Everson v. Board of Education

As Terry Eastland notes in his commentary on these two cases, “most of the religion-clause cases decided by the Supreme Court” in the wake of Cantwell have involved “federal litigation over religion-clause claims against states.” This is in contrast, he observes, to the first 150 years of Supreme Court religion-clause jurisprudence when all of the very few cases heard by the Court “involved claims against the federal government.”

On the one hand, this geographic shift has meant that formalized practices of religious establishment in individual states are henceforth subject to scrutiny and challenge. On the other, the application of the disestablishment principle to the states has also contributed, I’d argue, to the plaints of many Christians that a monolithically secular state is driving religion from public life. What we have is a regionalization of public conflicts over the place of religion and religious people in public life and in the state. This “and” is necessary, for the public is not the state—a confusion that regularly trips up public debates about the meaning and practice of religious freedom in the United States.

Christian dominance in American public life—while a truism—is itself not monolithic in practice. Instead, we might better speak of religious cultures, plural, and of secular negotiations. Particular Christianities are dominant in some states and regions in the U.S. in ways that strain against a larger overlay of mainline Protestantism as the baseline for what both national religious culture and national secular identity have meant historically. I’ll come back to this point.

Although he may seem like too easy of a target, former Senator and, now, former Republican presidential candidate Rick Santorum’s conflation of the state and the public square is illuminating precisely because it is not exceptional. In a notorious February 2012 appearance on “This Week with George Stephanopolous,” Santorum proclaimed his expansive vision of First Amendment free exercise: “I don’t believe in an America where the separation of Church and State is absolute. The idea that the church can have no influence or no involvement in the operation of the state is absolutely antithetical to the objectives and vision of our country. This is the First Amendment. The First Amendment says the free exercise of religion.” Santorum went on to express his visceral disgust at those who would bar religious people from the public square, seamlessly shifting his focus from the state to the public square. Making then presidential candidate John F. Kennedy’s famous 1960 speech to the Greater Houston Ministerial Association stand in as the ur-moment of this enforced bracketing of religion from all of public life, Santorum glossed Kennedy’s speech: “To say that people of faith have no role in the public square? You bet that makes you throw up. What kind of country do we live in that says only people of non-faith can come into the public square and make their case?”

This is, pardon the pun, a rather gross misreading of what Kennedy actually said. But, what interests me here are the following: (1) the way Santorum effortlessly elides the public square with the state and (2) Santorum’s elevation of free exercise over disestablishment as the living pulse of religious freedom. Minimizing—if not outright denying—disestablishment licenses the hyperbole of Santorum’s claim that the state can set no limits on the reach of “the church” into its operations. To be sure, Santorum’s language was very colorful, but his analysis and the ressentiment it bespeaks are broadly shared among evangelical Christians and a growing number of conservative Catholics.

As Janet R. Jakobsen and I stress in our book Love the Sin: Sexual Regulation and the Limits of Religious Tolerance, it matters a great deal to possibilities for agonistic democracy and meaningful religious freedom whether one sees the two components of First Amendment religious freedom—disestablishment and free exercise—as separable or interstructuring. In our view, and we are hardly legal outliers on this question, disestablishment is the structuring condition for free exercise. Otherwise, those who are religiously different or not religious at all may well find their lives not simply less admired and valued than those who belong to the dominant religion; they may find they have diminished legal status.

And yet, in public political debates over the meaning of religious freedom, too often we see the very balkanization replayed by Santorum: proponents of more religion in U.S. public life and in government (and let’s be clear, not just any religion, but of particular Christianities) lean heavily on the free exercise component and underplay disestablishment. Conversely, many secularists—not all secularists, to be sure, but many—stress the absolute separation of Church and State and minimize free exercise.

At least in principle, the appearance of religion in public spaces or the use of religious language and arguments in public debates need not equate to the state’s endorsement of any religion at all nor need it lead to religious dominance. To quote one of my favorite lines from Gilbert and Sullivan’s Utopia Limited; or, the Flowers of Progress: “That’s the theory but in practice, how does it act?” Not so well, as it happens. This is because U.S. public life operates under conditions of Christian dominance. Particular Christian practices and claims can “float,” sometimes being overtly marked as religious, at other times passing as secular, resulting in a situation Jakobsen and I have elsewhere termed “Christian secularism.”

The public itself (as an ideal) and public spaces (in their messy practices) are prepared in advance to credit Christian assumptions and value claims as integral to public life and national character. In such a context, it can be hard for those who are religiously different and those who are not religious at all to get a word in edgewise. In addition, these same Christian assumptions can pass into the state as the secular logic of universal morality and civic order, as we have seen in numerous state laws and referenda about same-sex marriage. I am writing these words a day after North Carolina voters overwhelmingly passed Amendment One, a constitutional amendment banning same-sex marriage.

Although many liberal and progressive secularists had hoped, even expected, that the election of Barack Obama in 2008 heralded the end of religion’s role in public debates and policy decisions, this hope has not been realized. And that’s an understatement, as any quick perusal of the roiling election-year debates over abortion and same-sex marriage show. Again, witness North Carolina. Or the debates over the provisions for contraception coverage in the Affordable Healthcare Act.

