The First Amendment and Religion After Hosanna-Tabor
Cordes, Mark W.
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The Supreme Court’s treatment of religion under the First Amendment has shifted significantly in the past quarter century. Though the Court had focused on separation for the Establishment Clause and accommodation for the Free Exercise Clause for several years, the Court has begun to increasingly shift its focus to an emphasis on neutrality. Unlike prior years when religion was viewed as either particularly threatening or needy, the Court has begun to treat religion the same as other societal influences and values—no better and no worse. Although there have been exceptions, such as with regard to religion in public schools, a neutrality paradigm began to emerge as dominant when addressing religion issues. The Supreme Court’s decision last term in Hosanna-Tabor Evangelical Church and School v. EEOC marked an important departure from the neutrality paradigm. In a unanimous decision, the Court held that the Religion Clauses of the First Amendment create a ministerial exception to antidiscrimination laws, meaning that, at least for certain ministerial positions, religious organizations must be accommodated and exempted from an otherwise general and neutral law. Though not overturning or replacing the neutrality paradigm that has emerged in recent decades to resolve many religion-related issues, Hosanna-Tabor does make a significant dent in the paradigm. The Court recognized two basic principles, the implications of which stretch far beyond the immediate facts of the case. First, the Court made clear that religion has a unique status under the Constitution, being granted protection beyond what other values and ideas might have under free speech. Second the Court in Hosanna-Tabor essentially recognized that religious institutions have a right of autonomy that frees them from certain types of government interference. Though the majority opinion did not characterize it as such, the rationales given and precedents cited all point in the direction of a special right of autonomy that religious institutions enjoy pursuant to their unique status under the Constitution. This autonomy interest does not insulate religious institutions from government regulations; far from it. But it does protect religious organizations from government interference with their core identity and function, such as doctrine, faith, mission, and governance. This Article will discuss the potential impact of Hosanna-Tabor, arguing that the Court in effect recognized an autonomy interest for religious organizations that protects them from the application of anti-discrimination laws as they relate to matters of leadership, governance, and mission. Part I discusses the background of the decision, examining the emergence of the neutrality paradigm for resolving issues relating to religious rights. Part II discusses the Hosanna-Tabor decision. Part III briefly discusses the impact of Hosanna-Tabor with regard to two areas: (1) the limits it puts on Smith; and (2) its expansion of religious associational rights. Finally, Part IV briefly examines the scope of the ministerial exception, its application to issues of governance and membership, and how the autonomy interest intersects with the neutrality paradigm.