Hosanna-Tabor Lutheran Evangelical Church v. EEOC

From the perspective of the respondents in Hosanna-Tabor, Cheryl Perich and the EEOC, the facts and history of litigation outline a straightforward case of workplace discrimination, retaliation, and wrongful termination. Perich, a teacher at a K-through-8 school (Hosanna-Tabor) in Redford, Michigan, had taken a leave of absence from work to cope with a medical disability. After undergoing treatment and being cleared to return to work by her physician, Perich attempted to resume her teaching position. When she announced her intention to return, she was asked by representatives of the school to resign her position. After the principal indicated that Perich would likely be fired if she did not resign, Perich indicated to the principal that she would seek legal recourse if she were not allowed to resume her teaching position. Perich was fired and the EEOC brought suit on her behalf against Hosanna-Tabor for violation of the Americans with Disabilities Act (ADA). Perich and Hosanna-Tabor both moved for a summary judgment, which the District Court granted in the church's favor. The District Court's decision was reversed by the Court of Appeals, which decision was in turn reviewed by the Supreme Court.

From the perspective of the petitioner, Hosanna-Tabor, a series of qualifications, details, and nuances should be added to these bare facts to get to the central issue in this case. Hosanna-Tabor was not simply a school, but rather a religious school operated by the Hosanna-Tabor Lutheran Evangelical Church, a congregation of the larger Lutheran Church Missouri Synod (LCMS). Cheryl Perich was not simply a teacher, for although she began working at Hosanna-Tabor under a one year contract as a “lay” teacher, by the time of this dispute, she had become a “called” teacher with the official title of “commissioned minister” of the church. Lay and called teaches performed the same job functions at Hosanna-Tabor; called teachers, however, had completed a course of study and been hired on an open-ended basis by a vote of their congregation. (In contrast with “ordained” ministers, exclusively men, “who serve in the office of public ministry [also known as the pastoral office] and have the power to preach the Word and administer the Sacraments,” commissioned ministers, including both men and women, “act as auxiliaries to the pastoral office, performing certain important functions of that office,” such as teaching.) Perich did not bring suit on the ground of discrimination simpliciter, but rather on the ground that Hosanna-Tabor retaliated against her for threatening to take legal action against the school.Footnote ³ Such an appeal to secular courts, Hosanna-Tabor maintained, violates the tenets of the Lutheran faith and of LCMS practice, according to which disputes should be subject to internal arbitration and conflict resolution.Footnote ⁴ More fundamentally, it claimed that there are a series of exceptions to the law — bundled as a “ministerial exception” — which bar the courts from applying the ordinary strictures of labor law to the special relation between churches and their ministers because the selection of ministers is so vitally important to the church (see, Lund Reference Lund2011).

The Court took up the last of these issues in Hosanna-Tabor asking if the Constitution mandates a “ministerial exception,” and if so, if Perich qualifies as a minister for the purposes of that exception. Unsurprisingly, the petitioner and respondents made sharply opposed arguments. Hosanna-Tabor's brief maintained the constitutionality of a “ministerial exception” that bars courts from intervening in disputes over the hiring or firing of ministers. It argued that this exception is grounded in three clauses of the First Amendment. The Free Exercise Clause guaranties churches the right to select the people who perform important religious functions on its behalf; the Establishment Clause bars government from appointing people to those same positions and/or deciding the important theological questions involved in making such appointments; the Freedom of Association Clause guarantees churches the right to control the content of their message and thus to decide who are appropriate members and leaders. Hosanna-Tabor also maintained that Perich was, indeed, a minister for the purposes of this doctrine because her role as a teacher was essential to the church's religious purpose of passing its faith to a new generation and because the church genuinely believed her to be a minister and held her out to the world as such. Hosanna-Tabor's argument was remarkably clear cut: religious freedom forbids the government from interfering with a church's appointment or removal of its ministers, and from questioning a church's definition of its ministry. Drawing extensively on precedents set by lower courts, it argued that the “ministerial exception extends to all those the church selects ‘to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large’” as “These are objectively important functions in any religion” (Brief for the Petitioner, 22). Government may not intervene in questions about the employment of ministers because, the argument goes, the question of who is or is not fit to be a minister is essentially a “controversy over religious authority or dogma” that can only be decided by the church in question (Brief for the Petitioner, 23).

