"Civil Rights", "Religious Wrongs", and the Ministerial Exception

Prof. Vivian Berger argues here that "religious rights" can be "civil wrongs", and so urges the Court to reject the ministerial-exception claim in the upcoming Hosanna-Tabor case.  I agree with the first sentence of Prof. Berger's piece:

On Oct. 5, the U.S. Supreme Court will hear arguments in a very significant case that pits a Lutheran parochial school's assertion of First Amendment rights against the claims of the Equal Employment Opportunity Commission and a fired teacher, Cheryl Perich, of violations of the Americans With Disabilities Act (ADA).

Otherwise, I'm afraid I think her arguments miss the mark.  Just a few points:  First, Prof. Berger says that "Hosanna-Tabor illustrates a recurring tension between two bedrock guarantees: the religion clauses of the First Amendment and the civil rights laws."  But, these are not, as I see it, two similarly "bedrock" guarantees.  That is, the Constitution of the United States forbids governments from interfering with religious freedom (in certain ways); it does not forbid non-governmental employers from discriminating on the basis of age or disability nor does it require Congress to exercise its own powers to forbid such discrimination.  Please don't (intentionally or negligently) misunderstand my point here:  Of course our laws against employment discrimination by private employers are important and promote the common good.  But this case is about a particular constraint -- i.e., the First Amendment -- on the government; any nondiscrimination laws -- even ones we really and rightly like -- must, in order to be valid (let alone "bedrock"), comply with that constraint.

Next, Prof. Berger asserts that "[e]ven if redressing Perich's injury might incidentally burden the church's rights to choose employees who engage in important religious work and to control its religious message, the government's compelling interest in eradicating discrimination ought to trump these."  Obviously, the words "incidentally" and "compelling" are doing a lot of work here.  But, again, injury done to the church's religious-freedom rights would hardly be incidental in this case, and it is far from clear that the means being employed -- i.e., applying nondiscrimination laws to second guess religious institutions' decisions about who should be their teachers, ministers, and leaders -- is necessary to the substantial advancement of the government's compelling interest. 

Third, Prof. Berger concludes with this:

In sum, the Court should reject Hosanna-Tabor's overbroad position and render unto Caesar what is Caesar's by affirming Perich's right to freedom from retaliation — which is enshrined in laws inspired by constitutional guarantees of due process and equal protection.

I agree entirely that the Court should, in this case, keep Caesar to what is Caesar's.  But, the point is, there are "things that are not Caesar's."  These things include "the authority to decide who should be a minister."