The Unacknowledged Clash Between the Supreme Court’s Interpretation of the Religion Clauses and the Free Speech Clause of the First Amendment

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In 2011, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Opportunity Commission, the Supreme Court held that the religion clauses of the First Amendment, operating in tandem, required that there be some kind of a “ministerial exception” immunizing religious congregations from the requirements of civil rights laws that restrict employer discretion in hiring and firing decisions. The Court’s recognition of such a “ministerial exception” for congregational employers was actually unexceptional, in that every federal appellate court that had addressed the issued had reached a similar conclusion.

The far more difficult questions concerned the scope of this exception. Exactly which employees are subject to the exception and thus denied the protection of civil rights laws against discrimination, and which are not? Is the title of the employee dispositive or even relevant? How much weight should be assigned to the actual duty and functions of the employee?

The Court provided only limited guidance on these matters. The plaintiff in Hosanna-Tabor was a teacher who, after engaging in considerable study and undergoing extensive evaluation, had been commissioned a minister. The Court appeared to take multiple factors into account—relating to both her title and function—in finding that the ministerial exception applied to her case, freeing her employer from the constraints of civil rights laws.

Justice Roberts wrote for a unanimous majority and explained that “in light of these considerations—the formal title given [to the plaintiff] 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—we conclude that [the plaintiff] was a minister covered by the exception.”

In the current Term, the Court has elected to review two cases which may require that it address questions about the scope of the ministerial exception it was able to avoid resolving in Hosanna-Tabor. In these cases, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Darryl Biel, teachers are suing their religious-school employers for violating the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA), respectively. Neither teacher held the title of minister. The question for the Court will be whether teachers in religious schools fall within the ministerial exception based solely on any religious content or values they incorporate into the subjects that they teach.

Much could be written about the proper scope of the ministerial exception, but today we want to focus on the elephant in the room that the Court has rarely acknowledged in religious accommodation cases in which the Court interprets the Constitution to require or permit the government to exempt religious individuals and/or institutions from government regulations that secular individuals and/or institutions must obey. There is a stark, if largely ignored, conflict between religious accommodations and exemptions on the one hand, and core free speech principles which the Court has repeatedly recognized, on the other. We believe these ministerial exception cases cannot be fairly or thoughtfully adjudicated without taking these free speech concerns into account.

To describe this tension, we begin with what is perhaps the oldest and most universally accepted principle of free speech doctrine, namely, the prohibition against viewpoint discrimination. It is not hard to understand why free speech doctrine frowns on laws that discriminate based on viewpoint. Government distorts the marketplace of ideas most egregiously when it burdens one position on a salient and debated issue while leaving opposing positions unhindered. And this marketplace distortion is fundamentally inconsistent with the democratic self-governance foundation for protecting free speech in the first place. Put simply, competing viewpoints must be treated the same way by the government. One side cannot be treated more or less favorably than the other. Accordingly, government actions that run afoul of viewpoint neutrality are subject to the most rigorous standard of judicial review, and almost always invalidated.

Yet there is also a long and well established line of Supreme Court authority (often involving public high schools and public universities) that identifies religion as a viewpoint of speech. According to these cases, laws that discriminate against religiously expressive programs and activities constitute viewpoint discrimination, and must receive the strictest of judicial scrutiny. (Cases in this line of authority include Rosenberger v. Rectors and Visitors of the University of Virginia, Good News Club v. Milford Central School, and Lamb’s Chapel v. Center Moriches Union Free School Dist.)

Herein lies the rub. Under the conventional understanding of free speech doctrine, if laws that favor secular speakers, expressive programs and activities and disfavor religious speakers, expressive programs and activities are viewpoint discriminatory, then laws that favor religious speakers, expressive programs and activities and disfavor secular speakers, expressive programs and activities must also be viewpoint discriminatory. If favoring “a” over “b” is discriminatory, then favoring “b” over “a” has to be discriminatory as well. And thus both instances of viewpoint discrimination should receive the same rigorous standard of review.

It is not difficult to see how this mandate of viewpoint neutrality complicates the recognition of a ministerial exception. Schools are expressive institutions. They communicate information and values to students. Teachers are speakers whose role it is to express that information and those values in the classroom and through extra-curricular activities. Civil rights laws limit and restrict the employment decisions of school administrators, and in doing so they impose costs on these expressive institutions that interfere (albeit often for powerful reasons) with the ability of these institutions to pursue their expressive missions. Indeed, that is the reason why religious schools challenge the application of civil rights laws to their employment decisions.

