Is the Supreme Court about to say that the First Amendment protects the foxes as they guard the henhouse? Professor Michael Dorf’s recent post for the JLPP Blog concerned a controversy in which an upstate New York town clerk refused to issue marriage licenses to same-sex couples.This is a duty imposed by the state’s new marriage equality law. In early October the Supreme Court heard oral argument in a case that turns on a complementary legal issue. Rather than the limits of conscientious objection for government officers, Hosanna-Tabor Evangelical Lutheran Church and School v.  (link)concerns what is known as the “ministerial exception.”

The ministerial exception is a judicial circumvention of federal civil rights law which restrains courts’ ability to hear disputes between religious institutions and their employees. (Interestingly, different Circuits have implemented this ministerial exception in varying ways. The First, Third, Ninth and Tenth Circuits treat the exception as an affirmative defense; the Sixth and Seventh Circuits treat it as jurisdictional; and the Fifth and Eleventh Circuits interpret the discrimination laws according to this doctrine such that claims between churches and ministers do not fall within the ambit of the discrimination laws.)

But which religious employees are ministers? The easiest answer is that ministers are ministers; that is, priests (explaining the continued existence of the Catholic all-male clergy), rabbis, imams, and other leaders of the faith. But beyond that it gets murkier – the Lutheran school in this case argued for an expansive interpretation that would encompass schoolteachers who taught religion class or led their students in prayer as a minister, because their job contains elements of religious doctrine and worship

But this case, Hosanna-Tabor, encompasses more complexity than merely determining who is a minister; the Court here must decide if it can even answer that question. It remains to be seen whether a church calling its employees ministers (as here) is enough. The struggle over “who decides who is a minister” is one of the fascinating complexities of this case. As Lyle Denniston at SCOTUSblog summarizes:

The [Hosanna-Tabor v. EEOC] case is about a Michigan teacher, Cheryl Perich, who contends that she was fired in violation of the Americans with Disabilities Act, to retaliate because she threatened to complain to the government about being turned away from her job when she fell ill, and it is about her parochial school, which contends that she was fired for religious insubordination for not working out her grievance within the church family. The Court is thus confronted with the issue of whether the ADA could not apply to Ms. Perich because she was a “minister” under the “ministerial exception” to anti-bias law. But the energetically engaged Justices took the case well beyond that issue and the conflicting views over the motive for her firing, repeatedly probing to the core of church-state relations.

Denniston’s summary highlights the intriguing claim made by the Lutheran school: that the teacher could be fired for threatening to file or actually filing an ADA lawsuit because it is a tenet of the Lutheran faith to resolve all such disputes inside the church and without resort to secular courts.

If the general rule is to not inquire into questions of religious doctrine, must a church’s claim that its motivation was driven by a tenet of the faith, must the inquiry stop there? No, surely there must be a pretext or sham exception, one answers. But isn’t the pretext analysis in all but easy cases sure to involve judicial entanglement in questions of faith just as much as a full-bore inquiry into the nature of the claimed tenet? That is, once we allow courts a foot in the door through a pretext inquiry, isn’t the supposed sanctity of religious autonomy violated? And isn’t the alternative, the acceptance of a church’s claim that the case involves questions of religious doctrine and is therefore off-limits to secular courts, unthinkable given our legal culture and traditions? There seems to be no way to thread the needle.

Further, the claim that “central tenets of the faith” can encompass matters like “how we deal with employment disputes,” and not solely questions like the divinity of Jesus or the sanctity of scripture, raises the same problems as does the school’s position on defining “minister” for the ministerial exception. Both these issues conflate the secular world of law and government with the world of religious belief. If the courts have to look, even quickly, at what is and what is not a tenet of the faith, they will essentially be ruling on questions of religious doctrine. And since “minister” is now a term that must be defined by courts in order to apply (or not apply) the ministerial exception, aren’t they necessarily making determinations about which employees of religious groups are ministers and which aren’t? Isn’t that the problem all of this was supposed to avoid?

Finally, we have to think of the effect on our civil society that a policy of deferring heavily to churches would have. Do we really want to encourage, even reward, a nakedly antisocial argument like that made by the Lutheran school here, i.e., that it is religious insubordination to make a rights claim under federal law? All subgroups of a large population need loyalty to survive. But do we want people ghettoizing themselves, and being forced to choose their faith over their rights? It is reminiscent of the Cosa Nostra code of omerta (or, for that matter, the more informal American Jewish code on criticizing fellow Jews expressed by reviewers of Portnoy’s Complaint as “not in front of the goyim”), and g and I don’t think this is the sort of attitude that promotes healthy attachment to democracy and liberty.

So this case, which is so much larger than the brief treatment I have given it, poses a serious problem for the Supreme Court. The holding in this case, even if it is a “technicality” holding that says the Court can’t decide the merits, will answer a lot of questions about the First Amendment and religious freedom. If I were a church leader, I would hope for an outcome that didn’t fully insulate my institution from suits making rights claims. How good will it look to be the only employer in the United States who can brazenly operate with contempt for the hard-won gains of federal anti-discrimination law?