Reconsidering Free Exercise: Hosanna-Tabor v. EEOC

January 13, 2012
Guest Post

By Leslie C. Griffin, Larry & Joanne Doherty Chair in Legal Ethics, University of Houston Law Center


The EEOC and Cheryl Perich lost 9-0 in the Supreme Court when the Court dismissed schoolteacher Perich’s Americans with Disabilities Act [ADA] lawsuit against Hosanna-Tabor Evangelical Lutheran Church and School. The Court for the first time approved the ministerial exception, a rule that the state and lower federal courts had used for forty years to dismiss lawsuits by “ministers” against their religious employers, including churches, elementary and secondary schools, universities and hospitals.

One of the arguments in the amicus brief I filed on Perich’s behalf concerned the Court’s leading free exercise precedent, Employment Division v. Smith. In Smith, the Court held that two Native American drug counselors who used peyote in a religious ritual could be denied unemployment compensation benefits because the criminal laws prohibit drug use. The most famous language from Smith is that all citizens are subject to “neutral laws of general applicability” because to permit exceptions from the criminal law “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Many supporters of religious freedom detested Smith for its incursion on free exercise. In other words, they believed that religious freedom should trump the law. In contrast, I agreed with Smith’s holding that religious belief should not be superior to the law of the land. I defended Smith because I think our constitutional system depends on a shared system of law. To exempt religious citizens from the laws undermines the rule of law. For the ministerial exception, I argued that, just as Alfred Smith had to obey neutral drug laws of general applicability, so too did Hosanna-Tabor Evangelical Lutheran Church and School and other religious employers have to obey the antidiscrimination laws.

Chief Justice John Roberts’ opinion for a unanimous Court squarely rejected that argument. Although the Chief Justice conceded that the ADA is a neutral law of general applicability, which presumably could be applied to Hosanna-Tabor under Smith, he quickly distinguished Hosanna-Tabor from Smith:

a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

This is a strange argument in the context of the ministerial exception. In terms of religious freedom, the ingestion of peyote is a profound religious ritual with a long American history predating the Constitution. In sharp contrast, the ministerial exception involves cases where employees allege disabilities discrimination, retaliation, pregnancy discrimination, sexual harassment, hostile work environment, unequal pay, race discrimination, gender discrimination, and other civil rights violations. Women clergy, for example, sue for pregnancy discrimination, sexual harassment, hostile work environment and unequal pay. Other ministers sue for disabilities discrimination. Many of these “ministers” have been schoolteachers or non-ordained personnel who did not realize they were “ministers” until their lawsuits were dismissed.

In other words, many of the ministerial exception cases do not even involve a religious dispute. It seems odd that an individual’s religious ritual would not enjoy First Amendment protection while a non-religious dispute among church members would. Nonetheless, in one of the most surprising parts of the opinion, the Court held: “The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful — a matter ‘strictly ecclesiastical,’ [citations omitted] — is the church’s alone” (emphasis added).

Thus the Court did not protect religious freedom by refusing to take sides in a religious dispute, as it had done in its past property cases. Instead, it ruled that religious employers enjoy absolute First Amendment protection to dismiss their “ministers” even when no religious issue is involved. Or, in other words, religious freedom trumps the antidiscrimination laws even when no religious dispute is at stake.

The Court appears to have lost sight of individual religious freedom. All the ministerial exception cases involved religious individuals who were attempting to practice their faith. Yet their concerns were dismissed in favor of a rule that always favors the institution. The Court blithely writes that after forty years we know that the ministerial exception “has not given rise to the dire consequences predicted by the EEOC and Perich.” Yet the consequences of the exception have been dire for every individual employee whose rights were trampled by a religious employer and who then lost her day in court — and her job.

The Court’s opinion relies heavily on a constitutional history that emphasizes the historical evil of the government appointment of ministers that led to the First Amendment. Absent from the opinion and the concurrences is any caution that powerful religious organizations may harm individuals and that the founding generation feared the abuse of power by churches as well as the state. Responsible church leaders are now urging churches not to read the case as a license to discriminate against their employees and reminding them of their moral obligation to their employees.

It remains to be seen whether leaving individual civil rights to churches’ moral obligations rather than the courts of law has dire consequences for employees of religious organizations.