Editorial: Religion's status

Published: Saturday, Jan. 14 2012 12:00 a.m. MST

This week the Supreme Court handed down a unanimous decision in a religious liberty case.

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This week the Supreme Court handed down a unanimous decision in the most important religious liberty case of this century.

When the high court agreed to consider the case of Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission last spring, we expressed "cautious optimism." We were hopeful the court would use this case of an EEOC challenge to the firing of a commissioned minister at a Lutheran school to clarify the right of religious organizations to determine who leads, teaches and ministers.

But last fall our optimism faded when the solicitor general's office abandoned its defense of the principle of religious autonomy at the heart of the case. And despite superb advocacy for Hosanna-Tabor from University of Virginia professor Douglas Laycock and the Becket Fund for Religious Liberty, the questioning in oral argument suggested a court potentially divided over fairly technical issues.

So we were thrilled on Wednesday when the Supreme Court unanimously confirmed the right of religious organizations to select their own ministers and religious leaders.

In order to understand the full import of this case, one must recognize how Chief Justice John Roberts' powerful and historically grounded opinion goes well beyond simply clarifying what has been called "the ministerial exception." The ministerial exception is the idea that with regard to who leads and ministers within a religious organization, the final decisions of the religious organizations are exempt from governmental review under policies such as anti-discrimination laws. That the ministerial exception is the law of the land was certainly clarified in this week's decision.

But the court, by extension, also held that religion enjoys a preferred constitutional status. Specifically, the free exercise clause of the First Amendment gives religious organizations rights beyond those that secular organizations enjoy through their important rights of association and expression.

One might have thought that the pre-eminence and plain language of the First Amendment's religious clauses already conferred a special status to religious freedom. But ever since the Supreme Court's devastating 1990 decision in Employment Division vs. Smith (which held that the free exercise clause does not create a barrier to the enforcement of neutral, generally applicable law) it has been difficult to know whether religious liberty entailed anything more than standard associational freedom.

Roberts' decision helpfully limits the muddle made by the court in 1990 by drawing a sharp distinction between government regulation of outward physical acts by individual adherents to a faith versus "interference with an internal church decision that affects the faith and mission of the church itself."

It is true that Justices Thomas, Alito and Kagan provided additional opinions — but they are concurring opinions and seek to extend, rather than limit, the reasoning of the majority opinion.

Hosanna-Tabor demonstrates not only the careful thinking and craftsmanship of Chief Justice Roberts, but also his powerful intellectual and organizational leadership. Given the unfortunate precedents of the past on similar issues, given the singular collapse of principled guidance from the solicitor general's office and given the contentious social issues at stake, the court could have splintered badly. Roberts, however, unified the court around history, principle and the Constitution's text to remind the nation of the special constitutional status afforded religion. For that clear and harmonious result we are very grateful.

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