Thursday, December 19, 2019
Jon Hannah already noted the good news that the Supreme Court has agreed to review the Ninth Circuit's (misguided) rulings in St. James School and Our Lady of Guadalupe school. In each of these cases, the Ninth Circuit adopted a very narrow version of the "ministerial exception," which was unanimously confirmed to be constitutionally required by the Supreme Court in the Hosanna-Tabor case. Here is an amicus brief, filed on behalf of a number of church-state scholars (including MOJers Michael Moreland and me), urging the Court to grant cert. (and reverse). From the "summary of the argument":
In Hosanna-Tabor, this Court affirmed that the
ministerial exception protects the autonomy of
religious organizations to select those who perform
significant religious functions, including religion
teachers and others who help transmit the faith. Both
history and precedent show that the First
Amendment forbids the government from
“interfer[ing] with the internal governance of the
church.” Hosanna-Tabor, 565 U.S. at 188. And to
protect the right of religious autonomy, religious
organizations must have the freedom to “control . . .
the selection of those who will personify [their] beliefs”
or “teach their faith.” Id. at 188, 196. The ministerial
exception embodies this principle by prohibiting the
government from imposing sanctions on religious
organizations for the hiring and firing of key religious
personnel, including religion teachers.
In the decision below, the Ninth Circuit
misconstrued the ministerial exception in two ways.
First, it misread Hosanna-Tabor as adopting a set of
mechanical requirements that must be satisfied in
every case for the ministerial exception to apply.
Second, it failed to recognize that the core purpose of
protecting religious autonomy requires applying the
exception to all employees who have significant
The Ninth Circuit’s decision not only departs from
this Court’s precedent and the history underpinning
the ministerial exception, but also conflicts with every
other Circuit to address this issue.