Religious associations: Hosanna-Tabor and the instrumental value of religious groups.

• Author: Bhagwat, Ashutosh

ABSTRACT

In its 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court held that the Religion Clauses of the First Amendment require recognition of a "ministerial exception " to general antidiscrimination statutes (in that case, the ADA), because religious institutions must have autonomy in selecting their ministers. In the course of its analysis, however, the Court made a very interesting move. In response to the government's argument that the case could be resolved under the general First Amendment right of association, the Court responded that this position was "untenable," and indeed "remarkable," because the very existence of the Religion Clauses indicated that religious groups must be treated differently from secular groups. It also rejected the view that its groundbreaking decision in Employment Division v. Smith, which interpreted the Free Exercise Clause extremely narrowly, precluded reliance on the Religion Clauses here, curtly distinguishing Smith on the grounds that it did not involve "government interference with an internal church decision that affects the faith and mission of the church itself." Hosanna-Tabor thus appears to stand for the propositions that religious groups are different from secular groups for constitutional purposes and entitled to extra constitutional protections, and further, that religious institutions such as churches possess broader Free Exercise rights than do individuals. In this Article, I argue that both these propositions are indefensible in light of the text, history, and purposes of the Religion Clauses. I further argue that granting religious institutions special constitutional rights raises some very difficult, ultimately irresolvable boundary problems regarding the scope of the ministerial exception.

Ultimately, I conclude that a much better analytic course for the Court to have followed in Hosanna-Tabor would have been to rely on the freedoms of assembly and association protected by the First Amendment, which the Court so casually rejected. The effect of relying on assembly and association would be to grant all groups whose activities are relevant to democratic politics a right of autonomy, including a right to select its members and leaders. Religious groups would certainly qualify for such a right (thus affirming the result in Hosanna-Tabor), but so would many secular groups on the same terms. I discuss the ways in which this vision of associational rights fits well with the overall structure of the First Amendment, and with the instrumental role that religious groups (as opposed to individuals) play in our society. Relying on assembly and association also avoids the boundary problems raised by the ministerial exception and defuses the tension with free-speech doctrine created by the Court's preferential treatment of religious groups in Hosanna-Tabor. I conclude by exploring the ways in which the existence of the Religion Clauses may be relevant to religious groups' assembly and associational rights, even if they are not the source of those rights.

TABLE OF CONTENTS INTRODUCTION I. HOSANNA-TABOR AND THE "FREEDOM OF THE CHURCH" II. THE PROBLEMATICS OF GROUP RIGHTS UNDER THE RELIGION CLAUSES A. Text and Doctrine B. History C. Purposes D. Boundaries III. REDEEMING HOSANNA-TABOR A. The Democratic First Amendment B. The Instrumental Value of Groups C. Politics and Religious Associations IV. ESTABLISHMENT CLAUSE REDUX CONCLUSION INTRODUCTION

In 2012, the Supreme Court issued its most important decision in many years on the subject of the rights of religious groups: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission ("Hosanna-Tabor". (1) Unfortunately, Hosanna-Tabor's importance is matched only by its opaqueness. The specific holding of Hosanna-Tabor is that the Religion Clauses of the First Amendment (2) require recognition of a "ministerial exception" to antidiscrimination statutes--specifically, the Americans with Disabilities Act ("ADA"). This decision means religious institutions may not be sued under antidiscrimination statutes regarding employment disputes with ministers.

This result must be correct. After all, it is unthinkable that the Catholic Church could be legally required to hire women as priests. But why it is correct, as a doctrinal matter, is a rather more difficult question. In particular, it is difficult to reconcile the reasoning of Hosanna-Tabor with key modern Religion Clause precedents. It is the contention of this Article that such reconciliation is simply not possible. The acclamation with which Hosanna-Tabor has been received by constitutional scholars (3) is justified by neither text, nor history, nor theory. This is not to say that the result in Hosanna-Tabor is wrong, but its reasoning surely is incorrect.

