Wednesday, January 11, 2012

Analysis: Some Thoughts On Church Autonomy After Today's Hosanna-Tabor Decision

Today the Supreme Court in the Hosanna-Tabor case applied the ministerial exception doctrine to require dismissal of a suit charging a church with a violation of the the Americans With Disabilities Act in firing a "called" teacher. (See prior posting.)

Chief Justice Roberts' opinion for the court made it clear that the ministerial exception doctrine is required by the Constitution.  He says that both the free exercise and the establishment clause bar government from interfering with the decision of a religious group to fire one of its ministers. Many free exercise cases relate to an individual's freedom to practice his or her religion.  This case, the Court makes clear, is instead about the institutional autonomy of the church.  Chief Justice Roberts early on focuses on the Magna Carta's protection of the Church of England, and emphasizes that:
the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices.
Chief Justice Roberts explains that:
Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.
However, Chief Justice Roberts' characterization of the case belies this rationale.  The Lutheran Church's faith or mission does not call for dismissal of a minister who has a health-related disability. Chief Justice Roberts fails to characterize this case as one in which the state interferes with a Church's decision made on theological grounds to hire or fire a minister.  Indeed, he specifically holds that this is irrelevant:
The purpose of the [ministerial] exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” ... —is the church’s alone.
Should the First Amendment really permit churches to stand above the law on matters having no doctrinal component to them?

Justice Alito's concurrence focuses on a much more persuasive basis for the Court's decision, one based on the church's concern about doctrinal matters:

The Roman Catholic Church’s insistence on clerical celibacy may be much better known than the Lutheran Church’s doctrine of internal dispute resolution, but popular familiarity with a religious doctrine cannot be the determinative factor.
What matters in the present case is that Hosanna-Tabor believes that the religious function that respondent performed made it essential that she abide by the doctrine of internal dispute resolution; and the civil courts are in no position to second-guess that assessment.

If the Religion Clauses broadly preclude the government from imposing a minister on a church, presumably they likewise preclude the government from preventing a church from hiring particular clergy. Does this mean that the federal government may not deport an alien who is in the United States illegally when that individual has been chosen to be the minister of a church? Does the principle preclude the state from arresting a minister who is charged with criminal activity because doing so would deprive a church of its chosen religious leader?  Where the Constitution was most concerned about autonomy-- Congress' autonomy from interference by the Executive Branch-- the Constitution did create at least limited immunity from arrest.

And if church autonomy precludes governmental interference in selection of those who will personify its beliefs, does it also preclude governmental interference in the design of church buildings that personify the Church's image to its adherents and to outsiders?  If so, how does that limit zoning laws? Indeed Justice Alito's explanation of church autonomy in his concurring opinion suggests a principle broader than just selection of clergy:
The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith.
Finally, by holding that the ministerial exception is constitutionally required, the Court seems to call for its application at least in every kind of litigation that deals with hiring or firing of a minister. So while the court says it is not deciding the issue, it seems difficult to envision a court being able to adjudicate a breach of contract claim by a fired minister against his or her church without the court also interfering in the church's choice of its leaders.