"Protecting the Rights of Religious Communities"

Here is a short post I did, for Liberty magazine's website, on the ministerial-exception case.  Others will be posting soon, too.

Almost everyone agrees (as, I believe, they should) that the First Amendment imposes some limits on the application of anti-discrimination laws to the employment relationship between churches and their ministers. Indeed, if the "separation of church and state" means anything, it would seem to mean that the government cannot tell a religious community who will transmit its teachings, resolve doctrinal questions, conduct and plan liturgy and worship, and lead its members.

The hard question, then, is how to craft reasonably clear, usable doctrines that will capture, and give effect to, the basic principle that one dimension of religious freedom is the freedom of religious communities to choose their own ministers. It would not be enough to say that only "ordained, full-time clergy" are covered. (Indeed, such a narrow exception would, in practice, treat some religious traditions and communities worse than others.) On the other end of the doctrinal spectrum, it is probably not necessary to say that "every person who is employed by a religious institution" is a "ministerial employee." The doctrine – in this case, the "ministerial exception" – needs to be crafted with an eye toward actually protecting the values that are at stake, and avoiding the pitfalls that come with government intrusion into religious matters.

In the Hosanna-Tabor case, the former teacher who brought the case should clearly have been covered, and the Court will almost certainly so rule. To say that a teacher who serves as a "commissioned minister", who teaches some religious-education subjects, and who regularly leads students in prayer and worship is not covered because the total number of hours she spends on "secular", as opposed to "religious", tasks is to completely miss the point of the exception and to dramatically under-protect the religious-freedom values that are at stake. This particular case, in other words, should be an easy one.

But, what should "the rule" be? Answering this question, in a way that will be helpful to judges deciding other cases, will be a challenge. At a minimum, though, the rule should protect the rights – which the Court has recognized in other cases -- of religious communities to govern themselves, to resolve religious questions, and to select religious spokespersons. It should avoid entangling secular courts in religious disputes or interfering with the core freedom of religious communities to select who will perform spiritual and religious functions.

To say that the ministerial exception is important, and that it should be respected and broadly understood, is not to condone "invidious" discrimination, or to imagine that religious institutions are somehow "above the law." (They are not.) It is to say, though, that there are some questions that secular courts lack the power – not just the capacity – to answer.