter are still possible . . .


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The decision is a resounding rejection of the Obama administration's extreme anti-religious position that threatened government interference with religious minister, and specifically teacher, hiring decisions.

Posted by: Matt Bowman | Jan 11, 2012 12:17:34 PM

Actually, Mr. Bowman, I thought the government's case reflected the opinion of Justice Scalia in Employment Division vs. Smith, in which he held that a free exercise claim could not be brought against a religiuosly neutral law of general applicability (as the Americans with Disabilities Act is).

I actually think that the decision in this case was correct, although I think the treatment that Ms. Perich received at the hands of Hosanna Tabor was rather shoddy. But it's Justice Scalia that was promoting an anti-religion bias first, not the Obama Administration.

Posted by: Edward Dougherty | Jan 11, 2012 12:42:55 PM

Mr. Dougherty -- with all due respect, it is quite mistaken to assert that the Smith case promoted "anti-religious bias." The decision quite clearly welcomes, and invites, accommodations of religion, and exemptions from general laws. What Smith says is that the project of accommodation is one that is left, by the Constitution, to the political branches, who are better suited to design exemptions and to take into account the often difficult balance between costs and benefits.

Posted by: Rick Garnett | Jan 11, 2012 12:51:43 PM

But doesn't Smith remain precedent, Professor Garnett? And didn't Justice Scalia also say in his opinion that, absent that action from the political branches, that a free exercise claim could not supersede laws of general applicability? And if the accomodations were welcomed by the decision, then why the rush to have had the Religious Freedom Restoraton Act (which I understand is now only applied at the federal level-correct me if I'm wrong on that) passed a year later in reaction to the decision, with the support of many religious bodies?

I don't doubt what you say but I think it is incredibly shortsided to have accounted for the Obama Administration's action in this case as being merely anti-religious bias, given the history with Smith.

Posted by: Edward Dougherty | Jan 11, 2012 1:01:53 PM

It remains precedent, certainly, but this case is not inconsistent with Smith. It is precisely because Smith invited legislative accommodations that RFRA (and many, many other similar statutes) were enacted. Note that Scalia (unlike some other Justices) has never suggested that legislative accommodations are suspect because they somehow give special treatment to religious believers. Smith is about the Court's institutional competence, not about the importance of religion and religious freedom.

The Obama Administration's position in this case was bizarre -- Justice Kagan, who was his Solicitor General, clearly thought so. And, whether or not it reflected "bias", it certainly accorded very little value or weight to religious freedom and very little regard for constraints on the government's power to interfere with religious matters.

Posted by: Rick Garnett | Jan 11, 2012 1:06:06 PM

I can see that, Professor, and maybe I'm a little bit thick on this (wouldn't be the first time) and I'm also not a lawyer nor have I ever been to law school. But if the ADA does not contain religious exemptions (and perhaps it does and I just don't know it) then how does the ministerial exception get around the Smith standard?

While I have you, did you concur with the Smith decision? Had you been on the court (and frankly, I'd rather have you than some of our current justices but I won't say who) how would you have voted if you don't mind my asking.

Posted by: Edward Dougherty | Jan 11, 2012 1:12:43 PM

It's a reasonable question, Mr. Dougherty, and here's how the unanimous court explained the difference:

The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), precludes recognition of aministerial exception. In Smith, two members of the Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregonlaw. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on theground that the law proscribes (or prescribes) conduct thathis religion prescribes (or proscribes).” Id., at 879 (internal quotation marks omitted). It is true that the ADA’s prohibition on retaliation, likeOregon’s prohibition on peyote use, is a valid and neutral law of general applicability. 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, concernsgovernment interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”). The contention that Smith forecloses recognitionof a ministerial exception rooted in the Religion Clauses has no merit.

Posted by: Matt Bowman | Jan 11, 2012 1:43:35 PM

These are good questions, Mr. Dougherty. Smith, it is important to appreciate, is about judicially created exemptions for religiously motivated actors from the *legitimate and authorized reach* of general laws. The Ministerial Exception, though, is a doctrine about the *limits* of the reach of general laws. The employment-discrimination laws -- while generally applicable *in their sphere of legitimate application* -- may not, consistent with the Constitution, be applied to ministerial-hiring decisions. Hosanna-Tabor is not an exception to, or retreat of (though it does clarify) Smith.

In my view, Smith is correct, in the sense that the Free Exercise Clause was not understood to authorize *judicially created* exemptions. Do I like all of the results that Smith produces? No.

Posted by: Rick Garnett | Jan 11, 2012 1:56:02 PM

Thanks, Mr. Bowman and Professor Garnett! I don't know if I agree with the reasoning vis-a-vis Smith but I'll have to think about this tonight while I'm watching college basketball (which is where I do my best thinking). I also still don't think this is indicative of a war against religion by the Obama Administration.