On one level, the hope was for an end to the influence of conservative religion—really, conservative Christianities—on policy-making, particularly in issues concerning sexual life. But, it was also, for many secularists, a desire for the elimination of any trace of religion in the U.S. public sphere, as if religion were a toxin from which they needed or even had a fundamental right to be protected. This too shows too measly an understanding of the scope of religious freedom and the parameters of agonistic democratic engagement. Democracy does not always feel good. In everyday life, we bump up against each other and may well be discomforted by differences we cannot assimilate or will not understand. And this is among the reasons we need courts to protect the rights and freedoms of unpopular minorities: so that bumps will not turn into overt violence or formalized exclusions. Encounters with difference, including with moral difference, are not a hostile take-over nor take-away, nor an instance of “indoctrination”—whether of religious values or secular. (Given the entwinement of Christian values with the values of the secular in the United States, the “or” in that previous sentence needs critical pressure as well.)

In using the loaded word “indoctrination,” I am invoking numerous heated debates about higher education and, in particular, the claim that universities are dominated by liberals and indoctrinate their students into secular values—thereby, severing them from their families of origins. Indeed, just such a claim was made by Rick Santorum in the very same interview in which he declared his nauseated response to Church-State separation.

The word “indoctrination” also makes a curious appearance in Everson. At issue in that case were reimbursements approved by the township of Ewing, NJ, and paid out to parents for money they spent busing their children to schools, whether public or Catholic. A local tax-payer challenged the payments to the parents of parochial school students as an unconstitutional establishment of religion. A split court (5-4) held that the use of such public monies did not unconstitutionally establish religion in the state. Fascinatingly, even the four dissenters agreed with the logic of the decision—namely, for a wall of separation between Church and State. The expansive terms of Justice Hugo Black’s conception of disestablishment could easily have been penned by any one of the four dissenters. Here’s Justice Black, writing for the 5-member majority:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.” Reynolds v. United States, supra, 98 U.S. at page 164.

I always discuss the Everson case in my undergraduate class on “Religion, Sexuality, and American Public Life.” I sketch the basic issues in dispute for this case, tell them it was a split decision, and then show them the above passage from the majority decision. In light of this purple passage, I ask them what they think the holding was. Inevitably, they think the Court ruled against public funding for buses to Catholic schools.

Like my students, I share the dissenting justices’ puzzlement that the majority could have put a bus-sized hole in the fabled “wall of separation.” But the larger lesson here, beyond providing my students a quick First Amendment jurisprudence 101, is that the sharing of general principles (here, the “wall of separation”) does not yet tell us anything about how they will be set down in practice. Moreover, the wall described in Justice Robert H. Jackson’s dissent seems to call for refortifying dominant Protestant notions of what secularism should look and feel like in practice. He does so via a stunning comparison-contrast between a Catholic emphasis on education as indoctrination into faith and a—well, what exactly?—Protestant/secular/Protestant-secular emphasis on neutrality and the value of mature adult “choice.” Justice Jackson writes:

It is no exaggeration to say that the whole historic conflict in temporal policy between the Catholic Church and non-Catholics comes to a focus in their respective school policies. The Roman Catholic Church…does not leave the individual to pick up religion by chance. It relies on early and indelible indoctrination in the faith and order of the Church by the word and example of persons consecrated to the task.

Our public school, if not a product of Protestantism, at least is more consistent with it than with the Catholic culture and scheme of values. It is a relatively recent development…organized on…the premise that secular education can be isolated from all religious teaching so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion. The assumption is that after the individual has been instructed in worldly wisdom he will be better fitted to choose his religion. Whether such a disjunction is possible, and if possible whether it is wise, are questions I need not try to answer.

The spirit of education conjured in this passage may well reveal its own “romantic yearnings”—to draw on the language of Winnifred Sullivan’s contribution to this forum—for a unified secular culture. However, as the Justice’s toggle between not quite Protestant, but not not-Protestant either suggests (“Our public school, if not a product of Protestantism, at least is more consistent with it…”), this unified secular culture—the fantasy of it, at least—is linked historically and imaginatively to what Robert Orsi has termed a “domesticated Protestantism tolerable within [the secular learning cultures of] the academy” that emerged in the late-nineteenth and early-twentieth centuries.

If this domesticated Protestantism did not need to plead its case in the classroom, this is because its style of personhood and structures of feeling were the very building blocks of secular public education—Protestant building blocks mistaken for walls of separation. Increasing religious diversity in the United States, including diversity among Protestants, has called many of Justice Jackson’s operative assumptions into question. I suspect that the justices in the majority in Everson did not quite anticipate the wild contemporary landscape of American religious pluralism either.

But there are also important connections to Sullivan’s discussion of “The world Smith made.” If religious authorities now find themselves in the ironic position of appealing to the secular state to enforce sectarian orthodoxies, one of the ongoing and crucial laboratories for this contest between discipline and dissensus will be public school classrooms. The mission—a term I choose with great deliberation—Justice Jackson attributed to the secular public classroom is not and never was innocent of religious domination. Those of us concerned about attacks on public education—from budget cuts to the right wing’s politicization of curriculum—would do well to remember and mark the specific histories of domination on which we stand our ground in the name of First Amendment freedoms of religion and of speech.

