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Hannah C. Smith: High court set to hear religious liberty case

Published: Thursday, Sept. 29 2011 2:00 p.m. MDT

Indeed, if the "ministerial exception" did not exist, the landscape of religious life in our country would likely be vastly different. Because of the constitutional protection afforded by the "ministerial exception," churches can lawfully select leaders and the authorized bearers of its message based on their sincerely held religious beliefs.

Catholics and Orthodox Jews can have an all-male clergy. Jews, Muslims and Hindus can base leadership decisions on ethnicity and descent. And where marital-status discrimination is prohibited, churches can "discriminate" based on celibacy.

If, as the EEOC urges, the Supreme Court decides the ministerial exception should not exist at all, the floodgates open for lawsuits claiming all sorts of "discrimination" by religious institutions that heretofore had been accepted as a legitimate form of religious expression.

More likely, the Supreme Court will recognize the danger of eliminating that exception and will uphold the doctrine as grounded in our constitutional history and applicable to the teacher in this case. Whatever the outcome, the decision will likely have a significant impact on the level of autonomy of many religious institutions in this country.

Hannah C. Smith twice clerked at the U.S. Supreme Court and is a member of the Deseret News Editorial Advisory Board. She is senior counsel at The Becket Fund for Religious Liberty, a public interest law firm that defends religious liberty for people of all faiths. The Becket Fund is co-counsel at the Supreme Court for the Hosanna-Tabor case.

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