Carl H. Esbeck (University of Missouri School of Law) has posted A Religious Organization’s Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment. As noted by Professor DeGirolami in an earlier post, Professor Esbeck co-authored an amicus brief in the case. The abstract of the article follows.
In Hosanna-Tabor, a teacher suing her employer, a church-based school, alleged retaliation for having asserted rights under a discrimination statute. The School raised the “ministerial exception,” which prohibits ministers from suing their religious employer. The Court held the exception was constitutionally required.
Before giving the facts that convinced it that this teacher was a “minister,” the Court had to distinguish the leading case of Employ. Div. v. Smith. Plaintiffs in Smith held jobs as counselors at a drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation. The Native American Church ingests peyote during a sacrament. Smith held that the Free Exercise Clause was not implicated when Oregon enacted a neutral law of general applicability that happened to have an impact on a religious practice. The Court admitted that the nondiscrimination law in Hosanna-Tabor was a general law of neutral application that happened to have an impact on the School’s ability to fire a teacher. It distinguished Smith.
There is now a class of cases to which Smith does not apply described as “an internal church decision that affects the faith and mission of the church.” The firing of the teacher was “internal,” meaning a decision of church governance. The firing of plaintiffs in Smith was “outward,” meaning that the state’s denial of unemployment did not regulate church governance. Moreover, the ingestion of peyote regulated in Smith was a “physical act,” whereas the firing of the teacher regulated by employment law was a “church decision.”
Obviously a sacrament is an important religious practice, and plaintiffs in Smith suffered a burden on religious conscience. But the point of Hosanna-Tabor was not to relieve burdens on conscience. If it were, then Hosanna-Tabor would have overruled Smith. What was remedied in Hosanna-Tabor was not a burden on conscience but interference with religious groups.
The question going forward is what types of suits fall into the Hosanna-Tabor category of church governance? Once it is determined that a suit falls within church governance, there is no judicial balancing because there can be no legally sufficient governmental interest to overcome religious autonomy.