—Elizabeth Shakman Hurd and Winnifred Fallers Sullivan, TIF guest editors

In November 2011 the United States Conference of Catholic Bishops announced the creation of a new Ad Hoc Committee on Religious Liberty to be led by William Lori, Bishop of Baltimore. Addressing his “brothers” in the conference, and citing a wide range of authorities including John F. Kennedy, George Washington, Alexis de Tocqueville, Pope Benedict XVI, and Learned Hand, Lori explained the need for the new committee:

For some time now, we have viewed with growing alarm the ongoing erosion of religious liberty in our country . . . Aggressive secularism is also a system of belief. In failing to accommodate people of faith and religious institutions, both law and culture are indeed establishing un-religion as the religion of the land and granting it the rights and protections that our Founding Fathers envisioned for citizens who are believers and for their churches and church institutions . . . Together, we will do our best to awaken in ourselves, in our fellow Catholics, and in the culture at large a new appreciation for religious liberty and a renewed determination to defend it.

From the evidence of this and other calls to arms by the American Catholic bishops, as well as the ringing endorsement they have received from a remarkably wide range of public figures, it seems that many Americans truly believe that a zombie-like phenomenon called “un-religion” stalks the land, promoted alike by “law” and “culture,” peddling aggressive secularism and displacing the rights the “Founding Fathers envisioned for citizens who are believers and for their churches.” What is needed, these bishops say, is recognition that “the freedom of religious entities to provide services according to their own lights, to defend publicly their teachings, and even to choose and manage their own personnel, is coming under increased attack.”

There is much that could be said about the history of the Catholic Church and its dedication to the defense of religious freedom. What interests me about the formation of a new Ad Hoc Committee on religious freedom at this time is the company that the bishops are keeping today—and why the bishops’ bellicose language accusing the Obama administration of mounting a war on religious liberty seems to make sense to such a disparate and varied group. Beyond the obvious self-interest, there is a genuine urgency to the bishops’ appeal, one that is legible to a surprising number of Americans.

The bishops are not alone in their anxiety. In the last couple of decades, numerous projects have been launched to advocate for religious freedom, in the U.S. and elsewhere, many warning of the dire consequences of failure. Suddenly, it seems, it is the protection of religious freedom that stands between us and descent into nihilistic oblivion. How did it come to be that so many current concerns are being traced to a lack of religious liberty?

It is not just Americans. Advocacy for religious freedom is a global phenomenon today, as my colleagues and others have detailed. And we have been here before. Religion and freedom are intertwined in the stories told about government in complex ways throughout history. A full accounting has yet to be done. Its salience now is also deeply and problematically connected to a post 9/11 politics of fear. In this post I will confine myself to the recent U.S. domestic context—and to only one thread in the multiple genealogies that I think have led us to this perplexing moment.

It is a commonplace in the academic study of religion to observe that the word religion is manifestly conditioned by the history of its use and that it is deeply problematic, epistemologically and politically, to generalize across the very wide range of human cultural goings-on that are now included in this capacious term. To speak of religion is to elide and conceal much that is critical to understanding the deeply embedded ways of being often denoted by the short-hand term “religion[s].” It is also common to note the very specific difficulty of definition that faces interpreters and enforcers of legal instruments purporting to protect and regulate the freedom of “religion.”

American Catholic bishops have had their own fraught history with religious freedom. They both wish to claim it for their own and distance themselves from its implications. By associating themselves with others they are always too in danger of losing control of the narrative and falling into what the anti-modernists in the Church identified as the sin of indifferentism.

There is a sense in which this all began anew two decades ago when the U.S. Supreme Court decided Employment Division v. Smith. Justice Antonin Scalia’s opinion for the majority in Smith (known as the peyote case) held that the free exercise clause of the First Amendment to the U.S. Constitution does not mandate a religious exemption, or accommodation, from neutral laws of general application that impinge on the activities of religiously motivated folks, even if such laws effectively outlaw acts that are understood by them to be religious duties—even sacraments.

The Smith decision was widely received by religious conservatives in the U.S. as effectively and finally revealing the implacable (and widely suspected since the school prayer decisions in the 1960s) hostility of the federal government towards religion. But, much more importantly, the coalition of more than sixty religious groups that came together—and quickly and successfully lobbied Congress to overrule Smith with passage of the Religious Freedom Restoration Act (RFRA) in 1993—included both liberals and conservatives. Indeed it included groups from across a very broad American spectrum, politically and theologically.

Baptists, evangelicals, Jews, Seventh-day Adventists, Presbyterians, Unitarians, Pentecostals, Quakers, and more. All agreed that religion itself—religion-in-general—was under threat as a result of the Smith decision. All recognized that what bound them together was that they were all threatened by the secularism made evident by Smith. What united them and enabled them to speak across the historical and cultural gaps that had previously divided them was that they were all “religion.” They needed to bury the hatchet and confront the enemy. Doing that was made easier by the fact that the ground had been prepared, and the consolidation of this alliance facilitated, by the emergence and popularization of a certain style of religious studies as a lingua franca for speaking about religious difference in the U.S. context. A lingua franca promoted by Huston Smith and others. Protestant-Catholic-Jew and Judaeo-Christian had morphed into “here comes everyone.”

