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Noah Feldman: Why Supreme Court liberals joined conservatives on religion

Noah Feldman, Bloomberg Opinion on

Published in Op Eds

The Supreme Court has decided, 7-2, that teachers in Catholic elementary schools are not covered by employment discrimination law. This is a highly important expansion of religious exemptions from government regulation.

The Supreme Court had already given religious institutions an exemption for so-called "ministerial" employees. It has now gone substantially further, declaring that such institutions are entitled to "autonomy with respect to internal management decisions that are essential to the institution's central mission" according the majority opinion by Justice Samuel Alito, the justice most committed to expansion of religious exemptions.

It's remarkable that the two pragmatist liberal justices, justices Stephen Breyer and Elena Kagan, joined that opinion. For Breyer and Kagan to take this step suggests that they may have been trying to show that they're willing to cross traditional liberal lines to avoid a 5-4 decision -- hence protecting the court from the perception of deep ideological division. The move by Breyer and Kagan should be juxtaposed with two other rulings this term: the Louisiana abortion case, where Chief Justice John Roberts crossed ideological lines, and the LGBTQ discrimination case, where Justice Neil Gorsuch also did so.

The background to this case reveals the ruling's far-reaching nature. In a 2012 decision, Hosanna Tabor v. EEOC, written by Chief Justice John Roberts, the court said that the free exercise of religion guaranteed by the First Amendment requires that congregations be exempt from antidiscrimination law when they choose their ministers. Robert's majority opinion said that the First Amendment "protects a religious group's right to shape its own faith and mission through its appointments" -- a rather narrow explanation. His opinion did not refer to the autonomy of the church, or indeed use the word "autonomy" at all.

Writing in a separate concurrence, however, Alito used the word autonomy repeatedly. The idea of the autonomy of the church as an institution has intellectual roots in Catholic thought and has been developed over the long history of interaction between the Catholic Church and various state authorities. In contrast, the focus on "ministers" in the Hosanna Tabor case reflects a more Protestant vision of religious liberty, one focused on the image of individual believers and practitioners. It's no coincidence that the very word "minister" resonates more in Protestant than Catholic vocabulary.

In this opinion, the notion of the autonomy of the church is ascendant. Alito re-wrote the logic of Hosanna Tabor, declaring that "the constitutional foundation for our holding (there) was the general principle of church autonomy ... independence in matters of faith and doctrine and in closely linked matters of internal government."

This counts as an intellectual victory for Catholic legal scholars like Richard Garnett of Notre Dame, who have long argued that the First Amendment should be interpreted in the light of church autonomy.

In practice, the consequences of a church autonomy doctrine could be extremely far-reaching. Consider, for example, unionization of faculty or graduate students at Catholic universities. Under a more Protestant, ministerial exception theory, professors of mathematics or English wouldn't likely be exempt from federal unionization laws. But under a theory of church autonomy, the academic operations of a Catholic university would likely be exempt from these rules. That is the clear implication of the court's statement that a religious institution gets autonomy over its own "internal management decisions that are essential to the institution's central mission."

The elementary school teachers considered in the case taught religion as well as secular subjects and worshiped alongside the students. It seems altogether reasonable to include them within the ministerial exception, especially to avoid judicial nit-picking over just how much religious instruction is necessary to make a teacher "ministerial." Breyer and Kagan's votes are defensible on those terms.

The argument that the liberal pragmatists should not have joined the majority comes from the dissent filed by Justice Sonia Sotomayor and joined by Justice Ruth Bader Ginsburg. In Sotomayor's telling, the majority collapsed the more nuanced inquiry into ministerial status required by the Hosanna Tabor decision into a "simplistic" question of "whether a church thinks its employees play an important religious role." In her view, the majority opinion invites religious institutions to define centrality to their mission as broadly as they like -- and effectively promises them that the courts will defer to their judgment. The result, she argued, would be to allow religious institutions to make buying decisions on the basis of a prohibited animus that had nothing to do with their religious beliefs.

 

To judge whether Breyer and Kagan did the right thing or not, it's worthwhile to pair this decision with Gorsuch's landmark decision applying Title VII antidiscrimination law to LGBTQ people. The broadening of the ministerial category pretty much guarantees that religious institutions will be able to discriminate against LBTQ employees by defining their roles as mission-relevant. Breyer and Kagan are now on board with that result.

But even without Breyer's and Kagan's votes, there would have been a majority to allow that to happen. And it could be argued that, by joining the conservatives here, Breyer and Kagan helped bring about the result in the LBTQ case, in which Gorsuch and Roberts defected from conservative orthodoxy.

Today's justices don't horse-trade cases in any overt sense. But they all fully understand the gravitational effects that the different cases decided in a given term have on one another. Today, church autonomy is ascendant and religious exemptions have been substantially extended. But we have to assess that result in the context of the other blockbuster decisions of this term, in which liberals won some unexpected victories.

About The Writer

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast "Deep Background." He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President."

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