If the Religion Clauses cannot justify an exemption for churches from antidiscrimination statutes, then how can the result in Hosanna-Tabor be correct? It is my contention that the freedom of assembly, along with the nontextual but closely related right of association protected by the latter portion of the First Amendment, provides a more than adequate basis for such an exemption. In Hosanna-Tabor the Solicitor General in fact argued that the right of association provided the strongest grounds for a ministerial exemption (albeit, he argued against application of the exemption in that case). (4) The argument was, however, off-handedly rejected by the Court as "untenable" and "remarkable." (5) My goal is to demonstrate why relying on assembly and association to protect religious groups is not only not "untenable," it is in fact entirely logical given the history, structure, and purposes of the First Amendment. (6) Such an approach avoids the doctrinal conundrums elided by the Hosanna-Tabor Court as well as many of the very difficult boundary problems raised by the Court's reliance on the Religion Clauses. It also fits well with the underlying purposes of the Assembly Clause and right of association. In particular, I demonstrate that the purposes of the Religion Clauses, including especially the right to free exercise of religion, are rooted in concerns about individual dignity and freedom of conscience. By contrast, the rest of the First Amendment is best understood in far more instrumental terms, as designed to protect and strengthen the democratic structure of the Constitution. It is this fact that makes the latter portion of the Amendment a far more conducive place to find protection for groups, including religious groups, than the Religion Clauses.

Part I of this Article briefly discusses the Hosanna-Tabor decision, placing it in the context of the Court's Religion Clause jurisprudence and recent scholarship regarding the "Freedom of the Church." Part II discusses why the Religion Clauses provide a poor home for the group right established by Hosanna-Tabor. Part III demonstrates that the freedom of assembly and right of association protected by the latter part of the First Amendment are, for textual, historical, and structural reasons, the logical sources of group rights. Finally, Part IV circles back to the Religion Clauses and suggests how the Establishment Clause in particular might be relevant to the analysis of the rights of religious groups, even if it is not the source of those rights.

1. HOSANNA-TABOR AND THE "FREEDOM OF THE CHURCH"

   The Hosanna-Tabor litigation arose out of an employment dispute between the Hosanna-Tabor Evangelical Lutheran Church and School and Cheryl Perich, a "called" teacher at the school. A "called" teacher is one who is "regarded as having been called to [her] vocation by God through a congregation." (7) Perich received special training to become a "called" teacher and her duties included teaching both secular and religious subjects, as well as attending and sometimes leading chapel service. (8) The dispute between Perich and Hosanna-Tabor arose after Perich became sick and went on disability leave. Ultimately, Perich was refused permission to return to work. She then consulted an attorney and was fired. (9) The Church claimed that the firing was because Perich's "threat to sue the Church violated the Synod's belief that Christians should resolve their disputes internally." (10) Perich filed a charge with the Equal Employment Opportunity Commission ("EEOC"), which filed a lawsuit on her behalf, in which Perich intervened. (11) The lawsuit alleged that Perich was fired in retaliation for threatening to file a lawsuit under the ADA, which in turn violated the ADA. (12) Hosanna-Tabor defended itself on the grounds that lower courts had read the First Amendment to create a "ministerial exception" to antidiscrimination laws, prohibiting courts from intervening in employment disputes between churches and their ministers. (13) The district court granted Hosanna-Tabor summary judgment, but the court of appeals reversed, holding that although the ministerial exception existed, Perich did not qualify for it. (14)

   The Supreme Court reversed and ruled in favor of Hosanna-Tabor in a unanimous opinion authored by Chief Justice Roberts. The Court began by reviewing some religious history and concluded that the Religion Clauses, in combination, required that the federal government "would have no role in filling ecclesiastical offices." (15) Based on this principle, the Court recognized the ministerial exception for the first time. The Court explained why the application of antidiscrimination law to a dispute between a church and minister violated the Religion Clauses in these terms:

   By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government...