The EEOC's opposing brief was similarly clear cut. It argued that Congress had deliberately prohibited religious organizations from retaliating against employees for contesting workplace discrimination when it enacted the ADA. It argued furthermore that this portion of the ADA is not unconstitutional. Relying on the logic of Smith, the EEOC argued that the ADA is a “neutral and generally applicable law,” and that there can be no exemption from it on the grounds that it burdens the free exercise of religion. It argued that requiring Hosanna-Tabor to retain Perich as a teacher would not have impinged on Hosanna-Tabor's rights of expressive association, and that her retaliation claim could be adjudicated without entangling the courts in theological questions, and thus without implicating the Court in the establishment of religion.Footnote ⁵ Disputes involving ministers should be handled on a case-by-case basis rather than by granting a blanket exemption which would strip a large number of employees of civil rights protections, according to the EEOC's argument, and it suggested that if a “ministerial exception” were to retained, it should be retained only for the much more limited number of clear cut cases — such as those involving ordained ministers, priests, rabbis, etc. — rather than be extended to the much broader class of borderline cases that includes parochial school teachers.

The Court's decision was unanimous and its opinion unambiguously affirmed the constitutional standing of the ministerial exception. Its opinion mandates a startling deference to churches on the two key questions at stake: which employees count as ministers, and which laws govern employment relations between churches and their ministers. More importantly, and more broadly, the Court's opinion is grounded on a novel principle of church autonomy.Footnote ⁶ Its reasoning here is remarkably clear and its decision categorical: the First Amendment's guarantee of religious freedom requires that churches exercise unqualified autonomy in their internal governance. In the words of the Court:

Justice Thomas's concurring opinion crystallizes this argument more succinctly still:

Rather than affirming the authority of general and neutral laws as suggested by the jurisprudence of Reynolds v. U.S. (1878) and Employment Division v. Smith, or testing and balancing the interests and concerns of governments against those of religious communities as suggested by the jurisprudence of Wisconsin v. Yoder (1972), the Court's ruling in Hosanna-Tabor imposes a categorical distinction that grants forms of autonomy ordinarily reserved for sovereign states to corporate bodies enmeshed within the state. For the purposes of defining its ministers and deciding the terms of their employment, in the words of Reynolds repeated in Smith, Hosanna-Tabor makes “the professed doctrines of religious belief superior to the law of the land,” effectively allowing each church “to become a law unto [itself].” Hosanna-Tabor is particularly important insofar as it clearly renders this surprising logic of church autonomy; it suggests as well how the categorical distinction between church and state that underwrites church autonomy is in turn grounded in the political fiction of modern secularism. The following sections consider this decision from two related perspectives: (1) that of defining religion for the purposes of protecting religious freedom and (2) that of deciding the protections appropriate for religion so defined.

Defining Religion in Hosanna-Tabor

Hosanna-Tabor highlights a difficulty within modern secular legal regimes: where laws protect the freedom of religion, courts must of necessity decide what is (and what is not) religion for the purpose of applying such laws. The Court is in a bind insofar as recognizing some traditions as worthy of protection and others as not runs the danger of establishing those religions in violation of the First Amendment. As Winnifred Fallers Sullivan (Reference Sullivan2005) has argued, however, courts simply cannot avoid this difficulty, for it is not just practically difficult but rather logically impossible to avoid defining “religion” for the purpose of protecting it. Sullivan shows the contingency and instability of the very category of “religion,” and demonstrates how modern law itself is deeply implicated in constructing, disseminating, and governing particular forms of religion. The instability of this key category renders the ideal of religious freedom, along with the category of religion, inescapably political — by which I mean here essentially contested, partisan, and saturated by power (Asad Reference Asad1993; Smith Reference Smith1982). Sullivan elucidates the tendency of courts to recognize and protect quite particular forms of religion under the auspices of religious freedom while excluding other forms. More directly, Sullivan argues, judges in the United States expect religion to resemble mainline protestant Christianity, which is to say that they expect religion to revolve around propositional beliefs, based in sacred texts that are authoritatively interpreted by a clergy within the context of a congregational organization. As a result, courts tend to protect religion in these forms, and tend not to protect forms of religion that diverge from that model (cf. Gunn Reference Gunn2003 for an international perspective).

Hosanna-Tabor extends Sullivan's argument by showing how the manner of recognition accorded by the Court — religion as what takes place within an autonomous church — conditions and shapes the traditions that are recognized as such. Hosanna-Tabor does not acknowledge the structural impossibility of distinguishing the activity of government from a pre-existing and autonomous sphere of religion, and thus the impossibility of neutrality. “When a minister who has been fired sues her church alleging that her termination was discriminatory,” the Court concludes, “the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way” (Hosanna-Tabor, 21–22). In Hosanna-Tabor's rhetorical construction, it is the constitution and not the court that decides that “the church must be free,” and that this freedom entails autonomy. However, politics in general, and courts in particular, are called upon to determine which actions will be recognized as religious, to determine over and again what is religious and what is political on a terrain in which religion and politics are both deeply enmeshed and also constantly mutating and evolving.

