Perich was an elementary school teacher at Hosanna-Tabor when she developed narcolepsy and went on disabilities leave. Although the school promised she would be able to return to her job, after Perich received a doctor’s clearance to return to work school officials asked her to voluntarily resign her position. She refused and threatened to file an ADA complaint with the Equal Employment Opportunity Commission (EEOC). Perich was then fired in direct retaliation for her threat to sue.

Perich’s case went to court only as a retaliation lawsuit; she and the EEOC did not sue for the underlying disabilities discrimination. Only late in the litigation did the church argue that it had religious reasons to fire Perich: because good Lutherans do not sue, Perich was spiritually unfit for her job. That theological position appeared to be at odds with the school’s employment manual, which expressed the Lutheran Church’s commitment to the antidiscrimination laws.

The potential religious dispute between Hosanna-Tabor and Perich over whether good Lutherans may sue set up an interesting contest between religious freedom and secular law: could religious employers keep their employees out of court if they had a religious doctrine against filing lawsuits? In my last post about this case, I phrased the legal question as whether religious institutions are allowed to disobey the law if it conflicts with their religious commitments. Does religious belief trump secular law?

Astonishingly, in dismissing Perich’s lawsuit, the Court handed an even more sweeping victory to religious employers than to give them license to fire employees solely for religious reasons. Instead, the First Amendment now gives religious employers freedom to fire their ministers for religious or non-religious reasons. According to Chief Justice John Roberts’ opinion for a unanimous Court: “The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical,’ [citation omitted]—is the church’s alone.” In other words, the First Amendment protects a religious employer’s absolute right to fire its ministers even when no religious controversy is involved.

That ruling is a complete defeat for secular law as applied to religious organizations. If Perich-2 alleged disabilities discrimination, her case would be dismissed even though the church did not have a theological belief in disabilities discrimination. If Perich-3 alleged age discrimination, her case would be dismissed even though the church did not have a theological belief in age discrimination. If Perich-4 alleged sexual harassment or hostile work environment discrimination, her case would be dismissed even though the church did not have a theological belief in sexual harassment or hostile work environment discrimination. And so forth.

The Court identified some possible situations where ministers might be able to sue, namely “actions by employees alleging breach of contract or tortious conduct by their religious employers,” but left the specific details of such cases for another day. Good lawyers are left to litigate what lawsuits remain to ministers as well as who qualifies as a minister. Unfortunately, many federal and state courts have repeatedly dismissed lawsuits by school teachers and principals, college and university professors, so presumably their claims will continue to fail now that the Court has given its imprimatur to the ministerial exception. Moreover, the concurrences by Justices Thomas, Alito, and Kagan make clear that some justices want the term minister to be broadly defined in a way that is extremely deferential to religious institutions’ authority to define their own clergy.

For now the hard question—at least for those of us who supported Perich and the EEOC—is to figure out why the decision was so sweeping and unanimous that not even one justice recognized an employee’s civil rights against a religious employer. Not even Congress, which frequently follows the political winds about religion, has so broadly exempted religious employers from the ADA’s coverage. Moreover, in the disabilities context, Congress’s actions made constitutional sense. Why give any employer the right to discriminate on the basis of disabilities? Perhaps the rare “We-Believe-God-Hates-the-Disabled Church” would pose a constitutional challenge, but why should a church that opposes disabilities discrimination be allowed to dismiss disabled ministers?

The answer from the Court is that ministers are different. History played a heavy role in the opinion as the Court reached back to Magna Carta to paint a dangerous English history of government-appointed ministers that the First Amendment was drafted to protect. The constant theme of the opinion is that “government appointment of ministers” was such a bad thing in the past that all ministers must lose the protection of the employment laws in the present.

