Originalism and Last Week’s Opinion in Hosanna-Tabor
Michael Ramsey
Last week the Supreme Court decided, in the Hosanna-Tabor case, that as a constitutional matter a church’s decisions regarding hiring and firing of ministers can't give rise to liability under federal antidiscrimination-in-employment laws (specifically, the Americans with Disabilities Act [ADA]). Originalist-oriented writers such as Ed Whelan and Richard Garnett have applauded the decision. But at Dorf on Law, Mike Dorf raises this question: how is the decision consistent with Justice Scalia’s 1990 opinion in Employment Division v. Smith (the peyote case)? Professor Dorf isn’t writing from an originalist perspective, but finding an originalist answer may involve some work.
Dorf argues that the recent decision
is in considerable tension with the Court's ruling in Employment Division v. Smith, where the Court established the principle that when a law has the effect of forbidding some religious practice, there is no Free Exercise problem unless the law specifically singles out that religious practice.
One might think that the ADA is a general law that targets discrimination against the disabled (and retaliation against persons who bring claims under the ADA) without regard to the religious or non-religious character of the discriminator (or retaliator), and that therefore there is no constitutional problem with its application to a church school. …
So how did the Court in Hosanna-Tabor reconcile its grounding of the ministerial exception in the Constitution with Smith? Here is the entirety of the Court's analysis on the point:
The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), precludes recognition of a ministerial exception. In Smith, two members of the Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregon law. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id., at 879 (internal quotation marks omitted). It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.
Professor Dorf finds this insufficient, and (as an originalist matter) I agree. It’s true that there's a possible distinction between the cases. But is there any originalist basis for the distinction?
Of course, one way to reconcile the two cases is to say Smith was wrong and should be limited to its facts (or even overruled; see this essay by Michael Paulsen). But Smith purported to be an originalist opinion so that approach might give some pause (and in any event it’s no help to Justice Scalia). A originalist defense of both cases would need to show that in the founding era applying neutral laws of general application to internal church matters (as opposed simply to individuals' religious practices, as in Smith) were understood to raise free-exercise concerns. That evidence may exist, but the Court’s opinion doesn’t provide it.
Professor Dorf goes on to ask:
Suppose that a sect of the Native American Church selected its ministers by a ceremony in which novices, in order to be ordained, must ingest peyote. Could participants in that ceremony be imprisoned, and thus rendered unable to perform their duties as ministers, pursuant to the rule of Smith, or would they be protected under Hosanna-Tabor on the ground that the use of peyote to select ministers is part of "an internal church decision that affects the faith and mission of the church itself." Here, the "physical act" of peyote use is also integral to the church decision.
It’s worth thinking about how originalism would handle that one.
