Monday, January 23, 2012
A little over a week ago Professor Vaughn James blogged in this space about the Supreme Court's recent Hosanna-Tabor Evangelical Lutheran Church and School decision unanimously concluding that religious organizations benefit from a "ministerial exception" to employment discrimination laws. I want to focus on one possible ramification of this decision that does not appear to have been noted publicly yet - does the reasoning supporting this exception also support a "pulpit exception" to the tax law prohibition on political campaign intervention? (Shameless self promotion - I explored this possibility in the last part of my 2009 Boston University Law Review article on Politics at the Pulpit.)
The strongest argument for not having such a "pulpit exception" is that the prohibition is a valid and neutral law of general applicability and so does not violate the Free Exercise Clause under the reasoning of Employment Div v. Smith, 494 U.S. 872 (1990). But in Hosanna-Tabor the EEOC and the plaintiff were unsuccessful in making this argument with respect to the Americans with Disabilities Act. Here is the Court's reasoning for rejecting that argument:
It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use [in Smith], is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.
If Smith does not bar the ministerial exception because that exception relates to "an internal church decision that affects the faith and mission of the church itself," it certainly seems reasonable to conclude that Smith also does not bar a pulpit exception, at least if a pulpit-delivered endorsement of a candidate is religiously motivated and communicated to the congregation as part of the minister's role in teaching them how to faithfully live out their beliefs. That this would be the case for many if not most ministers who chose to deliver such a message from the pulpit seems likely, for reasons detailed in my article. The Supreme Court in Hosanna-Tabor appears to have provided solid grounds for arguing that the Free Exercise Clause requires such a pulpit exception.