The Obama Administration's Brief in Hosanna-Tabor v. EEOC

I understand that the government’s role in litigation is to defend, well, the government. But the Obama Administration’s brief in Hosanna-Tabor v. EEOC (the upcoming Supreme Court term’s blockbuster ministerial exception case) goes beyond the narrow issue of whether the ministerial exception should apply to the facts of the case and takes the extravagant position that there is no general ministerial exception (no "categorical" or "prophylactic" rule, to use the brief's peculiar formulation) under the First Amendment’s religion clauses. (There’s been some speculation that the brief’s argument is limited to the ADA anti-retaliation claims of the employee, but it’s difficult to see why the logic of the brief’s argument is so limited.) As pointed out by Ed Whelan, this puts the Administration at odds not only with the U.S. Conference of Catholic Bishops, the Church of Jesus Christ of Latter-Day Saints, the Lutheran Church-Missouri Synod, and the Union of Orthodox Jewish Congregations, but also with (among others) the Episcopal Church, the Presbyterian Church (U.S.A.), the United Methodist Church, the United Church of Christ, the Evangelical Lutheran Church in America, the American Jewish Committee, the Union for Reform Judaism, the Muslim-American Public Affairs Council, United Sikhs, and the Society for Krishna Consciousness, all of which filed amicus briefs on behalf of Hosanna-Tabor arguing for a robust ministerial exception as a necessary component of religious freedom. (See especially the brief by our own Tom Berg and Rick Garnett, the brief by Christopher Lund for the Lutheran Church-Missouri Synod, the brief by Michael McConnell for a consortium of Protestant churches, and the brief by my former colleagues at Williams & Connolly for the USCCB, the LDS Church, the Orthodox Union, and the Episcopal Church.) Indeed, the Administration takes a position more hostile to religious freedom than the ACLU and Americans United for Separation of Church and State, which acknowledge the ministerial exception in their amicus brief but argue that it should not apply to cases in which the alleged discrimination or retaliation is unrelated to religion.

What remains of the right of religious groups to select their ministers? Don’t worry, the Administration says: 

Under different circumstances, a religious employer would be able to successfully invoke a freedom of association defense to application of the civil rights laws. The availability of such a defense provides a full response to petitioner’s concern that the operation of generally applicable employment discrimination laws “would prohibit many common religious practices,” including, for example, “the all-male clergy among Catholics and Orthodox Jews.” Pet. Br. 18. As an initial matter, it is unclear whether Title VII would permit claims challenging such gender-based qualifications because gender could well be considered a bona fide occupational qualification for such positions. See 42 U.S.C. 2000e2(e)(1); Dothard v. Rawlinson, 433 U.S. 321, 332-337 (1977). But assuming arguendo that the statute otherwise permitted such claims, religious employers could defend against them on the ground that compelled ordination of women would be impossible to square with their religious view that only men should occupy such roles. In light of the deeply embedded and long-standing nature of such ecclesiastical rules, the government interest in enforcement of anti-discrimination laws would necessarily give way. Cf. Dale, 530 U.S. at 656659 (state interest not sufficiently compelling to outweigh Boy Scouts’ right to shape message on homosexuality); see also Smith, 494 U.S. at 882 (“[I]t is easy to envision a case in which a challenge on freedom of association grounds would likewise be reinforced by Free Exercise Clause concerns.”). Brief for Federal Respondent, 31.

There’s a lot to say about this argument and much else in the brief, but I’ll make two points for now. First, if this is really EEOC’s position (it’s “unclear”) about the scope of the bona fide occupational qualification exception to a Title VII gender discrimination claim, I’d like to hear more from EEOC about how an all-male clergy requirement meets the prevailing (and ordinarily quite narrow) standard for a BFOQ (the cite to Dothard v. Rawlinson—a prison guard disparate impact case—doesn’t help much). Is EEOC's position that a religious employer doesn’t have a constitutional defense against a claim of gender discrimination in a ministerial employment decision, but the religious employer can self-define the qualifications for ministers in such a way that consideration of sex is essential to the employment function of a minister and thereby get the benefit of a BFOQ defense? And in what other contexts would that argument for a BFOQ pass the laugh test?

Second, there’s something striking (and downright odd) about an argument that the religion clauses of the First Amendment don’t protect the right of religious groups to select ministers, but the right of free association somehow does. I am all in favor of a robust freedom of association, but, as argued by John Inazu, current freedom of association doctrine rests on a tenuous constitutional basis somewhere amid freedom of speech. And while I agree with Dale, it’s remarkable that the Administration is arguing that a hotly contested decision that has been subject to substantial scholarly criticism somehow provides the authority for what remains of the freedom of the church with regard to selection of ministers. Alas, instead of a constitutional limitation on the power of the state to interfere in the ministerial employment decisions of religious bodies and rooted in nine centuries of Western political theory, the Administration's view implies that such freedom--in those rare instances where it exists at all--is merely the provisional outcome of weighing the state’s anti-discrimination interest against a religious institution's right to expressive association.