What Comes After Hosanna-Tabor

Yesterday’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 control its employment of “commissioned ministers” on its teaching staff, is very good news indeed for religious freedom. Congratulations are due to the Becket Fund for Religious Liberty, to Professor Douglas Laycock of the University of Virginia (who teamed up with Becket in representing the school), and to writers of supportive amicus briefs.

The first thing to note is that Chief Justice Roberts and the other justices who wrote opinions were kinder to the Obama administration than it deserved. The administration came out entirely against the concept of the “ministerial exception” to anti-discrimination statutes, a legal principle that has been commonplace in the courts of appeals for nearly four decades. The Obama Department of Justice, representing the EEOC, took the position that some protection might be afforded to religious organizations on “freedom of association” grounds, which are only implicit in the First Amendment, but rejected any recourse to what the text of the amendment says about religious freedom. This, the chief justice mildly said, was “untenable.”

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