Posted by: Edward Dougherty | Jan 11, 2012 2:10:02 PM

Dear Edward -- perhaps it better suggests a war *within* the administration? Clearly, SG Kagan would not have agreed with the government's view (she signed an opinion calling it "extreme"). But, the EEOC's position is -- there's no other way to put it -- extremist. One hopes it does not reflect the views of the Administration as a whole.

Posted by: Rick Garnett | Jan 11, 2012 2:23:38 PM

Garnett, you get the word out fast!

Posted by: Marc DeGirolami | Jan 11, 2012 2:40:43 PM

A wonderful victory for the freedom of church (and, by extension, the freedom of conscience). Today's decision gives new hope and impetus to the work Prof. Garnett and all contributors to this blog do to understand and promote the rule of law under the First Amendment. Keep it up!

Posted by: Peter Ladwein | Jan 11, 2012 3:06:06 PM

Prof. Garnett comments: "But, the EEOC's position is -- there's no other way to put it -- extremist. One hopes it does not reflect the views of the Administration as a whole."

Certainly, the Obama Administration bears a healthy portion of responsbility for the arguments made in this case. But administrative agencies have their own agendas that last well beyond any administration. Thus it seems pertinent to note, with respect to the question of any hostility to religious freedom, that the EEOC originally filed this suit in 2007, during the Bush Administration, and appealed the District Court's decision to the 6th Circuit on January 30, 2009, before any Obama appointees reached the EEOC Board.

Posted by: brennan | Jan 11, 2012 3:32:23 PM

" I also still don't think this is indicative of a war against religion by the Obama Administration."

It is certainly another piece of evidence in support of that inescapable conclusion.

Posted by: Brian English | Jan 12, 2012 10:55:43 AM

In response to brennan in particular, and to everyone regarding the federal government's position as extreme or not:

brennan suggests that (1) a lack of extremism is shown by the case's origins in the Bush years and (2) the EEOC, not the administration, shares significant responsibility for the position taken. While both points might sound plausible, neither works here.

(1) While the federal government/EEOC sided with Perich all along, it took the new, extreme position only at the Supreme Court. In the trial court and the appeals court, they accepted the existence of the ministerial exception, and argued only that Perich fell outside it on the facts of her case.

When the case reached the Supreme Court, the federal government argued that the exception does not exist at all, other than as a "freedom of association" claim, with literally no difference from what a union or political party would have. That was the radical part, because it means that the Religion Clauses have no role here. It went beyond the EEOC position below. It went beyond the consensus in every circuit court, adopted by panels of "liberal" and "conservative" judges. It shocked several justices, such as Justice Kagan, who asked at oral argument about how radical that was.

I believe that Prof. Garnett, along with most critics who labelled the federal government's position extreme, focused not just on the "siding with Perich" aspect, but on the specific argument that the exception does not exist at all. While I agree with Prof. Garnett that the position is extreme, and you are all free to disagree, the position cannot fairly be described as continuation of the litigation position below.

(2) This position cannot be attributed much, if at all, to the EEOC. As I understand it, agency influence is highest at the trial court, where the decision is to file a complaint or not, to enforce or not on given facts, etc. It is lowest at the Supreme Court, where the Solicitor General is looking at a position that affects the entire government and the country. Agency influence is also highest regarding its regulations, medium regarding statutes relating to the agency, and lowest regarding constitutional law. The Solicitor does not give much weight to agency views regarding the First Amendment.

The more relevant question is not the EEOC role, which is minimal at this stage, but the relative roles of the SG and the White House. The SG is often fairly independent, so one might see this as the SG's view rather than the White House's. However, evidence suggests that the White House's influence rises with a case's political sensitivity. Certainly that happened with the Bush White House counsel calling the SG on the Bollinger cases, and is happening now with health care.

Therefore, this position does seem to be the Administration's, not the EEOC's, and it is definitely not the one taken by the EEOC in the same case earlier.

Posted by: another view | Jan 12, 2012 2:13:24 PM

"another view" is correct: I did not suggest (and I have never heard anyone suggest) that it was "extreme" to side, at the outset of the litigation, with Perich. What was extreme -- and former Obama SG Justice Kagan agrees it was extreme -- was the position taken by the government in the Supreme Court.

Posted by: Rick Garnett | Jan 12, 2012 2:31:41 PM

Didn't the Obama appointed head of the EEOC also make a comment recently indicating that religious freedom would have to give way if it came in conflict with efforts to eradicate "discrimination"?

Posted by: Brian English | Jan 12, 2012 5:24:33 PM

The Obama administration overreached and paid for it.
It tried to turn religion into just another social club.

For decades now, liberals have been chipping away at the meaning of religion, trying to reduce
it to just another abstract concept with no real relevance in the here and now.

But the Roberts Court soundly rejected that view. The Roberts Court made it clear that it knows exactly what religion is, and it made it clear that religion is granted special protection by the Constitution.

Time to celebrate, religion!

Posted by: joe jenkins | Jan 18, 2012 7:39:02 AM