The New York Times’ Stanley Fish also takes up the Hosanna-Tabor case, argued last week in the Supreme Court, and disappoints in doing so.
It’s not so much that he gets the answer wrong – I’m not sure he does, because I’m not sure what his answer is – as that he falls for sloppy formulation of the question and in so doing misinforms and muddies the water.
First, his title: “Is Religion Above the Law?”
News Flash: The Free Exercise of Religion clause is the law.
Well, it’s only a headline, designed to be catchy. But then there’s this:
If the ministerial exemption is to have any bite, there must be a way of distinguishing employees central to a religious association’s core activities from employees who play only a supporting role (the example always given is janitors). But if the line marking the distinction is drawn by the state, the state is setting itself up as the arbiter of ecclesiastical organization and thus falling afoul of the establishment clause. And if the line is drawn by the religious association, the religious association is being granted the power to deprive as many of its employees as it likes of the constitutional protections supposedly afforded to every citizen. It is these equally unpalatable alternatives — this Scylla and Charybdis — that the justices find themselves between in oral argument. What a mess!
(Italics added) Here Fish goes far off track. This is a false, and tacitly statist, dilemma. Repeat after me:
Only the government can violate constitutional protections.
Only the government can violate constitutional protections.
Only the government can violate constitutional protections.
Only the government can violate constitutional protections.
…
A Church can never, ever, categorically deprive anyone of constitutional protections.
As my ConLaw professor, the late Patrick Baude, put it:
If Billy Graham, the Pope, and the Chief Rabbi of Jerusalem got together and plotted to assassinate the President because of some shared religious principle, and then carried it out, they would not thereby violate any provision of the Constitution.
And for what it’s worth, a good litigator can make a monkey out of government witnesses on the supposedly crucial question of “distinguishing employees central to a religious association’s core activities from employees who play only a supporting role.” I believe it was an attorney with the improbable nickname “Skeeter” (Ellis) who did exactly that when some meddlesome Human Rights Commission tried to meddle in the affairs of Seattle Pacific University, an Evangelical Protestant institution that offended some employee or former employee.
Which jobs in a generally religious institution are ‘religious,’ and which are ‘secular’? Both Seattle Pacific University (SPU) and the Mormon Church faced charges of discrimination by not hiring unbelievers for “secular” jobs. Amos v. Presiding Bishops (1987) ___ U.S. ___, 107 S.Ct. 28662 laid the issue to rest (9-0) by holding that the attempt to distinguish between religious and secular itself violated constitutional principles. What if it had been decided differently? Justice Brennan wrote in a concurrence joined by Marshall that the distinction is not self-evident, and would require an entangling case-by-case analysis. But the Human Rights Commission of Washington had confidently said, contra SPU, that the distinction was simple to apply given a rule of reason or common understanding test. When it came deposition time, however, the Commission Officials, presumably deposed separately, gave widely different classifications of job after job — even Church Organist (“depending how much passion you want to the music”). The ultimate absurdity could have come if SPU had been required to hire unbelievers for “secular” positions until there were so many that the university was no longer “religious” (there was a guideline that more than a certain percentage of nonbeliever jobs meant the employer was not religious), and then had to hire without reference to religion in all positions!
[Personal Notes from Hill & Li, “Discrimination and Religious Institutions,” This World (circa September 1988; I believe the magazine is defunct or may have become First Things)]
Forecast: Hosana-Tabor wins and Amos v. Presiding Bishop gets cited in the SCOTUS opinion. And we will be freer because of it; if you don’t like a Church, disaffiliate. If you don’t like the government, tough luck.
Tipsy Teetotaler ن 