Here at FIRE, we review a wide variety of legal material that never makes it onto The Torch. Court decisions come down all the time that are relevant but not directly related to our core mission (decisions about civil procedure or election law, for example). One such case that we have followed closely is the Supreme Court of the United States’ recent unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. For a primer on this case, there is a useful battery of case materials and analysis over at SCOTUSBlog.
In Hosanna-Tabor, the Supreme Court held that the Establishment and Free Exercise Clauses of the First Amendment precluded courts from hearing employment discrimination suits brought by "ministers" against religious employers under the "ministerial exception."
Some are citing Hosanna-Tabor as relevant to the context of religious student organizations who seek First Amendment protection from onerous "anti-discrimination" policies in managing their groups. In fact, in the ongoing freedom of association controversy at Vanderbilt University, students in a town hall meeting explicitly brought up Hosanna-Tabor at least twice. Vanderbilt administrators responded to both questions dismissively, indicating that in discussions with outside counsel, Vanderbilt found Hosanna-Tabor to be narrowly applicable to ministerial employees of religious organizations. Since the argument that Hosanna-Tabor is applicable to religious student organizations is floating around in the public arena, however, it is worth addressing here.
In one sense, the lawyers discussing the matter with Vanderbilt are correct. The ruling in Hosanna-Tabor has limited applicability to the case of (1) ministers, (2) of religious organizations, (3) in the employment discrimination context. Student leaders are not ministers: typically, ministers to religious student groups are older and affiliated with a religious body external to the university structure (a priest, for example, in the local parish). Furthermore, the relevant "employer" who would be the target of an employment suit is the university itself, which is usually not a religious organization. Finally, serving as a student leader or as a member of a group is not "employment" under the relevant statutes. Thus, a religious university dismissing a faculty member who is also a minister might be protected from suit under Hosanna-Tabor, but the case is not on-point for religious student groups seeking to to regulate their own groups.
In this respect, it is a stretch to afford the Free Exercise protections outlined in Hosanna-Tabor to student organizations. Indeed, there is reason to worry if the case were applicable. Should a student be liable as an employer for failing to vote for someone (is this an adverse employment action)? Should courts be the ones to decide when a student group is genuinely religious, or when a student leader of a religious group is serving in a ministerial or purely administrative capacity? Do we really want all of this to end up in court? Probably not.
But in another sense, the students at Vanderbilt have the right idea, too: Hosanna-Tabor stands for something more than its narrow holding. As the majority noted, "the First Amendment itself … gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers." It is not hard to see, as some students at Vanderbilt do, the analogy to leaders of religious student organizations, who perform many of the same functions as ministers, and who might even be a minister in their religious hierarchy outside the university. As the Court put it, "the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission" is important. This is certainly true when it comes to the ability of student groups to associate around shared beliefs and choose the group’s composition accordingly.
Justice Thomas explained in his concurrence that "[t]he question whether an employee is a minister is itself religious in nature, and the answer will vary widely." This is exactly correct. Part of FIRE’s concern in the Vanderbilt case is that, in seeking to place limits on student freedom of association, the Vanderbilt administration is tacitly espousing and enforcing its own religion, imposing orthodoxy at the expense of religious liberty. Rather than ignoring Hosanna-Tabor, school administrators would do well to read the decision and carefully consider the rights and the beliefs of religious students on campus.