Thursday, January 12, 2012

Ministers and Peyote

By Mike Dorf


Yesterday, in the Hosanna-Tabor case, the Supreme Court found that the federal anti-discrimination laws contain a tacit "ministerial exception" that is broader than any exception that the EEOC was prepared to recognize.  Accordingly, the Court ordered the dismissal of a lawsuit under the Americans With Disabilities Act (ADA) by a teacher at a religious school on the ground that the church school at which she taught considered her a minister.  To subject the church to federal anti-discrimination law in this case would be tantamount to permitting lawsuits against the Catholic Church for refusing to ordain female priests, the Court thought.


The Court had roughly three choices in Hosanna-Tabor: 1) No ministerial exception; 2) a relatively narrow ministerial exception that only covers clergy who lead congregations in the way that the minister of a typical Protestant sect does; or 3) a broad ministerial exception that covers nearly anyone that a religious congregation holds out as a minister.  The Court opted for the third route in an opinion by CJ Roberts that was somewhat puzzling in at least two ways.


First, the majority opinion is quite vague on the contours of the ministerial exception it recognizes.  As Justice Alito pointed out in a concurrence joined by Justice Kagan, a great many religious organizations do not have any officials called "ministers," and so it will not be clear when such a religious organization is holding someone out as a minister.  Justice Alito and Justice Kagan would have defined the ministerial exception in functional terms.  Justice Alito wrote that it "should apply to any 'employee' who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith."  Although we can imagine hard cases arising under that test too, at least it is a test.


The majority opinion was also somewhat surprising in clearly grounding the ministerial exception in the Constitution's Religion Clauses.  The Court could have said that Congress can be presumed to legislate against the background context of decided cases, and as the lower courts have long found a ministerial exception, the ADA and other federal anti-discrimination laws should be presumed to incorporate it.  But instead, the Court said that the Religion Clauses require the ministerial exception.  I found that route to the decision surprising because the constitutional argument is in considerable tension with the Court's ruling in Employment Division v. Smith, where the Court established the principle that when a law has the effect of forbidding some religious practice, there is no Free Exercise problem unless the law specifically singles out that religious practice.


One might think that the ADA is a general law that targets discrimination against the disabled (and retaliation against persons who bring claims under the ADA) without regard to the religious or non-religious character of the discriminator (or retaliator), and that therefore there is no constitutional problem with its application to a church school.  To be sure, that would also mean that the Catholic Church could be required by Title VII to hire female priests, but if that result seems harsh, one could rely on Congress to fashion a ministerial exception.  Or, as I am suggesting, one could impute to Congress the intent to include a ministerial exception in Title VII and other anti-discrimination laws.


So how did the Court in Hosanna-Tabor reconcile its grounding of the ministerial exception in the Constitution with Smith?  Here is the entirety of the Court's analysis on the point:
The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), precludes recognition of a ministerial exception.  In  Smith, two members of the Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregon law. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”   Id., at 879 (internal quotation marks omitted). It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But 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”). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.
With due respect: huh???  The quotation from Smith strikes me as simply beside the point, or worse.  When the Court said in Smith that government may not "lend its power to one or the other side in controversies over religious authority or dogma," it was talking about a distinct line of cases involving disputes over church property--as was made clear by the citation of three such cases (and no other cases) immediately following that language.  Yet the church property cases are not examples of churches and other religious entities being exempted from general laws.  Quite the contrary, the principle of those cases is that secular courts ought not to decide specifically theological questions, such as which of two groups claiming to be the successor to a church that has undergone a schism is the "real" church.


The church property cases are complicated but their core teaching is that the courts ought to try to apply general rules that do not specifically advert to religion.  Yet in Hosanna-Tabor, CJ Roberts cites the church property cases (indirectly via the Smith Court's summary of them) for nearly the opposite proposition: that general rules that do not advert to religion must be set aside when they affect "an internal church decision that affects the faith and mission of the church itself."


Moreover, the Court's newly-fashioned distinction is itself puzzling, or at least fuzzy.  Suppose that a sect of the Native American Church selected its ministers by a ceremony in which novices, in order to be ordained, must ingest peyote.  Could participants in that ceremony be imprisoned, and thus rendered unable to perform their duties as ministers, pursuant to the rule of Smith, or would they be protected under Hosanna-Tabor on the ground that the use of peyote to select ministers is part of "an internal church decision that affects the faith and mission of the church itself."  Here, the "physical act" of peyote use is also integral to the church decision.


