Wednesday, January 11, 2012
A couple more thoughts on the huge victory for institutional religious freedom in Hosanna-Tabor. Although the majority opinion holds only that Perich was a "minister" under these facts--teaching religion classes, sometimes leading worship, holding a "commissioned" title after a period of theological education--the impact and signals are broader.
First, when you win on the facts of a case, you typically also get language earlier in the opinion that supports your side more broadly. Conversely, if you lose on the facts, you often also get stuck with broad negative language earlier in the opinion. Here the broad language in favor of institutional religious freedom includes not only the ringing historical and doctrinal affirmation of the ministerial exception. It also includes the passage distinguishing away Employment Division v. Smith. That decision, the Court said, only allowed upheld neutral prohibitions of "physical acts" (like peyote ingestion), not "government interference with an internal church decision that affects the faith and mission of the church itself." Although those two categories don't match each other well, the point is: the Court distinguished Smith not on the narrow ground that Title VII suits would unconstitutionally entangle judges in religious determinations, but on the broader ground that religious organizations have a constitutional right to choose their leaders and even a broader right to make "internal ... decision[s] that affect [their] faith and mission." These phrases suggest many possibilities for constitutional arguments, even if we don't know they'd be constitutional victories.
Second, although the majority is case-specific on who counts as a minister, three justices--including Elena Kagan!--endorse a broader definition. Thomas would defer heavily to the religious organization's characterization of an employee as a minister. And Alito and Kagan say that ordained or "commissioned" status isn't crucial, that the question is about religiously-significant functions (listing several of them), and that "the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones. What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities." (Concurrence at 8) I can imagine imagine teachers in many Christian schools satisfying that test, and also many employees in many religious social services who explicitly communicate religious messages along with the services they provide. With three justices explicitly taking the broader approach, all you need is a couple more (Roberts and Scalia, most likely) for a majority. Hosanna-Tabor doesn't give us a full-fledged broad definition for a "minister," but it makes the route to such a definition much easier.