The Court’s reasoning demonstrates the dangers of historical analogy and originalism in resolving contemporary problems. Absent from Hosanna-Tabor is any consideration of constitutional history suggesting that the First Amendment was designed to protect individuals from the powers of the churches as well as the states. Moreover, the idea that government appointment of ministers in Europe should resolve the case of a disabled elementary school teacher in Michigan lacks common, moral, and legal sense. Many of the ministerial exception cases have involved women clergy in Christian denominations in which women’s ordination was not even imaginable at the time of the nation’s founding. To conclude that their pregnancy discrimination cases should be automatically dismissed under a ministerial exception rule rooted in Magna Carta is unacceptable.

Also present in the Court’s opinion was a secondary argument about old case law holding that courts should not take sides in theological disputes. The Court falsely believes it stayed out of theological disputes; in fact it opted always to take the side of religious employers, even in non-theological disputes. This huge victory for religious freedom was freedom for the employer’s side only—and a loss for all the individuals who thought they enjoyed some First Amendment protection within their churches.

In its briefs and at the oral argument, the EEOC valiantly argued that the Court should resolve Perich’s case under the freedom of association protected by the First Amendment. The advantage to rooting the churches’ freedom in association, not religion, is that equal rights would be “enjoyed by religious and secular groups alike.” The Court vigorously rejected the EEOC’s argument as “untenable”:

It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. [citations omitted] That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

It is an equally remarkable view that the labor union or social club is held to the antidiscrimination laws while the religious employer is not. And it is equally remarkable to conclude that religious freedom entitles organizations to disobey the secular law.

Religious employees are now left to the moral obligations of their employers not to discriminate against them. But churches, like all the other institutions whose powers were limited by the Constitution, are not perfect. Secular legal systems are necessary whenever religious moral systems fail. The Framers of the Constitution understood that. The Court forgot that lesson of history when it decided Hosanna-Tabor.

The upshot is that I believe that I can offer a perspective that can fairly claim to be both informed and disinterested. Call what follows an “amicus curiae” brief, from a cleric as to the church, but a layperson as to the law, offered for what it’s worth to those with a close eye on this case.

This is not the place to rehearse the facts or the legal points at issue. The keys to the entire case, as best I can frame them, are whether or not the Supreme Court will affirm a “ministerial exception” that has regularly been asserted by lower courts and that gives churches nearly unlimited discretion with respect to personnel decisions about their ministers and whether or not Cheryl Perich, a former teacher at the school operated by Hosanna-Tabor Lutheran Church (LCMS), truly was a minister. The other much-mooted issue of how central it is to the doctrinal core of the LCMS to claim that ministers must avail themselves of internal, ecclesiastical appeals procedures in lieu of civil court actions is, to my mind, secondary to the point of being a sideshow. If Ms. Perich was not a minister in the full sense of the word and so did not qualify for the “ministerial exception,” the question of whether or not she pursued her grievance as the LCMS requires of ministers is irrelevant. If she was a minister, and there is a “ministerial exception” in the sense affirmed by other courts, then why she was released is also legally irrelevant.

It is at this point that some insider knowledge of the history and polity of the LCMS is helpful. From its beginnings as an assemblage of mid-nineteenth century immigrants from Germany, formally organized in 1847, the LCMS has affirmed that both pastors and those teachers who are formally certified for service in the church’s schools may be “called” as ministers of the Gospel. The entanglement of the LCMS’s understanding of minister with governmental definitions first became a serious matter at the outset of the Second World War, when Synodical officials had to exert considerable effort to have called teachers granted ministerial deferments from the draft. A second entanglement then occurred vis-à-vis the Internal Revenue Service, when the question arose of called teachers’ eligibility for a special benefit known as the “ministerial housing allowance.”  Again, the matter was resolved in favor of including LCMS teachers as ministers.

