Hosanna-Tabor and First Principles
The decision today by the Supreme Court in the Hosanna-Tabor v EEOC case was rightly heralded as a victory for liberty and especially for freedom of religion in this nation. The court leaned heavily on precedent, but more importantly relied on the 1st Amendment in coming to its opinion. The court was right when it first opined in Watson v Jones:
whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them,
and the court was right in reiterating this truth in Hosanna-Tabor. The Court further stated that:
the First Amendment “permit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters…When ecclesiastical tribunals decide such disputes, we further explained, “the Constitution requires that civil courts accept their decisions as binding upon them."
Concerning the case before the Court, Chief Justice Roberts wrote:
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.
In concluding the opinion the court wrote:
The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission…the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.
I can find nothing wrong in the way the court decided the case or in the reasoning used to arrive at its opinion. The court rightly construed the 1st Amendment to mean exactly what it says. Today was, indeed, a victory for liberty and religious freedom.
All that being said, I am intrigued by the notion that religious association holds a special place both in our culture and in our law. Our freedom to (secular) association was affirmed in Boy Scouts of America v Dale. The ruling in Hosanna-Tabor strengthened the case for free association, but it also elevated religious organizations above other forms of association. The question this forces me to ask is why in our largely secular society do we afford so much special protection to religious groups? I am all for such behavior; I simply do not fully understand why the practice came into being and how it survives (and does so robustly after today’s ruling) in a society so determined to scrub clean the public square from all semblances of organized religion.
I received a partial answer to my questions in the concurring opinion authored by Justice Alito and joined by Justice Kagan. They wrote:
Throughout our Nation’s history, religious bodies have been the preeminent example of private associations that have “act[ed] as critical buffers between the individual and the power of the State.”…[when civil law threatens] it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws.
It seems to me the court is very close to making a first principles argument against the growing authority of leviathan over the individual. Justices Alito and Kagan stand on the cusp of declaring outright the preeminence of the individual over the state. I find this part of today’s ruling the most inspiring. Just when I think the nation has wandered too far from its base camp and will slowly die of exposure in the wilderness I see a flicker of firelight through the dense foliage. Liberty’s fire still burns. Today’s ruling brings us a step closer to its light and warmth.
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Dec '11
Re: Hosanna-Tabor and First Principles
This decision was a foregone conclusion. The only surprise is that it was 9-0.
Dec '10
Re: Hosanna-Tabor and First Principles
I think the strength of the opinion was more surprising than its unanimity. Getting the liberals to sign on to such a bold statement of freedom was refreshing, like jumping in a glacier fed stream is refreshing.
Oct '10
Re: Hosanna-Tabor and First Principles
"why in our largely secular society do we afford so much special protection to religious groups?"
The protection is in direct proportion to state interference. If leviathan wasn't second guessing everyone's decisions about everything, the 'protection' would look pretty minor. It's only the micro-management of society by the overmighty state that makes being able to do what you want (or your conscience tells you) seem 'special'.
(Which is basically what you say, too :-))
Aug '11
Re: Hosanna-Tabor and First Principles
Alito and Kagan are spot on. From the very beginning religious organizations have been the primary examples of private voluntary associations that have shielded individual liberty from state coercion. See Roger Williams and John Locke's (Letter on Toleration).
Dec '10
Re: Hosanna-Tabor and First Principles
It still seems curious that the founders preemptively settled the matter when leviathan was but a tiny squid in its crib.
I agree completely about the proportional effect of state interference. I often wonder if there is any activity I can undertake that is not regulated and taxed. The answer (even more strongly today) is that I can worship God (or not) in accordance with the decrees of my faith and my church, and the government can have no say in it. It is the singular bastion of independence in this nation.
Oct '10
Re: Hosanna-Tabor and First Principles
Well, one of the few things the state had historically done was interfere in matters of religion (and some of the states wanted it to stay that way - no federal usurpation of their existing established churches). I wonder what the founders would have included in the Bill of Rights if they'd had the example of Pilgrims fleeing the ADA...
Dec '10
Re: Hosanna-Tabor and First Principles
genferei
I wonder what the founders would have included in the Bill of Rights if they'd had the example of Pilgrims fleeing the ADA... · Jan 12 at 8:04am
Now that is an interesting thought, and it better captures my original quandary. Is our freedom of religion such a bedrock principle because it is inherently so, or is it that way simply because it was a big issue when the country was founded? The decision affirmed it as important, but it did so only in reference to the Constitution, not in reference to any higher principles. Yes, the nation needs to know what is in the Constitution, but, and I think this even more important, the nation needs to know why the things in it are there.
Aug '11
Re: Hosanna-Tabor and First Principles
Since Plato government intervention is generally defended on utilitarian grounds. They tell us it will protect us (even from our own bad judgement) and make us happier.
Religious freedom was so important to the Dissenting Christians in the 17th century, in part because they were not utilitarians. For them, the greatest good is not happiness -- it is salvation. Suppressing a person's religion was a rape or ravishment of the soul.
As a matter of historical fact, religious difference was and still is a source of civil war. But Roger Williams claimed that civil war was caused not by religious disunity, but by the suppression of religious disunity. Still, true today.