Score Another Victory for Religious Liberty at the Supreme Court | Opinion

Even in 2020, some governments—including European ones, like Denmark's—participate in selecting religious leaders and judging theological disputes. America has fortunately chosen a different path. In 1806, a Catholic bishop asked President Thomas Jefferson for appointment advice in leading the Church in the recently purchased Louisiana Territory. James Madison, then secretary of state, responded that the "scrupulous policy of the Constitution in guarding against a political interference with religious affairs," prohibited the president from selecting religious leaders. That is the principle the Supreme Court recently upheld by a vote of seven to two in Our Lady of Guadalupe School v. Morrissey-Berru.

In Morrissey-Berru, the Court reaffirmed that the First Amendment ensures religious institutions may decide "free from state interference, matters of church government as well as... doctrine." As the majority opinion noted, this concerned the Founders because, prior to the American Revolution, Britain used its authority to dictate who could serve as religious functionaries in the colonies. For example, in 1771, the British ordered New York to only accept schoolmasters licensed by the bishop of London.

But if government can select religious leaders or teachers who pass the faith on to the next generation, it can ultimately dictate what adherents believe and how they exercise their faith. The Supreme Court determined that, in order to avoid that sort of abuse, the First Amendment prohibited the government from interfering in religious organizations' decisions regarding their hiring and firing of religious officials. In Morrissey-Berru, this meant that teachers who engaged in religious duties could not invoke employment law to protest their firing.

The Supreme Court previously established that employment law did not cover some religious teachers in its unanimous Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission decision. The question presented in Morrissey-Berru was how to determine whether a religious teacher, as opposed to a minister, is included in this so-called First Amendment "ministerial exception."

In Hosanna-Tabor, the teacher was a Lutheran minister, and the plaintiffs in Morrissey-Berru argued that the Supreme Court should limit the exception to religious officials with attributes nearly identical to Lutheran ministers. The Supreme Court disagreed. The Court recognized that different faiths have diverse types of religious officials, and that the plaintiffs' test would exclude religions that differ from Lutheranism. Instead, the Court adopted a test that examines various factors in determining who qualifies as a "minister."

Critics of the opinion may argue that the Court should not have adopted a broad definition of "minister" because doing so hurts more teachers by excluding them from employment law protections. It is true that the doctrine will prevent some teachers with sympathetic cases from suing. For example, one of the teachers in Morrissey-Berru claimed that the school fired her because she needed time off for cancer treatment. The school denied this and claimed that it fired her because she refused to "observe the planned curriculum."

Even if acknowledging plaintiffs' asserted harms, the decision's critics miss the mark. The Court did not discount the awfulness of firing a teacher because she became ill. But such harms are a consequence of the Constitution's protections against religious coercion by the government. Since the Founding, Americans have placed a premium on maintaining a country where many religions can flourish free from government interference. This has borne fruit; America has historically provided a welcoming home to numerous minority faiths. But achieving that goal necessarily requires trade-offs. If the Constitution protects religious minorities by preventing the government from interfering in their internal governance or doctrine, people who would benefit from such intrusions will be deprived of that assistance. This is true even in cases where the intended beneficiary is deserving and sympathetic.

U.S. Supreme Court building
U.S. Supreme Court building BRENDAN SMIALOWSKI/AFP via Getty Images

Critics may concede that, while avoiding such meddling was important in the 1700s and 1800s, it is no longer necessary today. They would claim that the government no longer seeks to control religious doctrine, and therefore the Court can allow some level of government intrusion into internal religious affairs.

The critics are incorrect for two main reasons. First, that is simply not how law works. Even if the concerns that motivated the First Amendment passed, the Court cannot unilaterally weaken the First Amendment's protections. Only Congress and the American people, acting through the proper procedures, can amend the Constitution. Second, the critics are also wrong about the facts; government entities in the United States still threaten to impose their religious orthodoxy on dissenting groups. The protections of the First Amendment remain as necessary now as they ever were in the past.

Next term, the Supreme Court will decide Fulton v. City of Philadelphia. In that case, the city of Philadelphia has determined that Catholic Social Services ("CSS") cannot participate in the foster care process unless it is willing to sign written endorsements on behalf of same-sex couples. The city has taken this position even though no same-sex couple has ever approached CSS for an endorsement. CSS views this as an attempt "to coerce it into changing its religious practices," and it has good reason to think this is true.

Not only is the city responding to a problem that has never actually occurred, but city officials have also made statements revealing their intent. The mayor of Philadelphia has described the archbishop—with whom CSS is associated—as "not Christian." A city commissioner told CSS that, "it would be great if CSS could follow the teachings of Pope Francis," rather than the archbishop, and that "times have changed," "attitudes have changed," and it is "not 100 years ago." It sounds very much like Philadelphia would still like to control CSS' doctrine.

In another example, in 2014, the city of Houston issued a subpoena demanding religious leaders' sermons relating to "homosexuality" or "gender identity." The city eventually relented, and the subpoenas' purpose is disputed, but their breadth and intrusiveness remain chilling.

Over the last century, the government has expanded to the point where it now touches nearly every area in American life. As the reach of the state has grown, so has its capacity to impose its views on religious dissenters. Morrissey-Berru holds that, notwithstanding the government's growth, the internal functioning of religious organizations remains categorically off-limits to government authority.

Howard Slugh is an attorney practicing in Washington, D.C. and the co-founder of the Jewish Coalition for Religious Liberty.

The views expressed in this article are the writer's own.

Score Another Victory for Religious Liberty at the Supreme Court | Opinion | Opinion