Reflections on Hosanna-Tabor.

AuthorMcConnell, Michael W.

The unanimity and the smooth, no-heavy-lifting style of Chief Justice John Roberts's opinion in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (1) might give the impression that it was not a difficult case under past doctrine. Not so. For more than twenty years after the Court's decision in Employment Division v. Smith (2)--known as the "peyote case"--lower courts and academic observers had been wondering how to deal with the question of clergy hiring. (3) It is intuitively obvious to anyone with an understanding of American constitutional values that the Roman Catholic Church (and others including Orthodox Judaism, Eastern Orthodoxy, Islam, and many conservative Protestant denominations) must have a right to hire as clergy only men, just as other religious traditions may enforce other requirements seemingly at odds with secular law. Surely the separation of church and state protects the ability of religious groups to decide for themselves who should serve as their priest, pastor, or imam. Any other answer would generate a constitutional crisis. Yet Title VII and many state equivalents prohibit sex discrimination in employment, (4) and there is no statutory exception for religious employers.

Hosanna-Tabor did not involve the all-male clergy. It involved the dismissal of a minister whose primary duties were as a primary school teacher, allegedly in retaliation for asserting rights under the Americans with Disabilities Act. (5) But the underlying principle was the same. The questions presented were, first, whether the employment discrimination laws may constitutionally be applied to the hiring or firing of ministers, and second, how to define the reach of the ministerial exemption if it exists. (6)

The private plaintiff and the federal Equal Employment Opportunity Commission (EEOC) relied heavily on Smith. (7) In Smith the Supreme Court ruled that Oregon's ban on sacramental peyote use was valid under the Free Exercise Clause of the First Amendment. (8) More generally, the Court held that the Free Exercise Clause, the most natural source for a right of churches to hire or tire ministers without governmental interference, does not apply to neutral laws of general applicability. (9) The two challengers to Oregon's ban, both members of the Native American Church, had lost their jobs after ingesting peyote for sacramental purposes at a ceremony of their Church and were deemed ineligible for unemployment compensation because they had been discharged for work-related "misconduct." (10) On these facts, the Supreme Court declined to declare Oregon's prohibition impermissible, rejecting the claim that the Free Exercise Clause mandates religious exemptions from--and thus, gives protection against--neutral laws of general applicability. (11) Although the Court said otherwise, most observers regarded this holding as departing from earlier cases, notably Sherbert v. Verner (12) and Wisconsin v. Yoder. (13)

As a longtime critic of the Smith decision, (14) I would have preferred that the Court modify or overrule that decision, which would open up a straightforward way to reach the correct result in Hosanna-Tabor. It is evident, however, that the Supreme Court is too deeply invested in Smith to entertain the possibility of reconsideration.

  1. REACHING THE RIGHT RESULT: ALTERNATIVE DOCTRINAL AVENUES

    To lawyers working on Hosanna-Tabor before briefing and argument, there appeared to be three plausible doctrinal paths to reaching a decision in favor of the church without contradicting the holding of Smith. First, the Court could hold that the First Amendment's Establishment Clause, rather than the Free Exercise Clause, protects the right of churches to decide who would serve as their clergy. The Establishment Clause has never been interpreted to exempt neutral laws of general applicability, so it was available as a doctrinal hook to support the argument that churches can choose their clergy without limitation of secular laws. Deciding Hosanna-Tabor on the basis of the Establishment Clause also would allow the Court to distinguish Hosanna-Tabor from Smith, which the Court decided as a Free Exercise Clause case. (15)

    Looking solely at Supreme Court precedent, however, the Establishment Clause would appear to be an unlikely avenue for upholding a religious exemption from the antidiscrimination laws. (16) Under the Lemon test, the Establishment Clause is primarily used to strike down laws involving governmental endorsement of religious symbols or messages, coercion or encouragement of religious practices, aid to religion, or government discrimination in favor of some religions over others. (17) It had never been used to strike down a law merely because it intruded too deeply into the autonomy of religious organizations. To be sure, the "effects" prong of the Lemon test spoke of "advanc[ing] nor inhibit[ing] religion," (18) but every actual case was one of advancement. Inhibition of religion was left to the Free Exercise Clause, which, as we have already seen, does not protect against neutral laws of general applicability.

    The second plausible doctrinal path was to locate the right of churches to decide who would serve as clergy within the exception, recognized in Smith, for actions that are based not on a general rule but on "individualized governmental assessment of the reasons for the relevant conduct." (19) The Court in Smith held that an "individualized government assessment," particularly as it pertained to employment compensation claims, still was subject to scrutiny under the Free Exercise Clause of the First Amendment. (20) The Court recognized this doctrinal wrinkle as a way to avoid overruling its holding in Sherbert v. Verner. In Sherbert a worker was fired for refusing to work on Saturday, which was her Sabbath. (21) The Court held that the state could not constitutionally deny unemployment benefits because the standard for eligibility--whether the worker refused "suitable" available work for "good cause'--hinged on an individualized assessment of the particular circumstances. (22)

    The "individualized assessment" exception seems to apply in Hosanna-Tabor and other ministerial exemption cases. In almost every disparate-treatment employment discrimination case, the employer asserts a justification for its action, and the plaintiff-employee challenges that justification on the ground that it is pretextual. (23) In the secular cases involving pretext claims under Title VII, courts look at such things as: Is the employer being consistent? Did it treat other employees the same way? Did it apply this rule across the board? Does the rule make very much sense? Is it supported by any actual evidence? (24) As a result, almost every one of these cases ends up being decided on the basis of an individuated determination of whether the adverse employment action in the case was actually justified under the particular facts. It follows that Hosanna-Tabor could fit within this exception to Smith.

    The third plausible doctrinal path was to ground the right in the freedom of association, which is the freedom to associate with others for expressive activity, including speech or religious exercise. (25) The Supreme Court refers to "freedom of association" even though those words do not appear in the First Amendment. Professor John Inazu persuasively argues that freedom of association is derived from freedom of assembly, (26) but the Court appears to derive the right as one "implicit" in the freedom of speech. (27)

    As freedom of assembly was understood and applied by the Framers in the 1790s, the right included not only the freedom to gather together on a miscellaneous basis but also the ability to gather together deliberately with a group of one's own choosing. (28) In the 1790s, Democratic Republican clubs were highly unpopular with Federalists, and many Federalists believed that the government had the right to either censure or shut down these clubs because they were self-selected--that is, the Democratic Republican clubs chose their own members, which the Federalists viewed as a seditious activity. (29) The verdict of history has been that the Federalists were wrong and that the right of assembly includes the right of deliberately selfselected organizations. (30) Individuals have a right to gather with people of their own choosing, with their own speakers, and with their own leadership. (31)

    The leading case for the freedom of association is Boy Scouts of America v. Dale, (32) which held that Boy Scout troops have a constitutional right to exclude open homosexuals from scoutmaster positions. (33) If the Boy Scouts have the right to control who are going to be scoutmasters, it follows that the Lutheran Church likewise has the right to decide who its ministers will be. The problem with this theory, however, is that a group may exclude members or leaders only when it can show that its criterion for exclusion is directly related to the group's expressive purpose. (34) This requirement opens the door for plaintiffs to engage in wide-ranging discovery regarding the church's...

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