I suppose it's possible to say that while Smith disavowed a disparate impact test for Free Exercise, it did not disturb the Court's Establishment Clause jurisprudence, and that the application of general laws in ways that affect internal church governance risks violating the anti-entanglement branch of the Court's Establishment Clause jurisprudence.  The majority opinion in Hosanna-Tabor arguably leaves that open as a possibility, but only inadvertently, it seems.  Throughout the opinion the Court applies "the Religion Clauses," rather than Free Exercise or Establishment alone.  If the Court were distinguishing Free Exercise (subject to the Smith rule) from Establishment (not subject to Smith), one would have expected the Justices to say so.


Whatever one thinks of the substance of the Court's ruling in Hosanna-Tabor, the opinion must be given low marks for craft.  Perhaps because the Justices were unanimous in the result, none of them had the proper incentive to scrutinize or criticize the majority's reasoning.

16 comments:

Ian Bartrum said...

Very interesting post, Michael. I would just make two points in regard to Smith.

First, (and I know the Court doesn't go this way) the ADA is general, neutrally applicable and FEDERAL...the Religious Freedom Restoration Act, which overrides Smith in an important respect, still applies to Federal laws. I know there's been some dispute about whether RFRA applies to suits between private parties, and that may be why the Court didn't go there, but I think that dispute it less relevant in cases where the EEOC is a party.

Second, Smith has always been a very suspect decision. I don't think the Court's (likely continued) efforts to distinguish it, no matter how shaky the distinction may appear, should come as a surprise.

Michael C. Dorf said...

Ian,

Both good points. On the first point, (as you acknowledge) if the Court were applying RFRAF (as I like to call RFRA as applied to the federal govt), the result should have been to apply strict scrutiny to the ADA's application to the church, rather than giving the church a free pass. And I think this highlights my point about judicial craft: The Court could have gotten there via RFRAF but didn't make the effort. The same is true re weakening Smith, which could be accomplished more directly.

Ian Bartrum said...

Fair enough. I think we completely agree on the judicial craft point...

And I really like RFRAF--I may have to appropriate that (with proper attribution, of course) :)...

Michael C. Dorf said...

Well, if you're giving proper attribution, it should go to Ed Blatnik, now an attorney at MoFo in NYC). Ed's 1998 Columbia Law Review Student Note (98 Colum. L. Rev. 1410) coined the term, as far as I know. (Ed was my student at the time, but he came up with the term on his own.) The Supreme Court later tacitly rejected his substantive view--that RFRAF was invalid along with RFRAS.

JHW said...

The distinction between the religious liberty claims in Smith and Hosanna-Tabor is the difference between accommodating the application of religious norms to secular matters (Smith) and respecting the application of religious norms to religious matters (Hosanna-Tabor). Smith would only control the issue in Hosanna-Tabor on the assumption that what determines whether certain conduct is a secular or religious matter is simply the absence or presence of a religious norm relevant to the individual engaging in the conduct; that would collapse the distinction. But what I take to be Justice Roberts' point, though he expresses it poorly, is that there are other ways to make this determination.

Here is one, that I think roughly matches what the Court has in mind. Though some people think that peyote smoking is a religious obligation, there is nothing inherently religious about peyote smoking; it is perfectly reasonable to make distinctions about what to ingest or inhale based on secular norms, and most of us do so most of the time. The hiring of employees who serve an essentially religious function, however, is an inherently religious matter, by virtue of that function--one that is (according to the Court, and plausibly according to the First Amendment) quite rightly and properly subject to the internal religious norms of a religious community. The point of Hosanna-Tabor is that the government cannot second-guess those norms, or their application in a particular case, which would ultimately amount to the same thing.

Joe said...

The Court didn't want to rely on merely freedom of association, noting that that protects both secular and religious associations.

The opinion and Alito's concurrence (the not likely to occur often Alito/Kagan pairing) underlines the importance of religious association autonomy, even if the property cases might not make the point that well.

