WASHINGTON — The U.S. Supreme Court opened its fall term by hearing oral arguments in a closely followed First Amendment case.

Hosanna Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 10-553, asks whether churches have the right to make employment decisions without government interference. Some constitutional scholars are hopeful that religious liberty will emerge unscathed, but that outcome is far from certain.

Hosanna Tabor Evangelical Lutheran Church in Redford, Mich., contends that the intrusion of the courts in this matter “would be a revolution in relations between church and state.” The U.S. Conference of Catholic Bishops backs that position, arguing that the nation’s courts have long supported the “ministerial exception.”

The bishops are deeply concerned that the Justice Department has sided with the Equal Employment Opportunity Commission, thus bolstering the challenge to the ministerial exception.

On Sept. 30, a press release issued by the USCCB employed unusually strong language to characterize the Justice Department’s stance in Hosanna Tabor as an “attack on the critically important ministerial exception, a constitutional doctrine accepted by every court of appeals in the country that leaves to churches (not government) the power to make employment decisions concerning persons working in a ministerial capacity.” 

“This case is hugely important for all Christian denominations and every religion. It is the first time the Supreme Court has heard a ministerial-exception case,” said Michael Moses, associate general counsel for the U.S. bishops’ conference.

Moses argues that it is “up to churches, not the government, to make employment decisions about people who are serving in a ministerial capacity. Whether a church fires a youth minister or hires a pastor, the government needs to keep its hands off these decisions.”

The EEOC counters that respecting the ministerial exception in such cases “would critically undermine the protections” in federal anti-discrimination laws.

Moses said it was “hard to predict the impact of the case until we see the opinion: There are different ways you can win or lose a case.”

The high court must decide whether Hosanna Tabor, which fired a teacher at its school, should be subject to federal anti-discrimination laws protecting disabled employees. After the teacher sued, the Equal Employment Opportunity Commission took up the case. The Justice Department filed on behalf of the former employee, challenging the ministerial exception.

‘Cautiously Optimistic’

Following oral arguments on Oct. 5, the bishops’ conference and other religious groups felt the justices are unlikely to adopt the most extreme position of the EEOC and the Justice Department, though no one is prepared to say whether there could be a more limited challenge to the ministerial exception.

That said, several important exchanges between the government’s lawyer and the justices gave hope to advocates for robust religious-liberty protections.

“I am cautiously optimistic. The court was visibly skeptical of the government’s position,” said Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia School of Law who represented Hosanna Tabor before the high court.

During the oral argument, Leondra Kruger, the U.S. solicitor general’s assistant who represented the Equal Opportunity Employment Commission, was asked whether the court should accommodate even a limited ministerial exception. Kruger responded that the justices should make no distinction between secular or religious employers.

“That is extraordinary,” Justice Antonin Scalia responded. “We are talking here about the Free-Exercise Clause and about the Establishment Clause, and you say they have no special application?”

More significantly, the liberal Justice Elena Kagan was also startled by the government’s stance. “I, too, find that amazing,” Justice Kagan remarked.

The Male Priesthood

Douglas Laycock said he had further cause for hope: “The government had one argument designed to cut off debate and knock out the ministerial exception in one punch: that under the court’s 1990 decision in Employment Division v. Smith, it’s enough that the employment discrimination laws are neutral and generally applicable, and those laws automatically apply to the hiring and firing of ministers. The court plainly rejected that idea, with the author of Smith (Justice Scalia) leading the way.”

Carl Esbeck, a professor at the University of Missouri School of Law, has described the government’s “preferred” position in the case as “religion-blind”: The government “doesn’t have to take into account that there are religious citizens with beliefs and practices. And that means there is no ministerial exception.”

Now, in the wake of the oral arguments, the religion-blind position is not expected to get much traction. “There are strong signs that the entire court is rejecting what Justice Kagan called the Department of Justice’s ‘amazing’ position,” said Ed Whelan, who blogs at National Review’s Bench Memos, where ongoing commentary on the oral arguments is provided by Notre Dame constitutional scholar Richard Garnett and others.

A news story on the Hosanna Tabor oral arguments, published in The New York Times, suggested that the EEOC could face an uphill battle: “There was widespread agreement,” reported the Times, “that the federal government’s proposed approach, which gives limited weight to the First Amendment’s religion clauses in disputes between religious groups and their employees, is too narrow.”

The question now is whether the religious liberty of churches could still be constrained in the court’s final decision, which is expected by next summer.

The government’s “fallback position,” said Esbeck, is that the ministerial exemption is only for clergy. And that raises questions about whether Catholic women religious would be covered under the ministerial exception and whether outsiders would decide who qualifies as “clergy.”

During the oral arguments, justices probed a range of potential problems associated with the government’s position. Chief Justice John Roberts noted that the government was not challenging the Catholic Church’s right to maintain an all-male priesthood and had focused on the public’s interest in defending anti-discrimination statutes protecting teachers. But his observation seemed to imply that the government’s position could be a moving target, with the countercultural practice of an all-male priesthood as a future concern.

“The belief of the Catholic Church that priests should be male only — you do defer to that,” the chief justice asked Kruger, while noting that the Lutheran Church may view its right to appoint its own ministers as equally central to its teaching. 

Kruger said the government was more concerned with intervening in a discrimination case involving a teacher than challenging the all-male priesthood “because the balance of relative public and private interests is different in each case.”

When Justice Stephen Breyer brought up the issue again, Kruger did not refer to the First Amendment in her response: “The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine.”

According to Laycock, Kruger’s responses suggest that the government’s position is “incoherent and unworkable, requiring courts to balance a great many factors and draw many fine lines, all in unspecified ways.”

The justices also expressed concern that the ministerial exception might be employed to shield churches from any challenge to discriminatory practices involving employees who are not clergy. As The New York Times pointed out: “If laws forbidding discrimination in employment applied fully to religious groups, the government could insist that the Roman Catholic Church allow women to serve as priests. If such laws do not apply to religious groups at all, a church could fire a janitor because he is black.” 

Laycock acknowledged that the “court worried a bit about how to decide who’s a minister.”  But he has concluded that the government’s “problems are much greater than ours, and I think the court will reaffirm the ministerial exception.”

But legal experts who advise U.S. churches on such matters say they are still concerned about how the high court will interpret what the religion clauses do have to say in such cases. It’s possible that the justices won’t hand down a unified resolution of this question, least of all a favorable one. There could be three opinions and, correspondingly, at a minimum, a lack of clarity regarding the rule that the lower courts will apply in the future.

Joan Frawley Desmond writes from Chevy Chase, Maryland.