Religious liberty wins 9-0 at SCOTUS in “ministerial exception” case

by Walter Olson on January 11, 2012

And I do a little happy dance at Cato at Liberty (earlier)(& Damon Root/Reason, Allahpundit; my background piece in October).

More: Hans Bader points out, regarding the Obama DoJ’s “let them rely on free association” argument, that “free-association defenses, unlike religious-freedom defenses, are generally losers, as the Supreme Court’s Hishon, Jaycees, and New York State Club Association decisions illustrate.” And: “The extreme position taken by the Obama Justice Department in the Hosanna-Tabor case is a reflection of ideologically-based hiring.”

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{ 11 comments }

1 Richard Nieporent 01.11.12 at 4:27 pm

Clearly the Obama administration is bringing the country together, or at least the Supreme Court. 9 – 0, way to go Obama!

2 James 01.11.12 at 5:10 pm

I can see why not making some employment laws apply to “ministers” is essential to preserving freedom of religion, but why the ADA? How does requiring churches to not discriminate against the disabled affect their First Amendment rights?

3 Hugo S. Cunningham 01.11.12 at 9:10 pm

@James:
Would you require a church to hire as pastor someone incapable of public speaking?

4 nevins 01.11.12 at 9:30 pm

The claim of ministerial exception seemed misplaced. The employee was a lay teacher with lay subjects. Why not interpret employee’s status based on whether this bestowing of ‘ministerial’ capacity is consistent with other employment practices at this school.

5 James 01.11.12 at 9:42 pm

@Hugo:
Would any law require that? Being capable of public speaking is clearly a bona fide job requirement for a minister.

6 Walter Olson 01.11.12 at 9:49 pm

>James – The ADA itself was incidental to the case as it developed. The church treated her as being religiously noncompliant (which entailed dismissal from that job) because she defied an element of church doctrine requiring believers to resort to church tribunals rather than civil courts. The Supreme Court correctly construed the employment discrimination laws as a form of forced association, and as such inconsistent with a church’s genuine autonomy in selecting leaders and transmitters of doctrine. This is so whether the particular category is race, age, disability or whatever.

>Nevins – The church had reserved the job in question for persons with a “calling,” though only some of its duties were religious. The Court quite rightly in my view declined to encourage the federal government to engage in extensive second-guessing of churches’ own determination that teaching jobs like hers should be reserved for the “called.”

7 Smart Dude 01.11.12 at 10:59 pm

For “Constitutional Scholar” Obama and henchman Holder to generate a 9-0 loss in SCOTUS indicates a profound absence of constitutional scholarship.

8 David Schwartz 01.12.12 at 3:35 am

James: In any such case, a key point of contention will always be whether the person is capable of satisfactorily doing their job. It is clear how a Court could determine this in the case of a secretary, janitor, or salesman. But how does a Court determine whether a person is or is not capable of satisfactorily performing the job of a Catholic priest? How do they determine which job functions are essential to the church’s religious mission and which they can do without?

9 a_random_guy 01.12.12 at 8:39 am

David Schwarz writes: “It is clear how a Court could determine this in the case of a secretary, janitor, or salesman. But how does a Court determine whether a person is or is not capable of satisfactorily performing the job of a Catholic priest?”

Actually, it’s not clear at all. What qualities a particular company requires for a particular position depends very much on the company. Most employment regulations are (imho) counterproductive.

Taking the ADA as an egregious example: if you hire a disabled person, you are letting yourself into a world of hurt. Hence, many companies will do anything they can to avoid hiring the disabled. In other words, practically speaking, the ADA makes it more difficult for the disabled to find productive jobs.

The same can be said of many (most?) other employment regulations: the paperwork and bureaucracy they create cost far more than any well-intended benefits they are supposed to have.

10 Jack Wilson 01.12.12 at 10:34 am

A return to the at-will principle of employment would handle most of this type of issue.

11 VMS 01.13.12 at 9:57 am

A_random_guy is correct! If an employer hires someone who is a member of a “protected class,” if the need arises, it will be MUCH more difficult to lay off or fire that person. On the other hand, if the employer fails to hire a member of a protected class, there is no track history and nothing but the subjective opinion of the employer as to why one person was hired over another.

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