More Evidence That What Counts as 'Religious Freedom' Is Always In Dispute

SCOTUS unanimously upheld the ministerial exception five years ago. It's already being challenged again.

In a new feature for America magazine, I explore how worried people of faith should actually be that their religious freedom is under assault. Some believers' claims can seem outlandish, as when one woman incorrectly told CNN before the election that pastors can be taken to jail if they refuse to solemnize a same-sex wedding. Surely the state knows better than to, say, try to dictate a church's operations. Doesn't it?

But as a recent court hearing in New York makes clear, the line between something the government would obviously never do because it would clearly be a violation of the First Amendment, on the one hand, and something the government obviously has the right to do and how dare you suggest your fairy tales should let you get out of following the law, you bigot, on the other hand, is moving all the time.

In its 2012 decision in Hosanna-Tabor v. EEOC, the Supreme Court held that anti-discrimination laws could not be used to interfere with a religious institution's right to select its own faith leaders. The ruling rested on a principle known as the "ministerial exception." In the U.S., a company isn't allowed to refuse to hire someone to a leadership position (or most other positions) because of the applicant's gender or religion. But if that rule were enforced against religious organizations, a Catholic church could be prosecuted for not ordaining women (or, even more absurdly, Protestants, Buddhists, and atheists) as priests. If that prospect doesn't disturb you, try substituting "Islamic mosque" for "Catholic church" and "imam" for "priest."

It's an important precedent. In fact, people sometimes point to Hosanna-Tabor as evidence that conservative Christians who are worried the government is coming for them should cool their jets. In my America piece, I quote the University of Virginia law professor Douglas Laycock noting that "The ministerial exception decision was unanimous. It's not going anywhere."

But even a ruling from all nine justices doesn't foreclose the possibility of expensive lawsuits, as one Christian school is discovering. Earlier this week, St. Anthony School and the Roman Catholic Archdiocese of New York were forced to appear in a Manhattan courtroom to argue that the state can't interfere in their hiring and firing decisions. The suit was brought by a former principal, Joanne Fratello, who says her employment termination violated civil rights law.

The key dispute is over what counts as a minister. A pastor clearly is, while a landscaper clearly isn't. But what about a school administrator?

In this case, as in Hosanna-Tabor before it, there is copious evidence the role in question did involve at least some religious ministry. A summary judgment siding with the school last year noted that Fratello's responsibilities included leading students in daily prayers and meditations, overseeing the religious education curriculum, and generally acting as a spiritual shepherd to pupils and faculty. Before she was hired, she was required to submit a letter confirming she's a practicing Catholic. She also signed a contract certifying she "recognizes the religious nature of the Catholic school and agrees that the employer retains the right to dismiss [the] principal" for any one of a series of reasons, including rejection of tenets of the faith.

But Fratello's attorney argues the ministerial exception should apply only to clergy and—importantly—only within the four walls of an actual house of worship. He wrote in a brief that "a Church itself" but "not Church-affiliated entities operating in the secular world" are protected from interference, later adding, "organized religion must not be allowed to trump American democracy's need for an [sic] non-indoctrinated and educated citizenry."

If the lawyer gets his way, it would constitute the rolling back of a precedent set unanimously by the Supreme Court just five years ago. (Hosanna-Tabor similarly featured a conflict between an educator and a religiously affiliated school.) It would also be the latest in a rhetorical trend seeking to establish that a person forfeits her First Amendment rights the moment she ventures out into the public square. That's a poor simulacrum of the robust liberty the Founders seemed to have in mind when they chose the clear and categorical language that "Congress shall make no law…prohibiting the free exercise" of religion. But it seems, more and more, to be catching on.

In the second half of the 19th century, the Supreme Court repeatedly upheld laws banning the practice of polygamy, despite outcry from members of the Mormon faith. (Subscribers can take a look at my long read in this month's issue of Reason titled "Christians Started the Wedding Wars" for a deeper dive on that.) Yet in 2013, the Supreme Court struck down a Utah law outlawing "bigamous cohabitation" that was part of the very same anti-polygamy legislation the high court had sustained 100 years earlier. And in 2015, as we all know, the justices located a fundamental right to nontraditional marriage in the Constitution.

As I put it in my piece for America, "If something that was constitutional yesterday can be unconstitutional today, it is impossible to predict what might happen tomorrow." Likewise, if something that counted as free exercise yesterday can be fair game for government regulation today, our constitutional protections mean very little in the end.