Two complications came to the fore early in the second half of the twentieth century. One was what to make of teachers in Lutheran schools who were not Synodically-trained and certified (and therefore not eligible for call as ministers), but who often served side-by-side with called teacher-ministers. Given at least the prima facie meaning of an LCMS bylaw adopted in the 1960s, LCMS schools were required to employ only called teachers as a condition of their sponsoring congregations’ membership in the Synod. The other issue (not entirely unrelated in some schools) was what to say of women who were Synodically-trained, certified, and called as teachers, given the LCMS’s opposition to women as ministers, at least in a pastoral role. Over the course of about three decades, from the 1960s through the 1980s, these questions were sorted out in a series of LCMS conventions. Women could not be pastors, but they could be called as teachers, and those so called were ministers and eligible for all associated privileges (such as the exemption of the housing allowance from taxation). Synodical schools were strongly encouraged to employ only called teachers and were further encouraged to see to the Synodical training and certification of those not yet called (a path called “colloquy” that was followed by Ms. Perich in the case at hand), but non-called teachers were officially permitted, albeit in no way as “ministers.”  Finally, largely in response to pressure from the IRS, the Synod established the present, official terminology:  pastors were “Ministers of Religion—Ordained,” while called teachers (and other certified staff, like deaconesses) were “Ministers of Religion—Commissioned.”  While the duties of the two groups differed (as did their status in the Synod—dramatically so), both were “ministers” for both secular purposes (like the IRS and Selective Service) and eligibility (otherwise extended only to congregations, but not laypersons) to be formal “members” of the Synod.

In sum, based on my knowledge of the LCMS, there seems little question that Cheryl Perich qualifies as a “minister” and is subject to the “ministerial exception.”  So what of the latter?  As I understand the matter, the Supreme Court has never itself explicitly defined or affirmed it. Yet I’d be astounded (and more than a little disturbed) were the Court to deny or radically alter its historic meaning, and especially were they to move outside of churches the authority to define who is a minister vis-à-vis a layperson. The justices themselves seem to understand clearly that either redefinition or rejection could have extraordinary unintended consequences vis-à-vis the First Amendment (even if their frame of reference appears to be limited to Roman Catholicism and specifically to the canon law restricting the priesthood to males). “Hard cases make bad law,” as the saying goes, and it seems that in this case the price of keeping the religion clauses of the First Amendment intact is to avert our eyes from a possible egregious abuse of the statutory rights of an individual.

That would be so, if the Supreme Court’s decision in this case truly were the final word on this matter. It is not. The Court will, as it does so often, weigh competing goods and rights and will, almost inevitably, favor one at the expense of the other. The real question to my mind is whether or not Hosanna-Tabor Lutheran Church and School will do right by one who went to considerable effort to become eligible for a call, only to be burned by the consequences of the ministerial status that her additional training and certification enabled. I say this even as I am fully aware that there may be personal personnel factors of which I’m ignorant—I was in university administration long enough to know all too well that sometimes one cannot tell the whole story and simply has to accept being pilloried as a result. But as things stand, the church—and in the world’s eyes this means the whole Christian Church—stands shamed, required to take refuge in legalities in lieu of the care for the hurting and the mutual submission, reconciliation, and willingness to turn the other cheek that the Founder seems to have had in mind.

To my mind, that’s the real danger here and—even at this late legal hour—the real opportunity for witness to what St. Paul once called “a more excellent way.”

In Hosanna-Tabor, Lutheran elementary school teacher Cheryl Perich was preparing for a new school year when she became ill at a summer church picnic. Although Hosanna-Tabor granted Perich a disabilities leave, school officials asked her to resign voluntarily after her doctor cleared her to return to teaching. Perich refused to resign and filed a disabilities discrimination claim with the Equal Employment Opportunity Commission (EEOC). Hosanna-Tabor then fired Perich in retaliation for filing the disabilities claim. Even though the school’s employment manual pledged its commitment to the antidiscrimination laws, Hosanna-Tabor argued that good Christians do not sue and that her EEOC claim disqualified Perich from being spiritually fit to teach at Hosanna-Tabor Evangelical Lutheran Church and School.

