On Jan. 11, the U.S. Supreme Court rang the religious liberty bell loud and clear in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. It unanimously upheld the right of religious organizations to choose their own ministers, in a case between a church school in Michigan and its former employee and a federal government agency.
The Court ruled in favor of the church, adopting the reasoning of its pro bono advocates, The Becket Fund for Religious Liberty and University of Virginia Law School Professor Douglas Laycock. The Court (in the Chief Justice's unanimous opinion) declared that both the Free Exercise and Establishment Clauses of the First Amendment provide "special solicitude to the rights of religious organizations" and "bar the government from interfering with the decision of a religious group to fire one of its ministers." The protection extends not just to priests and rabbis, but to any leader or teacher who "personifies" the beliefs of the religious community.
In a ringing rebuke of the Obama administration's cramped view of a church's freedom, all nine justices — including both Obama appointees — rejected its arguments as "extreme," "remarkable" and "untenable." The Court rejected the government's two-pronged argument that churches should enjoy no more freedom in choosing their leaders than any other social group, and even if they do, that freedom should be limited only to cases where the employee performed exclusively religious functions, rather than a mix of religious and secular ones.
The Court's rebuke echoes beyond this case to the Obama administration's tone deafness towards religious liberty in other areas. One example is the administration's new rule in August mandating abortion-causing drugs for all employer-provided health insurance plans. The rule will force some religious organizations to choose between honoring their pro-life convictions or providing their own employees with health insurance, which must now include free "preventative services" that encompass Plan B ("the morning after pill") and ella ("the week after pill").
The new rule exempts only those religious employers that primarily serve and employ members of their own faith, and whose purpose is to inculcate religious values. In practice, few religious employers would fit such constricted criteria. A Christian soup kitchen could lose the exemption simply because it feeds Jews, Muslims and atheists. Indeed, not even Jesus' ministry would qualify for the exemption because he fed, taught and ministered to non-Christians.
Similarly, in Hosanna-Tabor, when the administration argued that church autonomy should be confined only to those employees performing exclusively religious functions, the court responded, "[W]e are unsure whether any such employees exist." At the oral argument, the chief justice declared that not even the Pope would satisfy the administration's proposed test for such autonomy because he performs secular functions as the head of the Vatican state.
The administration is defending the abortion-drug mandate against challenges by the Becket Fund, on behalf of both Belmont Abbey College (a Catholic liberal arts college in North Carolina) and Colorado Christian University (an interdenominational Christian university outside Denver). Both schools believe that they cannot squeeze into the government's narrow exemption from the mandate, and both refuse to pay for abortion drugs because of their religious convictions.
Hearing the reverberations of the Hosanna-Tabor decision, the Obama administration should abandon its anti-religion stance in the abortion drug mandate. In Hosanna-Tabor, Justice Samuel A. Alito Jr. explained in his concurring opinion (joined by Justice Elena Kagan) that the Constitution forbids empowering the government to resolve issues of church doctrine and belief, which would result in "a civil fact finder sitting in ultimate judgment of what the accused church really believes, and how important that belief is to the church's overall mission."
Yet the Obama administration presumes to do exactly that in crafting an impractically narrow exemption to its abortion drug mandate. It has effectively judged that any religious conviction against abortion, contraception and sterilization is not really central to the mission of these religious schools and therefore should yield to the government's contrary policy priorities. One implication of Hosanna-Tabor is that the government has no right or competence to judge such matters. Instead, such judgment belongs only to the religious organizations themselves. The Constitution requires no less.
Hannah C. Smith twice clerked at the United States 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 was co-counsel at the Supreme Court for the Hosanna-Tabor case and is counsel in federal district court for Belmont Abbey College and Colorado Christian University.