But, religion is also individualistic. As to the last comment, hiring of employees itself isn't religious, it is religious when the employees serve a religious function. Peyote smoking is religious too in context.

Institutional autonomy apparently remains an area where ACTS gain specific protection under the Free Exercise Clause. This seems to favor institutional religions particularly depending how different Alito and Thomas' concurrences are to the main.

Jay said...

"Though some people think that peyote smoking is a religious obligation, there is nothing inherently religious about peyote smoking; it is perfectly reasonable to make distinctions about what to ingest or inhale based on secular norms, and most of us do so most of the time."

Why is the court authorized to make the determination that there is nothing inherently religious about ingesting peyote? Is this not dictating to a religion how it is expected to believe? Do you believe, or do you think that the Chief Justice believes, that the Supreme Court would have the right to prohibit communion in a Catholic church (assuming, of course, that alcohol as again illegal)?

It seems to me that telling members of the Native American Church that taking peyote is not really a sacred act is telling them that what they believe is wrong. I do not understand why the Court has the right to do that.

Sean said...

Though some people think that peyote smoking is a religious obligation, there is nothing inherently religious about peyote smoking; it is perfectly reasonable to make distinctions about what to ingest or inhale based on secular norms, and most of us do so most of the time. The hiring of employees who serve an essentially religious function, however, is an inherently religious matter

I think the distinction you are drawing between secular and religious matters is ultimately untenable. I grant you that smoking peyote is not an inhenerently reglious matter. Neither, however, is hiring an employee. What is inherently religious, I will grant you, is hiring an employee to serve an inherently religious function. but that is trivially true. The same can be said of smoking peyote (or performing any other act) for an inherently religious purpose. But if this is the case, then the distinction between acts that are inherently religious and acts that are not inherently religious cannot reasonably serve as the basis for carving out a sphere of protected religious matters.

Paul McCain said...

Interesting comments, but I think you are missing many points.

This case affirms what the First Amendment of the US Constitution protects: the right of the Church and religion in general to operate free from the interference of the government.

There are more thoughts about this case on my blog site, for those who are interested in the “church side” of things on this:

http://cyberbrethren.com/2012/01/13/more-thoughts-on-the-tabor-supreme-court-decision-note-inside-baseball-type-lutheran-stuff/

Joe said...

"the right of the Church and religion in general to operate free from the interference of the government"

The problem there is that "in general" means there are limitations. What are they? Why aren't generally applicable anti-discrimination laws an exception?

Oregon v. Smith "interfered" with the right, in the eyes of the belivers one handed down by God, actually the obligation, to take part in a sacramental act.

The comment therefore is somewhat unsatisfactory. Respectfully, I think you might be missing something too.

Bob Hockett said...

Many thanks for this, Mike. And please let me add my voice, again with what ever respect might be due, to the 'huh?' That CJ Roberts, in particular, would attempt to distinguish Smith in the manner he does here seems to me just spectacularly ironic. Mr. Roberts, of course, purports to be a devout Roman Catholic; and if there is any doctrine-cum-practice that is 'most' definitive of that tradition it is that worship is to be centered upon the sacrament of the eucharist. The latter, for its part, in turn constitutively involves the ingestion of bread and wine, in which Christ is said to be 'really present' (per the doctrine of 'transsubstantiation'). Were 'Roaring '20s' style prohibition to be reinstituted, then, such that the drinking of wine in the eucharistic celebration ended up being illegal, the very act that is most definitive of doctrinally prescribed Catholic worship would effectively be outlawed - by a neutral law of general application. I don't see how Mr. Roberts could deny this, nor can I imagine his upholding Smith in such case by blandly observing that 'there is nothing inherently religious about wine drinking.' But if this is so, then how can he be taken here not to be blandly dismissing Native American religious ritual in a context in which he would not thus dismiss Roman Catholic ritual? Is this inadvertant bigotry, or something worse? God help us.

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if the Court were applying RFRAF (as I like to call RFRA as applied to the federal govt), the result should have been to apply strict scrutiny to the ADA's application to the church, rather than giving the church a free pass. And I think this highlights my point about judicial craft: The Court could have gotten there via RFRAF but didn't make the effort. The same is true re weakening Smith, which could be accomplished more directly. www.buywindows7keys.com
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