WALTER OLSON, CATO INSTITUTE
The First Amendment’s free exercise clause guarantees churches the autonomy needed to pursue their religious mission. That requires solid protections of substance and not merely form, a 7–2 majority of the Supreme Court confirmed in today’s twin cases on church school employment and employment discrimination (Our Lady of Guadalupe School v. Morrissey‐Berru, combined with St. James School v. Biel). Writing for seven Justices, Justice Samuel Alito found that a church is entitled to decide for itself how to fill classroom jobs that instruct children in religious tenets and lead children in prayer. Justices Clarence Thomas and Neil Gorsuch would have gone further and required courts to defer to a religious organization’s sincere, good faith determination that a job exercises the functions captured by the imperfect term “ministerial.”
While not unanimous as had been the 2012 Hosanna‐Tabor case, which it helps clarify, today’s 7–2 result confirms that the Supreme Court takes seriously the protections of the Free Exercise clause, even when they come into conflict with the powerful force that is employment discrimination law. That should help quell fears (which I discussed recently) that the Court is stepping back from a robust commitment to religious liberty.
Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. His books include The Rule of Lawyers, on mass litigation, The Excuse Factory, on lawsuits in the workplace, and most recently Schools for Misrule, on the state of the law schools. His first book, The Litigation Explosion, was one of the most widely discussed general-audience books on law of its time. It led the Washington Post to dub him “intellectual guru of tort reform.” He blogs at Overlawyered.com.