I’m still digesting the Court’s unanimous decision in Hosanna-Tabor.  But I thought to note something interesting (to me), given my current book project titled Tragedy and History: The Quality of Religious Liberty. 

In this post over at Mirror of Justice a few months ago, I predicted that the Court would issue a decision that reflected a highly particularized and deeply historically informed sensibility — historical both in a social and doctrinal fashion.  I think that Chief Justice Roberts’s majority opinion does just that.  Take a little tour of the decision with me.

First, notice the Chief Justice’s long discussion of English and early American history at pp. 6-10.  That discussion takes stock not only of several controversies in which James Madison offered a salient view of certain church-state matters, but of the broader historical firmament of American religious liberty.  In an opinion 22 pages long, that’s a fairly significant quantity of historical treatment.

Second, note also that the Chief Justice mentions not once, but twice, the fact that all courts of appeals to have considered the question have held that there is, in fact, a ministerial exemption.  But why?  Why should the Supreme Court care about this?  After all, it is superior to those courts and is not bound by their judgment.  And yet the Chief Justice chooses to emphasize the bare fact of the broad consensus about the existence of the ME.  It’s almost obverse stare decisis.  That may reflect at least in some measure the sense that the existence of that substantial doctrinal history is itself meaningful — itself a reason to recognize the ME with some independent force.

Third, after recognizing the existence of the ME, check out this line: “We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.  It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich.” (15-16) The Chief Justice has been described as a minimalist before, and the holding of the case (at 21) bears this out.  But this takes things a step further.

It seems to me that what he is saying here (and what is reflected in the rest of the opinion) is a highly particularized series of inquiries about the nature and function of Perich’s duties, what Perich herself did, and so on — a suite of inquiries — without reliance on any one of these inquiries as categorically dispositive.  In light of “the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church,” the ME applied, but the Chief was careful not to rest the decision on any one of those factors alone.  (18) He notes, for example, that the formal title alone would not necessarily in all cases trigger the ME (see also J. Alito’s concurrence).  Hence, my belief that the Chief Justice’s opinion reflects a particularistic approach which eschews reliance on any single value for determining when the ME applies.  Compare, on this front, Justice Thomas’s concurrence, which argues for a more absolute rule. 

I do have some criticisms of the Chief’s opinion (I know, I know, everybody’s a critic!): it does not take sufficient stock of the values operating against the ministerial exception.  He does say, somewhat quickly, that “[t]he interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” but he under-explores those interests, for my taste.  Indeed, I would wish — especially in light of the multi-factor approach that the Court adopts — that the decision were a bit longer in fleshing these interests out, for signaling reasons among others, and I also tend to think that the Chief treated too dismissively the distinction between an action for reinstatement and one for damages.  I think that distinction could matter, and it would have been better if the Chief had discussed a bit the contexts in which it could matter, even if it didn’t matter here.  I also did not find quite right the statement that “the First Amendment has struck the balance” between these values.  It might have been better, in my own view, to say that the balance has been struck by the Court, here and in this case, in light of the First Amendment.  But on the whole, I think the opinion fairly well reflects the method that I am trying to get across in my forthcoming book.  I also admire, and think worthwhile, the functionalist analysis of the term, “minister,” which Justice Alito discusses in concurrence, though I’ve got quibbles here and there with which I will forebear from taxing you.

3 thoughts on “The Historical and Particularist Quality of Hosanna-Tabor

  1. Marc:

    I appreciate the particularism of the Court’s opinion. I do wonder, however, whether the Chief Justice is staking out a position on the question of whether the Establishment Clause only “sought to foreclose the possibility of a national church.” Maybe I’m way off base here, but I find it curious that the historical portion of the opinion twice refers to efforts “to escape control of the national church” rather than, say, to efforts to prohibit any laws respecting an establishment of religion (including nonpreferentialist ones).



    Jeffrey Shulman
    Georgetown Law

  2. Jeffrey, thanks for the interesting comment. You may be right, though I doubt very much that at least some members of the rest of the Court would have signed on to that proposition if that was what the Chief Justice meant as a general matter with respect to the EC, rather than as a specific proposition about what church autonomy and the ministerial exemption is about. What do you think?

  3. I’m sure you’re right. I’m too suspicious a reader. (The curse of teaching literature for 20 years!)

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