Legal Commentary

Today, the Supreme Court agreed to hear what (I think) might be its most important religious-freedom case  in a long time.  The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC.  (More here, at the Religion Clause blog.)

The case does not involve what?s become the usual stuff of the Court?s church-state caselaw:  prayer at football games, war-memorial crosses in the desert, manger scenes and Ten Commandments monuments in public parks.  Nevertheless, again, this case is huge, and it is about, at its heart, what I think really matters.

As readers probably know, the question in the case is whether antidiscrimination laws ? like, for example, the Americans with Disabilities Act ? allow courts to review hiring-and-firing decisions involving ?ministerial employees.?  In this particular case, a lower federal court had ruled that parochial-school teachers who teach primarily "secular subjects" are not ?ministerial employees?, and therefore are covered by the Act.

 The Supreme Court should reverse this decision.  Although there are many difficult questions to be asked, and many fine lines to be drawn, when it comes to interpreting and applying the First Amendment?s religious-freedom guarantees, it cannot be the role of secular government to second-guess the decisions of religious communities and institutions about who should be their ministers, leaders, and teachers, any more than they should review their decisions about the content of religious doctrines.  This, it seems to me, is what church-state separation is really about.  Now, to be sure, not every employee of a religious institution is a ?ministerial employee?, and the Court's decision will almost certainly be more about where to draw the line (between "ministerial" employees and others) than about whether the Constitution requires some kind of "ministerial exception."  The former question is, to be sure, tricky; the latter, though, should not be.  The point is not that religious institutions and employees are ?above the law? but rather that there are some (not very many, to be sure, but some) that our Constitution does not allow secular governments to answer.