But if the application of civil rights laws to employment decisions burdens religious school missions, it does the same for private secular schools as well. Both religious and secular schools are equally expressive in their aspirations and their functions. Yet the recognition of a ministerial exception relieves religious schools from burdensome regulations that their secular counterparts must obey. That is viewpoint discrimination, pure and simple. If you doubt that, reverse the immunity. Imagine secular schools were granted an exemption that relieved them of the burden of complying with burdensome regulations but religious schools were given no such exemption. Does anyone doubt that this favoring of secular schools would constitute viewpoint discrimination, requiring strict scrutiny review?

One might argue that our analysis proves too much. If we are correct, then the ministerial exception should not be allowed to exist, even with regard to fully ordained clergy. Clergy as well as teachers are speakers who are responsible for communicating and exemplifying their faith community’s values. Why should religious congregations be allowed to hire these expressive leaders free from civil rights regulations while secular organizations receive no such exemptions. Are we really arguing that houses of worship should not be free to hire and fire clergy who lack the characteristics the church requires of its ministers? That is a fair question to raise. We think, however, that there is at least an argument that clergy are unique and distinctive in their title and role. There may be no meaningful secular counterparts to pastors, priests, rabbis, and imams. Thus, providing special constitutional protection to employment decisions relating to clergy may not be considered viewpoint discriminatory because there are no comparable secular titles and roles to which the treatment of clergy can be reasonably compared. Discrimination means treating similarly situated individuals or situations differently, but if there are no similarly situated individuals or situations, the presence of discrimination is much less clear.

But this argument about the distinctive titles and roles of clergy cannot be stretched to apply to teachers at religious and secular schools. Teachers at religious schools who are not clergy are indistinguishable from teachers at private secular schools. The content of their speech may differ. They may communicate different values. In both cases, however, teachers are speakers communicating the information and values they schools that hire them want to communicate to students. Freeing religious schools from regulations governing the employment of teachers that secular schools must obey is viewpoint discrimination. Applying the ministerial exception to non-clergy teachers would read the religion clauses of the First Amendment to require government conduct that the free speech clause seems to prohibit.

Once the Court acknowledges the presence of the elephant in the room, how should it deal with this predicament? One approach would be to deny that religious and secular belief systems are opposing viewpoints, which would involve backtracking from much of what the Court has said in the school cases mentioned above.

But we think this might be a tough retreat for the Court to make. While it is certainly true that not all religious beliefs conflict with all secular values, in today’s world the debate between religious and secular world views is certainly salient—even if it is overstated. Moreover, the problem we identify extends well beyond the school setting, which complicates any potential solution. Even outside of religious schools, a great deal of religious practice and activities are expressive in nature; sermons. proselytizing, prayer, and religious education are obvious examples. Religious congregations are at least in part expressive assemblies. Religion is a major voice in the marketplace of ideas.

Most exemptions and accommodations of religion in our society are a result of political deliberation, not constitutional adjudication. Many of these discretionary legislative and administrative exemptions and accommodations have the effect of favoring religious speakers, expressive institutions, and expressive activities over their secular counterparts. A rigorous application of the prohibition against viewpoint discrimination would require that many of these accommodations must be justified under strict scrutiny review.

To consider just one example, is the Religious Land Use and Institutionalized Persons Act, which requires state and local governments to accommodate religious assemblies using private land for religious activities (many of which are clearly expressive in nature), viewpoint discriminatory in that it doesn’t require state and local government to accommodate other equally expressive yet non-religious uses of land by secular organizations??

We cannot even attempt to resolve these questions in an essay of this length. The reality is that religion and speech overlap. But the constitutional rules relating to religion and speech are in conflict. The religion clauses accept, and in some cases require, that religious institutions and practices may be treated differently than secular institutions and practices. The free speech clause requires that religious and secular speakers, messages, and expressive institutions must be treated the same way—without either being favored or disfavored. The Court needs to develop criteria and doctrine to determine when and whether the religion clauses or the free speech clause should control challenges to government regulations relating to religion.

The Court has not begun to engage in this difficult task. The ministerial exceptions cases before the Court this term might be a good place for it to start.