Hosanna in the Highest!

In a recent decision, the Supreme Court has held that the First Amendment provides additional and independent rights to religious organizations, beyond those to which non-religious groups are entitled.
by Michael Stokes Paulsen
January 13, 2012

Excerpt:
The decision in Hosanna-Tabor is an occasion for celebration, for dancing in the streets (or, for some Baptists, simply praising the Lord). Essentially everything the Court said was right. And every right thing it said is important—a point brought home by considering the consequences if the Court had ruled the opposite way, as the Obama administration had urged and as many feared possible.

Consider for a moment, point by point, what makes Hosanna-Tabor so praiseworthy:

First, the Court specifically grounded the so-called “ministerial exception” to employment discrimination laws in an affirmative First Amendment constitutional right of religious organizations to select their own faith leaders and exemplars, free of government interference. The “ministerial exception” originated in a series of lower court decisions, beginning forty years ago, reading into federal anti-discrimination employment statutes an implied exception for a church’s hiring (and firing) of ministers. The exception had the feel of judge-made law, carving out of the law as written an unwritten escape hatch (of indeterminate breadth) for churches and synagogues. The lower courts then struggled with how to apply an unwritten statutory exception, creating all the problems, in principle and practice, common to legal rules seemingly made up by judges as they go along, in disregard of the text.

Hosanna-Tabor was the Supreme Court’s first case involving the “ministerial exception.” The justices might have chosen to embrace the exception on a more namby-pamby, “we-construe-the-statute-in-such-a-way-as-to-avoid-the-possibility-of-its-creating-constitutional-difficulties” approach—not exactly embracing a constitutional rule but adopting an awkward rule of interpreting statutes in such a way as to avoid possible constitutional problems. (The Court has done this a fair bit, including in the religious freedom context.) Chief Justice Roberts’s opinion would have none of that: the right embraced in Hosanna-Tabor is a First Amendment constitutional right.

This right is not a judge-made interpolation into a statute; it is not a rule of construction; it is not an avoidance of deciding a constitutional question. It is a right supplied “by the text of the Constitution itself.” Hosanna-Tabor is a constitutional holding that where the Constitution supplies one rule (here, that religious groups have the right to hire and fire, free from government interference, those who personify and represent their faith communities, as an aspect of the free exercise of religion) and a statute supplies a contrary rule (that government generally may regulate employment practices, for example, to forbid practices it considers discriminatory), the Constitution’s rule trumps the statute’s. This is straight, old-fashioned, Marbury v. Madison-style judicial review: the Constitution is law and prevails over inconsistent statutes, to whatever the extent of the inconsistency. There is nothing judge-made, narrow, ad hoc, or uncertain about this. Hosanna-Tabor is a rule of First Amendment constitutional law.

Second, the rule that Hosanna-Tabor embraces is a broad, principled rule of First Amendment constitutional law. the rest