Perich then proceeded with a retaliation lawsuit against the school. The major civil rights laws, including the Americans with Disabilities Act (ADA), have antiretaliation provisions that prohibit employers from retaliating against employees who assert their protected legal rights. If the ADA applies, Perich should easily win her case; the school has already stated straightforwardly that it fired her because she filed a claim with the EEOC. That is direct evidence of retaliation. The Supreme Court must decide whether the ministerial exception blocks Perich’s claim or if she can have her day in court to prove the facts of the retaliation lawsuit.

At the oral argument, Justice Stephen Breyer shrewdly focused on the question of whether Perich was informed that good Lutheran employees may not sue:

JUSTICE BREYER: I mean, does anyone explain to her, which she might not have known, that this is a religious doctrine that you are supposed to go to the synod or whatever, and you’re not supposed to go to court? Of course they wanted to fire her because she threatened to sue them. But what I’m wondering is, is there anywhere before the motion for summary judgment where someone explains to her, our motivation here is due to our religious tenet?

Justice Breyer’s question is important because it focuses on employees’ reasonable assumptions that secular employment law should protect their rights. Supporters of the ministerial exception too easily assume that religious employees understand and accept that they abandon their legal rights at their employer’s door.

In contrast, schoolteachers like Perich, as well as the numerous teachers, principals, professors, organists, administrators, and music directors whose lawsuits for race, gender, age, disabilities, national origin, and equal pay discrimination have been dismissed under the ministerial exception, should be entitled to the protections of secular law. For that reason I filed an amicus brief on behalf of Cheryl Perich in this case.

One recurring justification for the ministerial exception has been the “problem” of women priests. The specter of the Roman Catholic Church being forced to ordain women priests has repeatedly haunted discussions of the ministerial exception. Catholic women priests are wrongly used as a justification for the exception. It was unfortunate that the women priests issue became part of the oral argument in Hosanna-Tabor, as it distracts attention from the more important issues at stake in the exception. Four justices—Chief Justice John Roberts and Justices Antonin Scalia, Stephen Breyer and Samuel Alito—raised questions connected to the issue of Catholic women priests.

Let me be clear. No one argues that the courts can force the Catholic Church to ordain women. That argument is a red herring. In the forty years that the ministerial exception has existed, I count only one court case of a Catholic woman who (unsuccessfully) sued to become a priest, but at least ten cases of Catholic women who knew with absolute certainty they were not priests. Yet those women were suddenly ordained ministers when they went to court to enforce their employment contracts against Catholic employers.

In Weishuhn v. Catholic Diocese of Lansing, for example, a case with a cert. petition currently pending before the Court, a Catholic elementary school teacher reported possible sexual abuse of a student’s friend to state authorities as required by Michigan law. Weishuhn was fired for not informing the school principal of her actions. In another case, a Catholic school principal was fired after complaining to the bishop that her priest-supervisor assaulted and battered her. The church successfully asserted that those teachers—who could never be ordained priests—were ministers whose claims could not be reviewed by secular courts. Cases of race and age discrimination, sexual harassment and hostile work environment, and disabilities discrimination and retaliation have met a similar fate. In such cases the ministerial exception protects discrimination instead of religious freedom.

The all-male Catholic priesthood can be protected easily by First Amendment freedom of association and/or a bona fide occupational qualification [BFOQ] in employment law. The Catholic Church teaches that women cannot represent the male person of Jesus Christ. That teaching seems easily to qualify for the expressive association protected by the First Amendment. It also offers a really strong argument for a BFOQ where gender is allowed to be a requirement for the job.

Creating the broad ministerial exception to deal with the issue of an all-male priesthood is like swatting a fly with a sledgehammer. It also distracts attention from the legal protection of women clergy in churches that do ordain women. In the very first ministerial exception case, a female Salvation Army minister sued for equal pay. In later cases, Baptist and Methodist ministers and Jewish rabbis have sued for pregnancy and disabilities discrimination. Male and female ministers have sued for sexual harassment, hostile work environment, and race and age discrimination.

