Hosanna-Tabor: Freedom of Religion (Not Merely Association) and a Note about Defenses

Following on Rick's and Marc's posts, today's decision in Hosanna-Tabor is a resounding vindication of church autonomy (interestingly, a phrase that appears prominently in the concurrence by Justices Alito and Kagan) and religious freedom. Congratulations to Doug Laycock, who adds a litigation win in this major religious freedom case to his remarkable scholarly career. Two offhand things to note:

1. The Court (correctly, in my view) utterly rejects the view of the Obama Administration and some amici (see my earlier post here) that the right of religious institutions to select their own ministers isn't protected under the Religion Clauses and (what little is left of such a right) could instead be protected under the freedom of association. Chief Justice Roberts doesn't spend much time on how or why churches aren't just like the Boy Scouts (to adapt a phrase from Rick), and filling out the argument here is an important and ongoing scholarly task: 

The EEOC and Perich acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary. According to the EEOC and Perich, religious organizations could successfully defend against employment discrimination claims in those circumstances by invoking the constitutional right to freedom of association—a right "implicit" in the First Amendment. Roberts v. United States Jaycees, 468 U. S. 609, 622 (1984). The EEOC and Perich thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves.

We find this position untenable. The right to freedom of association is a right enjoyed by religious and secular groups alike. It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers. 

2. I still think Greg Kalscheur's argument that the ministerial exception is best understood as a subject matter jurisdictional defense is profoundly right, but the Court's opinion drops a footnote resolving the circuit split and states that the ministerial exception is instead an affirmative defense (slip op. at 20 n.4). But I suppose it's a great day for religious freedom when one is left only to nitpick over the distinction between a jurisdictional bar and a defense on the merits.