The unanimity and the smooth, no-heavy-lifting style of Chief Justice John Roberts's opinion in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (1) might give the impression that it was not a difficult case under past doctrine. Not so. For more than twenty years after the Court's decision in Employment Division v. Smith (2)--known as the "peyote case"--lower courts and academic observers had been wondering how to deal with the question of clergy hiring. (3) It is intuitively obvious to anyone with an understanding of American constitutional values that the Roman Catholic Church (and others including Orthodox Judaism, Eastern Orthodoxy, Islam, and many conservative Protestant denominations) must have a right to hire as clergy only men, just as other religious traditions may enforce other requirements seemingly at odds with secular law. Surely the separation of church and state protects the ability of religious groups to decide for themselves who should serve as their priest, pastor, or imam. Any other answer would generate a constitutional crisis. Yet Title VII and many state equivalents prohibit sex discrimination in employment, (4) and there is no statutory exception for religious employers.
Hosanna-Tabor did not involve the all-male clergy. It involved the dismissal of a minister whose primary duties were as a primary school teacher, allegedly in retaliation for asserting rights under the Americans with Disabilities Act. (5) But the underlying principle was the same. The questions presented were, first, whether the employment discrimination laws may constitutionally be applied to the hiring or firing of ministers, and second, how to define the reach of the ministerial exemption if it exists. (6)
The private plaintiff and the federal Equal Employment Opportunity Commission (EEOC) relied heavily on Smith. (7) In Smith the Supreme Court ruled that Oregon's ban on sacramental peyote use was valid under the Free Exercise Clause of the First Amendment. (8) More generally, the Court held that the Free Exercise Clause, the most natural source for a right of churches to hire or tire ministers without governmental interference, does not apply to neutral laws of general applicability. (9) The two challengers to Oregon's ban, both members of the Native American Church, had lost their jobs after ingesting peyote for sacramental purposes at a ceremony of their Church and were deemed ineligible for unemployment compensation because they had been discharged for work-related "misconduct." (10) On these facts, the Supreme Court declined to declare Oregon's prohibition impermissible, rejecting the claim that the Free Exercise Clause mandates religious exemptions from--and thus, gives protection against--neutral laws of general applicability. (11) Although the Court said otherwise, most observers regarded this holding as departing from earlier cases, notably Sherbert v. Verner (12) and Wisconsin v. Yoder. (13)
As a longtime critic of the Smith decision, (14) I would have preferred that the Court modify or overrule that decision, which would open up a straightforward way to reach the correct result in Hosanna-Tabor. It is evident, however, that the Supreme Court is too deeply invested in Smith to entertain the possibility of reconsideration.
I. REACHING THE RIGHT RESULT: ALTERNATIVE DOCTRINAL AVENUES
To lawyers working on Hosanna-Tabor before briefing and argument, there appeared to be three plausible doctrinal paths to reaching a decision in favor of the church without contradicting the holding of Smith. First, the Court could hold that the First Amendment's Establishment Clause, rather than the Free Exercise Clause, protects the right of churches to decide who would serve as their clergy. The Establishment Clause has never been interpreted to exempt neutral laws of general applicability, so it was available as a doctrinal hook to support the argument that churches can choose their clergy without limitation of secular laws. …