The United States Supreme Court hasn’t always been religion’s best friend. But (as I’ve often said when discussing talking about the excessive power permitted to the judicial branch) one can always find any number of decisions one can agree with. This week’s unanimous Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, upholding a small Lutheran school’s right to decide who counts as a “commissioned minister” on its staff, is long-awaited, welcome news indeed for the survival of religious freedom in the United States.
Predictably, this morning’s New York Times lamented the decision’s “sweeping deference to churches.” But, in upholding the long recognized the concept of the “ministerial exception” – and doing so unanimously – the Court thus offered a much merited rebuke not just to the ideology of the Times but to that of the Justice Department. In “The Post-Modern Liberal State vs. Religion” (October 6, 2011), I noted that, during oral argument, when Justice Elena Kagan asked the government’s attorney if the 1st Amendment entitled the church to hire and fire employees without government interference, the Assistant Solicitor General replied, “We don’t see that line of church autonomy principles in the religion clause jurisprudence as such.” Justice Kagan characterized that response at the time as “amazing.” Then, when Justice Breyer asked how the government differentiated this case from that of a woman who might sue the Roman Catholic Church for gender discrimination for ordaining only men to the priesthood, the answer was “The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine.”
So this over-reaching government could conceivably decide someday that its supposed “interest in eradicating discrimination in the workplace” had suddenly become “sufficient to justify changing the way that the Catholic Church chooses its priests”! No wonder so many religious groups have recognized the central significance of this case for the survival of religious liberty in the United States!
Clearly, the concept of illegal discrimination has become one more weapon in abetting the postmodern liberal state’s secularizing aspirations. It’s obvious that all authentic churches and religious institutions in the United States have a strong interest in the outcome of this case. This decision - by a unanimous Supreme Court - is a timely reminder that the 1st Amendment is not about protecting an all-powerful State from the religions of its citizens but about protecting citizens’ religions from the threatening power of an unrestrained State.