Law professor Michael Stokes Paulsen has an excellent Public Discourse essay—“Hosanna in the Highest!”—on the Supreme Court’s unanimous ruling in Hosanna-Tabor.
Hosanna in the Highest!
January 13, 2012
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.
Every now and then, the Supreme Court surprises its critics by getting something absolutely, completely right: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, decided on Wednesday, is just such a case. The Court held that the Religion Clauses of the First Amendment—both the Free Exercise Clause and the Establishment Clause—prohibit any government interference with the employment relationship between a religious body and those it in good faith (so to speak) considers its “ministers”: those leaders, teachers, and others who, in the words of the Court, “personify” the beliefs of the religious community. The decision embraced, in broad language, the constitutional right of religious groups to autonomy in matters of their own “internal governance” and to the freedom to exercise “control over the selection of those who will personify its beliefs.” It specifically affirmed “a religious group’s right to shape its own faith and mission through its appointments.” And it grounded its holding in the proposition that “the text of the First Amendment itself . . . gives special solicitude to the rights of religious organizations.”
The decision was, strikingly, unanimous: no one disagreed with Chief Justice Roberts’s opinion for the Court. The only separate opinions were concurring ones, suggesting further extensions or specific applications of the Court’s reasoning. On a Court that has often been bitterly divided, this expression of unanimity is truly remarkable.
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.
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