The ministerial exception handles those cases with ease. It says simply: courts may not review employment cases involving ministers.

Why not?

The ministerial exception asserts that clergy should fall completely outside the protection of the employment laws. Why? Why should women clergy be barred from bringing pregnancy discrimination suits? Or male and female clergy be prohibited from suing for disabilities discrimination and retaliation? In worrying about threats to an all-male priesthood the ministerial exception neglects to protect clergy who suffer unlawful treatment. It is troubling to think the First Amendment could be interpreted to rob clergy of the protections of secular law enjoyed by their fellow citizens.

The Court’s controversial decision in Employment Division v. Smith held that religious individuals must obey neutral and generally applicable laws. Now we wait to see if the Court will hold religious institutions to the same standard when it issues its opinion in Hosanna-Tabor.

The schoolteacher, Cheryl Perich, taught fourth grade in the Missouri Synod Lutheran Hosanna-Tabor School in Redford, Michigan. In the summer of 2004, after several years of teaching, she developed a serious illness that prevented her from working. Although she tried to return to work in January 2005, the school asked her to resign. She threatened to report the school’s treatment of her to the EEOC and was subsequently terminated. Perich claims that she was fired for exercising her ADA rights. The school says she was fired because she refused to conform to church discipline. Going to civil law is considered a serious breach of Missouri Synod doctrine.

When the EEOC did file suit in federal court, the Church successfully argued to the U.S. district court that the “ministerial exception,” a legal doctrine said to be based both in statutory exemptions for religious employers in Title VII and other civil rights legislation as well as to flow from the combined action of the free exercise, no establishment, and freedom of association provisions of the First Amendment to the U.S. Constitution, deprived the federal court from assuming jurisdiction over the case. In other words, as the lawyer for the Church asserted to the Justices in the high court, under U.S. law, even though most of her day was spent teaching secular subjects, because Ms. Perich was formally commissioned as a “called teacher,” or minister, under Missouri Synod Lutheran doctrine (the only way she could attain tenure), her only forum in which to make a claim for unjust treatment was the internal church dispute resolution process. By deciding to accept a position as a teacher in a church-related school that defined her job in ministerial terms she had given up her rights as an employee under federal and state employment discrimination laws. She had effectively left the jurisdiction, legally speaking, at least for some purposes. She had put herself beyond the reach of secular law. As Church’s lawyer argued to the Court last week, “she couldn’t go to civil court if she’s a minister. She could have gone to the synod.” Her remedy was in the church courts.

The ministerial exception is a doctrine developed in the lower federal courts—one that goes beyond the statutory exemption within the ADA itself that allows religious organizations to preferentially hire their own co-religionists to disable the courts from considering employment issues related to ministers at all. The Supreme Court has never before decided a case under, or even affirmed the existence of, the ministerial exception, so this will be a much watched-for decision.

The transcript of the argument in this case provides an opportunity to reflect on the terms in which religious accommodation is being argued today in the U.S. and the extent to which the religion clauses demand formal judicial deference to an alternative normative order; that is, how and whether, in the peculiar alchemy of their jurisprudential history, an eighteenth century religious politics can be asked to serve a twenty-first century one.

The religion clauses of the First Amendment provide that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These words are understood today to guarantee the rights of individuals to freely choose their religious opinions and to prohibit government from funding or mandating core religious activities such as worship and proselytizing. In recent decades, the Court has seemed to favor a hands-off model of religion clause jurisprudence, finding, on the one hand, that religiously motivated folks are usually subject to the same laws as everyone else (absent a showing of intentional discrimination, viz. Employment Division v Smith); and, on the other, that they may bid for government funds on the same ground as everyone else (as long as they abstain from coercive proselytizing, viz. Agostini v. Felton). Further, in Hein, the Court has recently implied that church-state separation no longer demands an establishment clause exception to the standing rules in taxpayer cases. One effect of this jurisprudence has been to shift religious lobbying and law-making to the legislatures and lower courts.

