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.