Is the Court Changing Its Stand on Religious Freedom?

On June 28, 2010, the Supreme Court of the United States narrowly ruled in Christian Legal Society v. Martinez that a university's "all-comers" nondiscrimination policy trumped the right of a Christian student organization to select its leaders according to the group's religious beliefs. According to the Supreme Court, a Christian student group confronted with such a policy could not exclude a Muslim or atheist from leadership and had to give them the same chance to lead as a Christian. It was "surely reasonable," declared the Court that "the . . . educational experience is best promoted when all participants in the forum must provide equal access to all students."

But last week- roughly 18 months later - the Supreme Court unanimously ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the Free Exercise and Establishment Clauses of the United States Constitution contain a "ministerial exception" that precludes the application of nondiscrimination statutes (such as the ADA) to claims concerning "the employment relationship between a religious institution and its ministers." In other words, a religious employer's right to select its leaders trumped the state's nondiscrimination statutes. In its ruling, the Court waxed eloquent about the special need for religious institutions to choose their ministers according to the dictates of their faith:

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

So what happened between June, 2010, and January, 2012? Did the Hosanna-Tabor court overrule Martinez? Did it change its view regarding the importance of religious leadership for religious organizations? The short answer is "no" and, well, "time will tell."...

Continue reading this at MindingtheCampus.com.