Friday, July 10, 2020
Here is a short piece I did for the Law & Liberty site, on the Supreme Court's recent decision in two cases involving the so-called "ministerial exception" and Catholic schools. A bit:
In a pair of cases involving the religious-freedom rights of parochial schools, the Supreme Court on Wednesday re-affirmed a core First Amendment rule and a crucial aspect of church-state separation, properly understood: Public officials, regulators, and courts lack the authority to decide who should, or should not, perform important religious functions. Questions about religious institutions’ religious teachings, and teachers, belong to the “church” and not to the “state.” . . .
As the Court had in Hosanna-Tabor, Justice Alito’s opinion emphasized the deeply rooted concern in our law, history, and traditions of “the general principle of church autonomy” and of religious institutions’ “independence in matters of faith and governance and in closely linked matters of internal government.” Along with other scholars, I have explored the connections between the importance of this “general principle” in American constitutional law and some of the great church-state controversies of the past and the long-running (and still continuing) struggle for the “freedom of the church.” As the Court observed, and in keeping with this history, the First Amendment has long been understood as requiring secular authorities to avoid attempting or purporting to “resolv[e] underlying controversies over religious doctrines.” Whatever disagreements might persist about the content of the Constitution’s no-establishment rule (regarding prayers at town-hall meetings or war-memorial crosses, for example), it seems clear that the paradigmatic feature of the kind of religious “establishment” that the First Amendment was designed to rule out is political meddling in the selection of religious ministers, the formulation of religious doctrines, and the teaching of religious truths. . . .
At the end of her dissent, Justice Sotomayor expressed concern about the implications of the decision “in a pluralistic society like ours.” However, it is precisely because ours is a “pluralistic society” that the Court’s 7-2 determination is so important. In a meaningfully pluralistic society, not every organization or institution will act the same way, or be structured in the same way, or have the same goals, or be governed by the same rules. A society without mission-oriented Catholic schools is a less pluralistic society than one with them. A political authority that imposes the same employment rules on every employer, regardless of sector or context or history or aims, is not diverse, but homogenous and monochrome. And, in any event, foundational commitments to limited government and religious liberty require that decisions about religious leaders and teachers be left to religious decisionmakers.