It is an often remarked fact that secularism draws lines that create expansive public spaces from which religion is excluded (Rawls Reference Rawls1993; Connolly Reference Connolly2000). It is less often remarked that these same lines may also create deep private enclaves in which religious institutions are sheltered from social and political pressures. Such lines are drawn in contested and uneven fashion, case by case. Sullivan, for example, emphasizes the inherent injustice of protecting some religious communities while excluding others. Hosanna-Tabor focuses attention on another problem that may prove just as serious: even the individuals, communities, and traditions that are “protected” are subject to pressures that reshape them as they are incorporated as “religious” under the law. Having acknowledged that the Court must of logical necessity define religion for the purposes of protecting religious freedom, and that this necessity involves it in non-trivial problems, we can now ask more about the likely consequences of the definition of religion offered in Hosanna-Tabor.

Protecting Religion in Hosanna-Tabor

Citing with wry humor a “writ sent by Henry II to the electors of a bishopric in Winchester, stating: ‘I order you to hold a free election, but forbid you to elect anyone but Richard my clerk,’” the Court acknowledges that its new ideal of religious freedom as church autonomy tallies poorly with the actual historical circumstances of church-state relations (Hosanna-Tabor, 7). Combining a striking suggestion with extreme understatement, the Court allows that the freedom of religion from political interference “in many cases may have been more theoretical than real” (Hosanna-Tabor, 7). However, the Court's decisions smooths over the implications of this distance between the “theoretical” and the “real.” In this section, I first parse the Court's treatment of that distinction more carefully, and then suggest that in Hosanna-Tabor the Court applies a certain theoretical understanding of religion in ways that are likely to remake reality when they are implemented to protect religion so imagined.

The Court's peculiar locution, “more theoretical than real,” recalls the historian Edmund Morgan's concept of a “political fiction,” as a particular kind of “make-believe” required by political actors. Such fictions are neither precisely true nor false, yet they constrain behavior and they are essential to the creation of political worlds. Morgan's chief examples of political fictions include the “divine right of kings” to rule, and the “sovereignty of the people” that largely replaced it in the modern world (Morgan Reference Morgan1989). When the Court concludes that “the First Amendment has struck the balance for us,” and that the “church must be free to choose those who will guide it on its way” despite the “interest of society in the enforcement of employment discrimination statutes,” (Hosanna-Tabor, 21, 22) it rehearses the fiction that judicial decisions are strictly governed by the text of the Constitution (which is, again, neither simply true nor false, but a fiction that constrains the behavior of judges and adjudged parties alike). More importantly, here, it also recapitulates the fiction of a secular polity in which religion has been set apart and is effectively separate from governance. This, of course, is the key fiction of modern secularism that “religion” is something “special,” something that is and should be set apart, something that is separate from other aspects of life.

The Court observes that “Controversy between church and state over religious offices is hardly new,” before stepping above that fray to sketch 600 years of comparative Anglo-American history from the signing of Magna Carta to the presidency of James Madison (Hosanna-Tabor, 6). There are a number of remarkable dimensions to the Court's history, but one deserves special attention. In producing such an extensive pedigree for religious freedom — enshrining it within the foundations of English and later US American liberty — the Court reifies the problem of religious freedom, suggesting that it is addressing one and the same problem throughout this history, namely the interference of government within what is now recognized as the proper sphere of religious and church autonomy. The Court's narrative frames the emergence of religious freedom in the American colonies as a response to the failure of this freedom in England: “Seeking to escape the control of the national church,” the Court argues, “the Puritans fled to New England, where they hoped to elect their own ministers and establish their own modes of worship” (Hosanna-Tabor, 7). And, “It was against this background that the First Amendment was adopted,” according to the Court, for “familiar with life under the established Church of England the founding generation sought to foreclose the possibility of a national church” (Hosanna-Tabor, 8). That the Court's sweeping history is not likely to pass muster with contemporary historians, and that it treats a particular historical construct — i.e., the problematic of religious freedom in 2012 — as essentially unchanged since 1815, indeed since 1215, are beside the point. What is more important to note here is how the Court projects an absolute, age-old distinction between the spheres of religion and of politics — a distinction that it only notes in passing is “more theoretical than real” — to implement a new doctrine of church autonomy that is likely to produce dramatically new blends of religion and politics in public life.