Smith was a wake-up call. Smith suggested that religion in the U.S. had become complacent about its irenicism, inevitability and cultural entrenchment.

The effective institutionalization of the post-Smith politics changed the legal and political language about religious freedom in the U.S. and abroad. RFRA was specifically intended to reinstate the compelling interest test for religious exemptions. While subsequently declared unconstitutional with respect to the states, RFRA was followed by a raft of other more carefully drafted legislation, including the Native American Graves Protection and Repatriation Act (NAGPRA), International Religious Freedom Act (IRFA), and Religious Land Use and Institutionalized Persons Act (RLUIPA) at the federal level, as well as dozens of state laws—or as they are sometimes known, mini-RFRAs—all designed to provide robust protection for religion.

The aftermath of Smith also saw the development of a vigorous and well-funded specialized bar promoting the rights of religion.

While Smith most obviously led to a shift from constitutional appeals to the drafting of legislation (at every level—even local school boards), it has also arguably provoked a now further shift away from reliance solely on selective accommodations from secular law to robust jurisdictional demands for church autonomy or even church sovereignty. In a series of cases considering the constitutionality of school voucher programs and the faith-based initiative, the Court has held that the establishment clause does not prohibit the recognition and direct funding of religious institutions by government. There is a new accommodation between the two clauses, giving institutional religion—what might once have been considered “established” or “sectarian” religion—new legal definition and relevance.

American religious politics is not, of course, entirely produced by Supreme Court jurisprudence. But it is plausible, I think, to see Smith as a turning point in the consolidation of a broad religious alliance that is at work today, one which collectively opposes secularism while each member aggressively seeks to shore up its own ecclesiological position. There is a sense in which Smith’s comprehensive rejection of religious reasons invented religion anew—and gave new life to un-religion. Smith, in part because of the high-handed rhetorical violence of the majority opinion, and its refusal even to discuss Native American peyote use beyond a brief half-sentence reference, seemed to dismiss a carefully nurtured U.S. religious multiculturalism with the back of a hand. The response of U.S. religious groups has been impressive.

To what extent does a legal and political commitment to religious freedom imply a need for formal legal recognition of churches and other religious institutions? The most recent decision by the Court, Hosanna-Tabor v. EEOC, is interesting in part because it brings to the fore a troublesome leftover issue for Americans—and for others who would promote religious freedom—an issue with a long U.S. pedigree but one made newly relevant by the challenge of Smith. A radical version of U.S. disestablishment—never realized—suggests that churches in the U.S. are and have, from the beginning (whether in Puritan New England or at the time of the Constitution), been understood ideally 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 trans-historical entities or public institutions legally defined and supported by the state. The fragile voluntarism of the free church now seems a slender reed on which to build a bulwark against un-religion. Older, tougher, ecclesia are being looked to.

A remarkable number and range of religious institutions filed amicus briefs on Hosanna-Tabor’s behalf. Briefs were filed by some regular filers in religion clause cases, others less so, some represented by well known First Amendment lawyers and advocacy organizations, others newer to the scene—many of them very strange bedfellows indeed. These organizations, like the RFRA coalition, represent a very wide range of religious positions, including evangelical Christians, Hindus, Muslims, Catholics, Mandaeans, Methodists, Presbyterians, Afro-Carribean religions, Jews, Mormons, and Lutherans. What seems to have brought them together is not so much the right of religiously motivated individuals to a conscientious exemption from laws that burden their religious practice, but a robust assertion of their corporate jurisdictional autonomy from the state.

The muscular hierarchical demand of the rights of churches and other religious authorities is arguably the world that Smith made. While some national and international human rights regimes may have moved toward a more individualistic model of protecting religious freedom, one that focuses on the sincerely formed consciences of individuals, religiously motivated groups in the U.S. may be moving the other way, back towards what in the U.S. used to be called establishment—that is, government support of “pervasively-sectarian” institutions—in a curious embrace of those churches, and the folks who run them, which once seemed the very antithesis of American evangelical religion.

There is a tragic quality to this situation. A broad-based critique of secularism feeds a romantic yearning for the presumed holism of intact and homogenous religious cultures. Churches and other religious authority structures can no longer rely on the conscientious dissent of their followers from majority cultures. They are demanding secular backup in their efforts to impose discipline. Many religious individuals meanwhile worry about whether the interests of organized religions can continue to serve as a proxy for their own interests.

The U.S. situation has a particular history, one that might be best described as one without a church or a state—and without the anticlerical politics that succeeded the legally established churches and absolute monarchies of Europe. It is “we, the people” who are in charge of both. Perhaps that is why Americans can be so naively cavalier about the reinstatement of the rights of religious authority by political authority—in the name of religious freedom—at a time when both are being undermined elsewhere by revolutions that do not fear so much un-religion as un-democracy. Promotion of religious freedom today may be undermining democracy, here and abroad. Not because democracy is necessarily secular, but because the religion defended by the bishops and other warriors for religious liberty, is autumnal rather than vernal.