Hosanna-Tabor is interesting in part because it brings to the fore a troublesome left-over issue for Americans. To what extent does religious freedom imply a need for formal legal recognition of churches at all? Can American churches manage on their own as private voluntary associations of like-minded individuals worshipping together under the laws that govern other private associations; or, do they need, or does the Constitution demand, more robust government support, even a ceding of sovereignty within certain areas, allowing them to act as small state-like institutions, enforcing their own laws?

A radical version of U.S. disestablishment would suggest that churches in the U.S. are, and have from the beginning been, understood to be entirely voluntary and private organizations that survive or not due to the enthusiasm and pocketbooks of their congregants (and God’s will), not public institutions legally defined and supported by the state. State-supported churches with their own jurisdictional domains were the common model in Europe. Arguably it is that model that Americans have been trying to get away from for several hundred years. The ministerial exceptions, and other lingering legal privileges for American churches, particularly the most legal-minded of them, seem, at times, to be vestiges of that older European model.

These are complex issues, particularly given the religious diversity of the U.S. Let us listen in on last week’s argument in the Supreme Court. It was a remarkably confusing conversation. What exactly is the ministerial exception understood to accomplish? Is that something most Americans want to accomplish?

One of the striking aspects of the argument last week was the extent to which, although there was much discussion of the difficulty and unavoidability for the courts of defining who is a minister, both the lawyers and the justices accepted as the limiting case the Catholic Church and its restriction of priestly ordination to men. It seemed for many present that whatever rule was arrived at had at the very least to preserve the Catholic Church from being forced to accept women into the priesthood. Even the lawyer for the government, the deputy solicitor general, kept backing off from a strong assertion that churches must be subject to law respecting retaliation to the same extent as other private associations as soon as she was pressed to consider the Catholic case. For example, see the following interventions, made by various justices and lawyers:

JUSTICE BREYER: So the fact if they want to choose to the priest, you could go to the Catholic Church and say they have to be women. I mean, you couldn’t say that. That’s obvious. So how are you distinguishing this?

MS. KRUGER: Right. We think that both the private and public interests are very different in the two scenarios. The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine.

****

CHIEF JUSTICE ROBERTS: On the other hand, the — the belief of the Catholic Church that priests should be male only, you do defer to that, even if the Lutherans say, look, our dispute resolution belief is just as important to a Lutheran as the all-male clergy is to a Catholic.

MS. KRUGER [Acting Deputy Solicitor General]: Yes.

***

JUSTICE SCALIA: Would you — would you allow the government to go — go into the — into the dismissal of the Catholic priest to see whether indeed it — it was pretextual?

MS. KRUGER: I think the answer is no, Justice Scalia –

***

JUSTICE SCALIA: Would you—would you—take the firing of a Catholic priest example. Does that get into the courts?

MR. DELLINGER: No, it doesn’t.

***

MR. DELLINGER [representing Ms Perich]: Well, in our view, if that was the test, then we would say that the court of appeals was correct in holding that she was not a minister, and the reason — the principal reason is she carries out such important secular functions in addition to her religious duties -

CHIEF JUSTICE ROBERTS: I’m sorry to interrupt you, but that can’t be the test. The Pope is a head of state carrying out secular functions; right. Those are important. So he is not a minister?

Repeatedly the Catholic example was reached to as the test case. Undoubtedly that is the case that most of the justices know best, but there was also a certain privileging of the Catholic Church as exemplary.

Lawyers for the Church argued that the ministerial exception is necessary because, if the employment relationship between a religious organization and its employees were subject to civil rights law, there would be a fundamental threat to religious institutions and their constitutional independence from state regulation. There are stronger and weaker versions of this need for what is sometimes termed “church autonomy.” Some in the courtroom seemed to think the ministerial exception could be limited to what they thought were obvious cases—what they called the hiring and firing of priests, pastors and rabbis. Others, inside the court, and out, would claim a larger sphere of sovereignty for church jurisdiction.