Operating within the fiction that it reaches impartial decisions, guided by the strongest arguments, within the tight constraints of Constitution, the Court's silence on the more controversial political context of its decisions is not surprising, and this can partially explain its preference for the long historical view of religious freedom. Scholars and advocates too typically engage in debate at this longer scale. Douglass Laycock, a Professor of law and advocate in Hosanna-Tabor as well as Boerne v. Flores (1997), Town of Greece v. Galloway (2014), and Holt v. Hobbs (2015), for example, has argued that the principle of autonomy is grounded in the proper understanding of the First Amendment (Laycock Reference Laycock1981). Marci Hamilton, a Professor of law and advocate for the opposing side in Boerne, on the other hand, has argued that the concept of church autonomy “simply does not make sense in the context of the larger republican theory of the Constitution,” for “Republican liberty signifies government in pursuit of the common good, when no citizen is subject to the unfettered will of another,” and yet “church autonomy would permit religious entities to avoid being legally accountable for the harm they have caused” (Hamilton Reference Hamilton2004, 1110). My point is not to intervene directly in such debates, but rather to note the rigidity of their key terms — religion, religious freedom, autonomy, republican liberty — and to suggest that the contests they engage might be seen and decided differently from a perspective that is focused upon the continual transformation of these categories in their profound interrelation.

An example can help to draw this point out here. Hosanna-Tabor turns to Madison's actions as president to support the notion of a ministerial exception, but in making a strong case for autonomy, it might have drawn on the argument of his Memorial and Remonstrance against Religious Assessments that religion “is precedent, both in order of time and in degree of obligation, to the claims of Civil Society,” and therefore “wholly exempt from the cognizance of civil society.” Madison's argument, like the Court's, is a-historical on its face, but on close examination it would provide a dubious foundation for the Court's conception of church autonomy. Both the Court and Madison agree upon the value of religious freedom, but where the Court identifies religion with the institutions and communities whose autonomy it seeks to establish and protect, Madison had identified religion with individual conscience with the consequence of undermining such institutions. Although Madison makes strong claims on behalf of “religion,” the clear and intended effect of his Memorial and Remonstrance was to undermine the established privilege, power, and authority of “churches” — in this case Virginia's Episcopal establishment (cf. the history cited by the court, McConnell Reference McConnell1990). The point here is not that the Court's understanding of religion is somehow wrong; the point is rather that the basic contours of religion, religious freedom, and republican liberty have shifted considerably over time, and that interventions such as the Court's decision in Hosanna-Tabor contribute to those shifts.

Changes in the operative conceptions of religion and the parameters of the protections afforded to religion are legible across texts such as the Memorial and Remonstrance, Smith, Hosanna-Tabor, and Hobby Lobby. This observation that the definition of religion and that the specification of the protections appropriate to it is contingent and shifting is not particularly novel but it is not trivial either. This general observation can be sharpened by noting how a certain fiction of secularism — a perspective that is, in the Court's words, “more theoretical than real” — conditions the current forms in which religion is recognized and protected, and how the implementation of these theoretical forms contributes to changes in social reality. Where Madison had defined religion as a matter of individual conscience, this had the effect of undermining an existing religious establishment; where the Court in Hosanna-Tabor defines religion as a matter of church autonomy, this has the effect of undermining the universality of citizenship and the reach of anti-discrimination law. As the amicus curiae briefs filed on behalf of Perich and the EEOC point out, Hosanna-Tabor's broadening of the ministerial exception has direct implications for tens of thousands of employees.Footnote ⁷ Justice Ginsberg's dissenting opinion in Hobby Lobby, as we will consider further below, points out that extending religious freedom beyond churches to include businesses corporations holds the potential to disseminate these implications throughout society.