—Elizabeth Shakman Hurd and Winnifred Fallers Sullivan, TIF guest editors

Michel Foucault famously describes Jeremy Bentham’s Panopticon as a “cruel, ingenious cage” to be understood not as a “dream building … [but as] the diagram of a mechanism of power reduced to its ideal form … a figure of political technology.” For Foucault, panopticism is “the general principle of a new ‘political anatomy’ whose object and end are not relations of sovereignty but the relations of discipline: [t]he celebrated, transparent circular cage, with its high towers powerful and knowing.” In reading the Supreme Court’s decision in Hosanna-Tabor v. EEOC recognizing a “ministerial exception” to antidiscrimination law—a case hailed almost immediately as a victory for religious freedom—it is for me the specter of the Panopticon that haunts every page.

I offer these reflections on the case and what it may teach us about contemporary law, politics, and theorizing on religious freedom from the perspective of international legal theory. Viewed from outside the strictures of First Amendment scholasticism, the judgments are at once striking and familiar as compared to cases arising in other parts of the world. Striking because the justices do not justify, or even acknowledge, the antinomies and contradictions in their reasoning regarding the two cardinal principles of religious freedom orthodoxy: (1) that the State must be “secular” and thus “neutral between religion and religion, and between religion and nonreligion”; and (2) that the right to religious freedom protects what Martha Nussbaum has recently called the “essential idea” of “liberty of conscience.”

I read the case instead as an attempt to rebel against these two ideas and, at a deeper level, to resist what Foucault termed Kant’s “contract of rational despotism with free reason: the public and free use of autonomous reason will be the best guarantee of obedience, on condition, however, that the political principle that must be obeyed itself be in conformity with universal reason.”  To me the judges seem trapped simultaneously in the tower and circle of the modern Panopticon of Enlightenment rationality. On the one hand, they speak with authority in an objective register of right and reason as they gaze upon the category of “religion,” while on the other they speak defensively in a subjective register of history and culture as they seek in vain to resist the disciplinary implications of the category of “freedom.” This leaves their reasoning exquisitely caught in a fraught but familiar dialectic of power and illusion.

Hosanna-Tabor presented the Court with the two standard dilemmas in religious freedom cases. First, if a “ministerial exception” was to be recognized under the First Amendment (a) who is a “minister” and how (and by whom) can this be determined in a way that is neutral between different religious traditions; and (b) if so recognized, how can the exception be justified to secular groups performing the same activities to whom neutral laws of general application apply and to “ministers” themselves whose rights under laws such as the Americans with Disabilities Act are now to be denied? How can this be neutral between religion and nonreligion? Some argument is needed to explain why religion is accorded special treatment either because it is distinctly burdened or under a special legal disability, an argument which itself cannot be “religious.”

Second, how can religious liberty be justified as a collective right, here attaching to religious groups and institutions as opposed to individual persons? Religious institutions don’t have consciences per se, only their individual members do, although religious entities do have texts, traditions, rituals and practices. If such groups or institutions are indeed bearers of rights, what is the scope of that right, what forms of conduct and activity does it include, and with what legal consequences? Does the right generate, for example, a duty on the State not to interfere in some “autonomous” sphere (as yet undetermined) or officially to recognize certain group manifestations of religious practice? If so, why does this not pose the same threat to the modern administrative state articulated by Justice Antonin Scalia in Employment Division v. Smith, where he stated that “permitting [a person] by virtue of his beliefs ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense”?

For Chief Justice John Roberts, writing for a rare unanimous Court, the answers to these two sets of questions were to be found simply in “the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.”  Added to this textualism were two forms of historical argument: one looking at the original understanding of the Religion Clauses on the basis of which the Court (re)tells a founding story of the principled rejection after 1776 of the established Church of England and entrenchment of “disestablishment” and “free exercise;” and the other interpreting the Court’s own labyrinthine Religion Clause jurisprudence from which distinctly Protestant terms such as “Church,” “minister,” “ecclesiastical,” “belief,” “faith,” and “mission” are neatly distilled and woven together in the Court’s final ratio that “the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical’—is the church’s alone.”

I will make three general arguments concerning the reasoning in Hosanna-Tabor.

First, the paucity of reasoning in Hosanna-Tabor regarding the two sets of dilemmas above is best explained in terms of a political theology based on popular sovereignty and a prophetic hermeneutics of textualism and originalism. This form of political theology is unstable, however, for two reasons: one concerning the relationship between liberty and religion and the other the relationship between popular sovereignty and universal freedom.

Second, the privatization of churches and religion more broadly and their Erastian control by the State are the premises of freedom in the private sphere—a sphere unilaterally defined, protected, delimited, and increasingly regulated by the State itself. Regardless of how the sphere of conscience is delimited by the State, the background assumption underpinning the assertion of line-drawing power itself is the denial of the coercive authority of religious institutions in enforcing the demands of conscience. This is the critical point.

