Hosanna-Tabor v. Smith

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What’s the big deal with Hosanna-Tabor, yesterday’s unanimous Supreme Court decision supporting a religious school’s right to fire a teacher with ministerial responsibilities regardless of her health disability? Although the Court had never recognized a “ministerial exception” to federal anti-discrimination law before, lower federal courts have habitually done so. Most people would agree that religious bodies have a right to hire and fire ministers without government interference. In this case, the Court found that the teacher in question did indeed have sufficient religious responsibilities to qualify as a minister. Yet the NYT’s Adam Liptak judges Hosanna-Tabor “the most significant religious liberty decision in two decades.”

The big deal is that two decades ago, the Court substantially undermined the constitutional right to free exercise in Employment Division v. Smith (1990), a 6-3 decision written by Antonin Scalia that held that two Native American drug counselors could not go to federal court to claim a religious right to sacramentally ingest peyote as part of their membership in the Native American Church. Here’s the language of Smith‘s key holding:

Although a State would be “prohibiting the free exercise [of religion]”
in violation of the Clause if it sought to ban the performance of (or
abstention from) physical acts solely because of their religious
motivation, the Clause does not relieve an individual of the obligation
to comply with a law that incidentally forbids (or requires) the
performance of an act that his religious belief requires (or forbids) if
the law is not specifically directed to religious practice and is
otherwise constitutional as applied to those who engage in the specified
act for nonreligious reasons. See, e. g., Reynolds v. United States,
U.S. 145, 166
-167. The only decisions in which this Court has held that the First
Amendment bars application of a neutral, generally applicable law to
religiously motivated action are distinguished on the ground that they
involved not the Free Exercise Clause alone, but that

U.S. 872, 873]
Clause in conjunction with other constitutional protections. See, e. g., Cantwell v. Connecticut,
U.S. 296, 304
-307; Wisconsin v. Yoder,
U.S. 205
. Pp. 876-882.

Note the reference to Reynolds. That was the famous case that in 1878 turned down the Mormon claim to have a free exercise right to polygamy with the dictum: “Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices.” What Smith did was prevent a religious organization from going to federal court and saying, “Look, we know that there’s a neutral, generally applicable law that bars us from doing something we consider important to our faith, but we think we should be excused by the First Amendment from having to comply with it.” At least that is what Smith seemed to do until yesterday. Here’s what Chief Justice Jon Roberts, writing for the Court, had to say about that:

It is true that the ADA’s [Americans With Disabilities Act’s] prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of”physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.

Maybe ingesting peyote is an outward physical act distinguishable from being employed or not employed as the result of “an internal church decision that affects the faith and mission of the church itself.” But anyone who knows anything about Mormon theology knows that the LSD Church’s embrace of polygamy–“plural marriage”–was an internal church decision that affected its faith and mission profoundly. And it was Reynold‘s distinction between belief and practice that was used to rationalize the decision in Smith. One might add that being employed according to religious criteria seems more akin to
being married according to religious criteria than it does to partaking
of a controlled substance or engaging in some other outward physical

The bottom line is that, having been forced by the Justice Department to confront Smith directly, the conservatives on the Court significantly walked the Scalia doctrine back, without reversing Smith and annoying that famously irascible justice (who signed on to Hosanna-Tabor without so much as a concurring word). The Court’s liberal wing, which for two decades has opposed Smith and its progeny, was happy to go along with this restoration of religious freedom. Roberts’ dismissal of the contention that Smith foreclosed recognition of a ministerial exception no doubt had the liberals smiling up their sleeves.

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