The Court’s Upcoming Religious Freedom vs. Antidiscrimination Law Case

Wednesday, the Court will be hearing Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an important religious freedom case.

Federal and state antidiscrimination laws ban discrimination in employment based on race, ethnicity, religion, sex, age, disability, and other characteristics (some of which vary from state to state), such as sexual orientation and marital status. But many religious groups hold beliefs that limit the ministry in certain ways: Catholics exclude women. Some groups insist that their ministers be of a particular race. Some might reject gays and lesbians as ministers. Catholics discriminate based on marital status. (Of course, nearly all religious groups also insist that ministers belong to the religion, but there’s a special statutory antidiscrimination law exemption that expressly allows religious groups to discriminate based on religion when choosing any employee, minister or not.)

Moreover, even when there are no such official belief-based requirements — for instance, when someone claims he was rejected as an applicant for a job as minister because of race, and the church denies that race was a factor in the decision — a discrimination claim by a minister may require courts to evaluate things that courts shouldn’t be evaluating, such as a person’s fitness for the ministry. After all, if someone claims he was discriminated against based on (say) race, a standard way of showing such discrimination is that he was treated worse than people of another race who were equally or less qualified. Relatedly, one could argue that the hiring decision can’t be plausibly explained by the application of hiring criteria other than race. Yet the Establishment Clause has generally been read as barring excessive government entanglement with religious matters, and deciding whether a would-be minister is more or less qualified than others would indeed likely lead to such excessive entanglement, because ministerial qualifications are an inherently religious matter. Likewise, deciding whether the defendant’s explanation for the decision is pretextual similarly requires secular evaluation of which religious decisions are reasonable, something courts generally can’t do. “We prayed, and we feel God told us to hire one applicant rather than another” is an argument that’s hard for secular courts to reasonably evaluate.

More broadly, a church’s decision about who is to speak for it is a foundation for the church’s ability to promulgate its teachings the way church members or leaders want to see them promulgated. For all these reasons, courts have generally held that churches have a constitutional right to discriminate based on any criteria they wish — not just religion, but also race, sex, and other criteria — in hiring ministers or employees who have at least some minister-like duties. See, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir. 1996); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985).

The main question in Hosanna-Tabor is how far this “ministerial exception” to antidiscrimination law extends to employees who aren’t primarily ministers in the sense of people who perform the sacraments or preach sermons. In Hosanna-Tabor itself, the employee was a schoolteacher who taught some religious subjects (but not exclusively religious subjects), and who was herself a member of the clergy, in a job category where clergy members were preferred as teachers (though the church at times hired non-clergy for the task as well). [UPDATE: To quote the petitioner’s brief, “Perich taught religion classes four days a week, led students in prayer three times a day, led students in daily devotional exercises, and attended a school-wide chapel service with her students every week.”]

I was happy to sign on to an amicus brief in the case that proposed a rather broad definition of the ministerial exception; it’s the amicus brief that is chiefly on behalf of the National Council of the Churches of Christ, the Baptist Joint Committee for Religious Liberty, the Queens Federation of Churches, the National Association of Evangelicals, and the Christian Legal Society, drafted by Profs. Rick Garnett, Tom Berg, Carl Esbeck, as well as K. Hollyn Hollman and Melissa Rogers of the Baptist Joint Commitee and Kim Colby of the Christian Legal Society. If you’re interested in the case, have a look at the brief, or at the other briefs, collected by SCOTUSblog. (For part of my thinking about why the ministerial exception is sound even after Employment Division v. Smith, see this section of my A Common-Law Model for Religious Exemptions article, though I think one could supplement that with arguments based on the Establishment Clause and the freedom of expressive association.)

UPDATE: I originally said, in the second paragraph, “As I understand it, some streams of Judaism insist that a rabbi be ethnically Jewish, and exclude converts to Judaism,” but it now appears that I was mistaken, so I deleted the sentence. The removal of this example doesn’t change the analysis.