Any interest of the State in appointing officials to the Church would arise only if either the Church had a corresponding official role in the public realm of the State (as in England where, for example, of the Church of England’s 44 bishops and archbishops, 26 are permitted to sit in the House of Lords) or an agreement was negotiated between sovereigns (as is possible in Italy in its relations with the Holy See and Vatican City). It is difficult to see why the State would wish to appoint officials to a “free church” assigned the legal status of a voluntary association in the private sphere of civil society. If this is what is claimed to be a victory for religious freedom, it is a Pyrrhic victory. The churches have long ago ceded or been denied their former ecclesiastical jurisdiction and are now unilaterally “free” to select their ministers in private under the disciplinary gaze of the Panopticon.

This legal understanding is expressly confirmed in the Court’s opinion, which states that the ministerial exception is not a “jurisdictional bar” but a “defense” on the merits because “the courts have power to consider ADA claims in cases of this sort and to decide whether the claim can proceed or is instead barred by the ministerial exception.”  This, in Foucault’s terms, is not a relation of sovereignty, but of discipline. The Church has already been absorbed into the State, the former ecclesiastical jurisdiction has been collapsed into the secular and, in the words of Bradin Cormack, the temporal law has become “the rule against which the claim of conscience [is] to be measured.”

Finally, the other great transformation that defines the modern politics of religious freedom is the definition of religion itself as conscience or belief in an age of what we might term “secular equality” and the ensuing unstable convergence between conscience and autonomy on the one hand and gradual reversal in the secular imaginary whereby freedom of conscience is today viewed as autonomy on the other.

What is most interesting in Hosanna-Tabor is how the Court first expands the notion of individual autonomy to include “the Church” as a legal subject with a right to a certain autonomous sphere. But unlike in Smith, as soon as the category of “religion” is broadened to include not only the forum internum of conscience but also the forum externum of manifestations of religion or conscience, then potential conflicts arise with State jurisdiction (which potentially extends to any action implicating State interests).

In order to deal with the legal consequences of this move, the Court almost seamlessly shifts to the language of conscience and in effect analogizes the “inner conscience of the Church” to individual conscience seen as extra-legal and pre-political. In other words, the Court seeks to identify a realm not merely of autonomy but sovereignty—a jurisdiction in some sense separate from the State. As a sovereign realm, this must include not only decisions made for a religious reason but more broadly must ensure “that the authority to select and control who will minister to the faithful—a matter strictly ‘ecclesiastical’—is the church’s alone.”

This turns the autonomy argument on its head. Indeed, this is the kind of classical religious freedom argument which communitarian theorists have long adduced against Rawlsian liberals claiming the self to be prior to its ends and the right prior to the good. The communitarian argument hinges on the moral importance of religion and rests on the idea that religious liberty should also protect those “who regard themselves as claimed by religious commitments they have not chosen” and thus encompasses the right to “pursue a substantive good characteristic of a group moral identity.”

The idea appears to be, as Winni Sullivan has observed, that the “‘Church’ is prior to the sacraments” for it is in Churches that the individual conscience is formed. This, of course, is a deeply theological argument which unselfconsciously claims to identify the proper attributes of religion and religious subjectivity. But it does so unilaterally—by an act of imagination rather than mutual recognition of sovereign relations—and it does so in an almost nostalgic gesture towards a now extinct legal relation that has vanished from the modern secular democratic state.

But how exactly does the Court know which matters are “strictly ecclesiastical” or which affect “the faith and mission of the church”? From a religious point of view, the scope of the “inner conscience of the Church” is likely to be viewed more broadly than that permitted under the ministerial exception as delimited in Hosanna-Tabor. Conversely, from a secular point of view there are likely to be a host of activities and actions pertaining to the “inner conscience of the Church” which raise the question of proper exercise of legal jurisdiction.

Given the depth and scope of these complexities, the puzzle remains why the Court in Hosanna-Tabor so effortlessly assumes the compatibility between autonomy and conscience in the formulation of the ministerial exception. What is central is that the Church “freely decide” ecclesiastical matters as a matter of right and further that it have autonomy to control matters even on non-religious grounds provided these pertain to the “inner conscience of the Church.” The first position defines conscience in terms of autonomy and the second defines autonomy in terms of conscience. In this set of historically- and culturally-contingent dialectic moves, a Protestant understanding of “the Church” and an Enlightenment conception of freedom are simultaneously asserted and naturalized.

This necessarily creates what Winni Sullivan has termed a “protestant de facto establishment,” privileging one religious subjectivity over another. This is easily visible when the ministerial exception is considered in relation to different religious traditions, especially those that historically or currently are seen as threatening either the security of the state (public order) or the freedom of others (freedom of conscience). Consider, for example, the vast governmental surveillance and monitoring of mosques in America since September 11, 2001. This has gone far beyond the extension of criminal law to suspected acts or support of terrorism. The government has directly targeted theological issues and established intrusive mechanisms to monitor the content of religious speech thought to foster “fundamentalism” or “radicalism.”  U.S. policy in both domestic and international fora has thus comprehensively set out to “reform Islam from within.”

