In their concurring opinions, Justices Thomas, Alito, and Kagan made it even clearer that the Court is not likely to read the ministerial exception narrowly, or to further restrict the rights of religious groups to self-select their ministers, their servants, and those who they believe are advancing their religious mission. Justices Alito and Kagan, for instance, opined that “The Constitution leaves it to the collective conscience of each religious group to determine for itself who is qualified to serve as a teacher or messenger of its faith.”21 Similarly, Justice Thomas wrote separately to emphasize the point that “[a] religious organization’s right to choose its ministers would be hollow, however, if secular courts could second-guess the organization’s sincere determination that a given employee is a ‘minister’ under the organization’s theological tenets.”22 Indeed, Justice Thomas continued, “[t]he question whether an employee is a minister is itself religious in nature, and the answer will vary widely.”23 With resounding support for the protected rights of religious organizations to self-select their ministers, their messengers, and the means by which they pursue their mission and “inculcate their values” free from government interference, the Administration’s myopic exemption for “religious institutions” – one that fails to account for religious charities, prison ministries and schools – will be rejected by the courts in light of Hosanna-Tabor.
The Administration’s latest health care mandate is an affront to the free exercise of religion and moral duty so long revered and protected in this country. In fact, in light of the Supreme Court’s decision in Hosanna-Tabor, one can only wonder at the thinking and motives behind the new rule. Clearly, little consideration was given to the legality of the mandate, suggesting that the motives were entirely political. But the Administration must have anticipated the vocal objections from the religious communities and simply decided that it didn’t much care whether those communities would cry foul; it was time for them to get in line with the health care program. The message sent by this new directive is loud and unmistakable: If you’re going to be an employer, an insurance provider, or participate in our health care system, you will play by the government’s rules and you will provide free contraception. Religious and conscientious objections will be disregarded and dismissed; fines will be assessed.
But the softer, subtler, and more ominous message in the Administration’s most recent sermon on health care is this: the religious will confine themselves to serving their own congregations, and “inculcating values” within the confines of their own communities. They will no longer educate the children, preach the Gospel to the poor, heal the brokenhearted, speak deliverance to the captives, give sight to the blind, or liberty to them that are bruised – because that’s what Government is anointed to do. Isn’t that what Jesus said?
But there is good news. Ultimately this new regulation will not stand. This mandate is far removed from the mainstream of First Amendment rulings, and badly misreads the Constitution and the important role that religious liberty plays in this country. It overlooks our founding history and relies on an erroneous view that caring acts by Americans are primarily secular acts, instead of the sacred acts of compassion and ministry that they often truly are. If the Congress doesn’t quickly overturn this regulation, the courts will.
For Part 1 of this two-part article, go here.
8 Recounted in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. ____ (slip op., at 7).
9 Flast v. Cohen, 392 U.S. 83, 103 (1968).
10 In his famous Memorial and Remonstrance Against Religious Assessments, Madison expounded that “It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”