Part of the interest of Hosanna-Tabor is the apparent ease and confidence with which the Court decided this case. Putting one of the central questions in quite pointed fashion in oral arguments, the EEOC's advocate suggested that even if the Constitution mandates the protection of religion, it is by no means obvious that Congress has violated the Constitution “by making it illegal … to fire a fourth grade teacher in retaliation for asserting her statutory rights” (Hosanna-Tabor, transcript of oral arguments). The opinion of the Court, however, labeled the EEOC's argument that courts should adjudicate discrimination claims against religious associations as they would claims made against any other expressive association a “remarkable view.” In oral arguments, Justice Kagan called it “amazing,” and Justice Scalia called it “extraordinary” three times. Insofar as the EEOC was arguing the importance of ensuring that a law against discrimination protects all citizens, as per the intention of Congress, the Court's marked skepticism — “remarkable,” “amazing,” “extraordinary … extraordinary … extraordinary” — and easy dismissal of this line of argument itself seems to be worth explanation. How, to put it another way, can one explain the Court's easy unanimity in deciding to effectively grant a wide range of employers the right to discriminate against their employees (in this case on account of a medical disability) against basic standards of fairness as well as the express intent of Congress?

In more general terms, the EEOC argued that religious freedom should be set in balance with an equally fundamental component of political freedom, namely the equality of citizens before the law. The ministerial exception, in this view, denies citizens access to the courts, which is essential for securing the protections of the law. There is nothing abstract or conjectural about this concern, for Perich's suit was dismissed summarily, and never proceded to trial; the Court's ruling in favor of Hosanna-Tabor makes dismissal of employment claims automatic once the employee in question is determined to be a minister and it broadens the definition of ministry immensely. The EEOC suggested in essence that the state's interest in preserving the freedom of religious institutions be set against the state's interests in combatting discrimination and ensuring its citizens access to the protections of law, and that these competing interests be weighed and balanced as in, for example, Yoder. The EEOC argued that churches could enjoy the same freedoms of association that protect other institutions; a solution that seeks to protect the integrity, rather than the autonomy, of religious institutions, while also protecting citizens' fundamental rights to equal treatment before the law.

The Court's decision on those difficult questions is eased by the “special” status accorded to religion within a distinctly modern secular fiction that separates religion from other aspects of social organization and, in the American context, asserts its priority over these. Among the sources of the Court's preference for a narrow and principled view — crystallized as a doctrine of ministerial exception grounded in the value of church autonomy as a central aspect of religious freedom — I want to suggest is a larger secular fiction that fixes the terms and priorities in question in an intelligible order and underwrites the certainty of the Court's judgment. For that preference to make sense at all, let alone for it to seem self-evident, natural to the point that dissent from it can be seen as extraordinary, amazing, or remarkable is the deep-seated conceptualization of “religion” as something that is “special” and apart from everything else. Ironically, perhaps, it is a distinctly secular fiction that here authorizes the autonomy of religion.

It would be difficult to overemphasize the historically grounded injunction to develop languages, institutions, and procedures for politics that are separate from — that float above and avoid entanglement with — the contentious and divisive issues opened by religious difference at the core of modern secularism (cf. Rawls Reference Rawls1993). Modern secularism obviously rests on the distinction between “church” and “state,” and this distinction rests in turn on a deeper distinction between “religion” and “politics.” A long historical imaginary underpins a great deal of contemporary thinking about religious freedom creating a dense, rich, and durable secular fiction in which “religion” and “politics,” “church” and “state,” are naturally and clearly demarcated from one another. It is this fiction that enables the Court's easy and certain distinction between a minister of the church and a school-teacher. The Court's offhand remark that religious freedom is “more theoretical than real” indexes an important process: the Court is not so much securing the autonomy of the church (which has never quite been “real”) as it is creating it by trying to press the world into conformity with a secular fiction. What the new ideal of religious freedom as autonomy obscures are actual conditions in which that freedom is always conditioned and compromised, and more importantly under which important dimensions of religion and politics are being reshaped (cf., Roy Reference Roy2010; Bowen Reference Bowen2010; Asad Reference Asad2003).

The secular fiction that underwrites the Court's assumptions about religion is both insufficient to capture the transformational tendencies at work in American religion and politics, and essential to the promotion of the very tendencies it misrepresents. In other words, by rendering religion autonomous, decisions such as Hosanna-Tabor contribute to remaking the religious field in the image of secularism. This is not to say that they secularize religion in the sense of consigning it to a private sphere. One might instead read such decisions as part of a transformation of public life that crosses religious and political fields. Hosanna-Tabor reflects the remaking of patterns of authority, disciplinary power, accountability, and legal immunity in ways that undermine both the individual rights and the capacity for collective decision-making particular to liberal democracy, while enhancing the power of non-governmental public/private corporations, in this instance a church, in Hobby Lobby a for-profit business corporation. As I argue in this paper's conclusion, those tendencies are exacerbated by Hobby Lobby, and together these decisions index a new religious freedom with consequences for religious and political life.