As Saba Mahmood has observed, the “effectiveness of such a totalizing project necessarily depends upon transforming the religious domain through a variety of reforms and state injunctions …. [and t]his has often meant that nation-states have had to act as de facto theologians, rendering certain practices and beliefs indifferent to religious doctrine precisely so that these practices can be brought under the domain of civil law.”  Muslim adherence to the phenomenal forms of religion such as Islamic laws, scriptures, rituals, liturgies, and observances potentially disturb such naturalized understandings of religion as conscience and conscience as autonomy (see my previous posts on this topic).

To an international lawyer then, the most glaring antinomy in Hosanna-Tabor is between the exceptionalist and universalist strands of U.S. religious freedom discourse. This is especially so viewed from the perspective of international law and foreign policy where the U.S. continues to wage a global war against “religious fundamentalists” said to pose an existential threat to modern liberal democracy and where the monitoring, promotion, and protection of the right to religious liberty (in countries apart from the U.S.) is both strongly encoded in national law, e.g. in the International Religious Freedom Act of 1998, and implemented through extensive governmental machinery, e.g. the U.S. Commission on International Religious Freedom.

A better understanding of the contemporary politics of religious freedom may help us diminish the disciplinary power of the Panopticon and see more clearly what is at stake for Christian and non-Christian traditions and conditions both within and beyond North-Atlantic modernity.

The last sentence of the Court’s opinion in Hosanna-Tabor announces the dogma that binds the majority opinion. Affirming for the first time the constitutional status of the ministerial exception, the Chief Justice declares that “(t)he church must be free to choose those who will guide it on its way.” Not “persons” must be free to choose their own ministers, but “the church” must be free. What is “the church?” Christians mean different things at different times when they use the definite article in speaking of church—when they speak of “the church.” Sometimes they are referring to the church on the corner, or a particular church organization, such as the Presbyterian Church USA, one of any number of churches. (That is how the Court uses the phrase at various points, when referring to Hosanna-Tabor in particular, as on page 5, or when it refers specifically to the Church of England, as on page 7, and so on.) In legal and political contexts, “the church” may be opposed to “the state,” vaguely throwing a circle around all religiously motivated activity. The Court in Hosanna-Tabor is not speaking in these ways in its last sentence. The Court is speaking theologically, and dogmatically, as it does several pages earlier in describing the purpose of the ministerial exception: “The exception . . . ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly eccle­siastical’—is the church’s alone.”

Theologically speaking, “the church” refers to what might be termed the mystical church—also known in Christian doctrine as the “body of Christ”—that is, the communion of all Christian believers across space and time, alive and dead, unified through apostolic succession. Christians have differed about how the visible church on earth should be governed and have related in different ways with political authorities. The Roman Catholic Church understands itself to be a universal church—that is, as embodying all Christians, on heaven and on earth. Protestants have had a range of theological readings of the church, derived in part from their new readings of the New Testament beginning in the sixteenth century, a range that is reflected in the range of ecclesiologies among American colonial proponents of religious freedom. But a distinguishing feature of the United States, arguably, is that after 1791, the unity of Christendom expressed as “the church,” whether in Roman Catholic or Protestant guise, no longer has legal personality. It is the people who are in charge.

Take Roger Williams, for example, the seventeenth-century founder of Rhode Island and colonial hero of many a current religious defender of the rights of churches in the United States. For Williams, the church was to be found, if at all, in those local few “gathered in his name,” without any bureaucratic superstructure. At the end of his life, Roger Williams, skeptical of Christian claims of biblical authority to found churches and of the hypocrisies of what he derided as Christendom, belonged to no church. One could even argue that it was Williams’ skepticism about organized religion rather than any desire to protect religious institutions that most presages constitutional religious disestablishment. Williams, pious Christian though he was, thought political life in a diverse community could be organized without reference to religion.

The majority opinion in the unanimous decision from the Court in the Hosanna-Tabor case affirming the constitutional status of the ministerial exception as a right of the church is supported by a curious mash-up of religious and political history. The villain of the piece is Henry VIII. Before the Act of Supremacy, we are told, the church in England had been free, at least since 1215, thanks to King John and Magna Carta. The church was free because King John had agreed that the church had the freedom of election to church offices. According to the Court, Henry VIII interrupted that freedom with his break from Rome. The church was not free again until the Puritans and the Quakers arrived in the New World. The freedom of the church, both in England during the time between King John and King Henry, and after 1607 in the English colonies, but particularly since ratification of the First Amendment, can be summed up, as the Court describes it, in the capacity of the church to select its own ministers, free of political interference.

Profound differences in Roman Catholic, Reformation, and Anabaptist ecclesiologies and understandings of the freedom of Christians are finessed in this breezy historical account. Slipping back and forth between “religious organization,” “religious institution,” “religious group,” and “church,” as well as posing the relationship of each to an also homogenized and ahistorical “state,” the Court manages to avoid the enormously fraught issue of what “the church” is and who speaks in its name at various times and in various places. King John, Henry VIII, James Madison, and William Penn, members of very different churches, are all understood to be speaking of the same special freedom for “the church” to select its own ministers.