Are the U.S. civil rights laws really a threat to the continued male clericalism of the Catholic Church? That concern seems misplaced. The relationship of the Catholic priest to the Church is, at heart, not an employment relationship. A man becomes a priest through the sacrament of ordination, a religious ritual which confers an “indelible” mark, under canon law:

Canon 1008. By divine institution, the sacrament of orders establishes some among the Christian faithful as sacred ministers through an indelible character which marks them. They are consecrated and designated, each according to his grade, to nourish the people of God, fulfilling in the person of Christ the Head the functions of teaching, sanctifying, and governing.

Canon 1024. A baptized male alone receives sacred ordination validly.

He is subject to the supervision of his Bishop in his exercise of his office. No one argues that it would be constitutional for Congress or for a court to force the Catholic Church to ordain women. (And the EEOC was not seeking reinstatement of Ms. Perich to her ministry in this case.) The conferring of sacerdotal authority is a private act in the U.S. Churches do not need special exceptions to protect that. The difficulty comes when churches act as public institutions, such as when they hire people to discharge public, secular, duties such as school teaching. Then the public interest in protecting employees from discrimination and retaliation comes into play. Then the churches’ larger claims to special institutional autonomy become evident.

If the court is to exempt churches, as employers, from secular law, it is inevitable that they will be required to decide who is a minister and who is not, as was acknowledged repeatedly in court. Courts have often said that they don’t want to do that and yet they don’t seem to quite have the courage to walk away from the special protection and corresponding public role that churches and ministers enjoy—and the inevitable line-drawing that must be done. The Church’s lawyer was ready with a definition of a minister that he thought would be easy for the courts to administer:

MR. LAYCOCK: A minister is a person who holds ecclesiastical office in the church or who exercises important religious functions, most obviously, including teaching of the faith.

What are important religious functions? Among other things, it is quite striking that in 2011 an argument about giving special privileges to religion could proceed using only Christian language—as if churches and ministers exhausted the possibilities of religious leadership in the U.S. today. Everyone in the Court spoke of Christians and Christian churches and Christian ministers. Indeed they seemed to veer toward the higher liturgical end of the spectrum even among Christians. It does seem ironic, at the least, that among the thousands of religious groups in the U.S., the hierarchical churches might be given the strongest legal protection under these laws.

There are thousands of American laws giving special legal privileges to churches and to ministers. Many of these are extended well beyond the historically established churches to persons and institutions of a variety of religious commitments. When they support the autonomy of religious institutions in the disciplining of their members they tend toward the support of alternative normative orders. While individual conscience under Smith must bow to secular neutral laws of general application, church autonomy laws would require individuals also to bow to ecclesiastical law in a variety of contexts. Professor Laycock explains why this is necessary, as a political theological matter:

MR. LAYCOCK [for Hosanna-Tabor]: It’s not that institutions are different from individuals. It is that the institutional governance of the church is at a prior step. Smith is about whether people can act on their religious teachings after they are formulated. The selection of ministers is about the process by which those religious teachings will be formulated.

The presumption under this exception seems to be that churches must be protected by the state because it is in churches that individual consciences are formed. Most cases under this exception involve schoolteachers. The ministerial exception assures that children will be taught by schoolteachers who are under church discipline and that the church will exercise a public ministry with respect to those children. This is a robust claim for legal pluralism.

While most Americans undoubtedly believe that the government should not tell churches who should exercise religious leadership, arguably it is also the case that most Americans think that ministers are not the last word on what religion and moral formation is about—that the life of religion is not in the rules of established churches but in the faith-filled spiritual life of the people who only occasionally listen to their pastors, rabbis, priests, monks, gurus, or other would-be spiritual leaders—anyway.