Thursday, January 12, 2012

The Hosanna Tabor Decision

The decision yesterday by the Supreme Court in a major First Amendment case relating to hiring was stunning in several ways.   First, unlike several other SCOTUS decisions this one was unanimous; and it included two concurring opinions - from Justice Thomas and a joint one from Justices Alito and Kagan.

The main decision was written by the Chief Justice and is superbly clear.  Evidently, Constitutional Law is not a required course for EEOC lawyers.   In trying to persecute this small church related school the EEOC had made some outrageous claims.  The facts of the case are simple.   A teacher for a small Lutheran school in Michigan took a leave for a health issue (Narcolepsy).  The school hires two types of teachers - lay teacher and "called" teachers.  The latter were assumed, in addition to their teaching responsibilities to have special training and were required to perform religious functions in the school.  The school expressed a preference for "called" teachers.  While the "called" teachers performed many of the same functions that the lay teachers did - they were clearly different in terms of training and function.   The complainant came back to the school and reported for work, but school officials said they believed she was not ready.  She demanded that the school officials sign a written document that she had reported for work.  One of the tenets of this branch of Lutheranism argued that individuals should solve their disputes without resorting to the courts.  Clearly the complainant did not want to follow that tenet.   After the complainant said she would file an EEOC action the school board fired her.

The opinion makes it clear that both sides of the First Amendment support the school's point of view.  Robert's opinion argues that on the side of the Establishment Clause that the American system is clearly different from the British one.  He argues that at the founding of the Republic that a clear implication was that we rejected the Act of Supremacy - which was adopted when Henry VIII wanted to break from Rome and set himself up as the head of the church in England.  The American story is quite different.  Government is proscribed from involving itself in governance issues.

The opinion repeatedly argues that the Free Exercise Clause gives wide latitude to religious organizations in who they shall choose.  The EEOC had made the specious argument that Hosanna Tabor and the local chapter of the Junior Chamber of Commerce are functionally equivalent and the opinion makes quick work of that bit of twaddle.

Perhaps the most interesting part of the decision is the concurring opinion offered by Justices Alito and Kagan.    They make a strong case that in order to exercise their religious rights religious organizations and associations need to be able to make their own decisions about what constitutes a minister (which the concurrence even argues is not a proper title in many religious organizations).

Some observers have minimized the importance of this decision.  In reality the unanimity and the clarity of the arguments against the expansive views of the EEOC will make this decision an often cited case.

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