Church history stops then for the Chief Justice in 1791. After the truncated account of English church history, what is most striking in his opinion is the entire lack of acknowledgment of the remarkable changes to the churches that occurred in the American colonies. Disestablishment, division, revivalism, populism, and immigration profoundly changed American religion. After 1791, official Americans, when speaking of American religion, arguably can no longer descriptively—or constitutionally—speak, as the Court does, of “the church” and its rights. The church had been disestablished.

Precedent for the majority’s reading of the rights of the church is also found in what are known as the church property cases, a set of US cases that address disputes over future ownership and use of churches when their congregations have a split in doctrine. This is a complex line of cases but one difficulty with using the church property cases as establishing the right of “the church” to choose its ministers is that, by definition in such cases, there are at least two groups of people who lay claim to a right to define who is a minister and to choose their own minister. In each case, after the courts decided the issue, one group did not get to select its own minister or it had to abandon the church in question and found its own new congregation in order to do so. In each case, the Court sided with what it took to be the hierarchy.

The Court concludes this section of its decision with an announcement of the rule that “‘the First Amendment commits [resolution of the property cases] exclusive­ly to the highest ecclesiastical tribunals’ of the Church.” Citing its decision in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, the Court explains that the First Amendment “permit[s] hierarchical religious organi­zations to establish their own rules and regulations for internal discipline and government, and to create tribu­nals for adjudicating disputes over these matters.”

Evidence for the Court’s transcendent ecclesiology, that is, its theory of the church and of church governance, can also be found in the way it distinguishes Smith—the peyote case. Smith held that the free exercise clause of the First Amendment does not provide a constitutional exemption for religiously motivated persons from laws of general application because secular laws fall equally on the religious and the non-religious. The alternative, as Justice Scalia explained in his decision for the majority in Smith, is that each person would be a law unto his own. The Smith rule does not apply in Hosanna-Tabor, the Chief Justice explains, because, the issue is not one of the right of religious individuals to a special exemption from neutral laws—a right defended by many as being founded in the respect accorded to individual conscience in liberal legal theory—but of the right of “the church” itself:

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.

It is worth looking at this paragraph very closely. What the Court says is that while the free exercise clause of the First Amendment provides no constitutional exemption from laws of general application for individual believers who engage in “physical acts” consistent with their religious beliefs—what many Christians term sacraments—the establishment clause provides an exemption for “the church” from such laws because by interfering with church governance the Court is interfering with “the faith and mission of the church itself.”

Here the Court speaks of the doctrinal priority of “the church,” and presumably, therefore, of its current earthly would-be representatives. Acknowledging that the ADA would seem to be a law of general application from which religious actors would not be exempt, Roberts explains that Smith concerned the constitutional status of “only outward physical acts.” The Court here seems to be saying that, as Douglas Laycock, representing Hosanna-Tabor, did at oral argument (see my previous post), that “the church” is prior to the sacraments because the church forms the consciences of individuals. Preserving the hierarchical discipline and right to autonomy of the church is structural to the US Constitution evident in the priority which disestablishment (read as a rejection of Henry VIII’s rejection of the Pope in the Act of Supremacy) has to free exercise in the ordering of the religion clauses in the First Amendment itself, while acts performed in obedience to the religious conscience of the individual must bow to secular law.

By reading its version of church history into the First Amendment, the Court is enabled to give priority to the rights of some Christians through its evocation of “the church.” But that history also enables a denial of rights to other Christians as well as to non-Christians. Freedom from hierarchical church discipline arguably accorded to American Christians by the religion clauses is disregarded in favor of a strong assertion of the rights of the church.

Most significantly, though, in the current moment, is that there is arguably no analogy to “the church” in its mystical sense outside Christianity. While other religious communities speak of the body of the faithful in various ways, the Court’s opinion would seem to suggest that its doctrine is tightly and very specifically bound to a history of the Christian church and its assertions of its rights in the context of a particular reading of English history.

Founded in its reading of English church history, the constitutional right articulated by a unanimous court in this decision is “the freedom of a religious organization to select its ministers.” While the Court acknowledges that it might occasionally prove difficult to decide who qualifies as a minister for these purposes, it nowhere mentions the difficulties of determining what a religious organization is. Justice Alito’s concurring opinion, evincing a careful concern for the Christian exclusivism of the majority opinion, begins the project of expanding the discussion beyond the church. “Minister,” Alito states, is a term that is mostly limited to the Protestant churches. His solution to this problem is to define minister functionally and universally, assuming that such a role can be found in all religious traditions—and beyond.

Alito, with the EEOC, sees the rights of religious organizations with respect to ideological control of their members as similar to that of all other voluntary associations, a right founded in the freedom of association expressed in the First Amendment, not in the rights of religion: “Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.” This turn to the voluntariness of American religious life corresponds much more closely to what disestablished religion looks like in the United States today and to how most Americans understand their relationship to religious communities, one not of top-down hierarchy but one of bottom-up participation. It is also rooted in another reading of the history the Majority tells, one that tells a story of the freedom of Christians, and eventually of non-Christians as well. It is an understanding that sees Ms. Perich as the possessor of rights, not “the church.”

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.

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.