Defending the Freedom of the Church

Although they have generated controversy in some progressive precincts, the U.S. Supreme Court’s decisions last week in Our Lady of Guadalupe School v. Morrissey-Berru and Little Sisters of the Poor v. Pennsylvania were quite straightforward.

Both cases were decided 7-2 on the same day, with the five conservative members of the Court joined by Justices Breyer and Kagan. In Our Lady of Guadalupe, Justice Alito’s opinion held that Catholic parochial schools were protected by the First Amendment’s “ministerial exception” from employment disputes involving teachers. Little Sisters of the Poor posed an issue of administrative law in this latest, post-Hobby Lobby round of litigation over the contraceptive mandate imposed under the Affordable Care Act. Justice Thomas’s opinion held that a federal agency acted lawfully when it issued regulations exempting categories of religious employers from the requirement that contraception be included in employer-provided health plans.

Both cases corrected extravagant circuit court decisions. In the ministerial exception case, the U.S. Court of Appeals for the Ninth Circuit concluded that because the Catholic school teachers did not have a clerical title or extensive theological training, they did not perform an important religious function, even though the teachers led students in prayer, taught religion as part of a grade school curriculum, and prepared students for the sacraments. In Little Sisters, the U.S. Court of Appeals for the Third Circuit held that administrative agencies cannot craft exemptions for religious objectors to the ACA’s requirements, even though the statute itself is silent about whether agencies may craft exemptions and another federal statute (the Religious Freedom Restoration Act) arguably requires that they do so.

Beneath the surface, though, Our Lady of Guadalupe and Little Sisters might have profound implications for religious freedom and the shape of American constitutional law in the years ahead.

Both cases vindicate a concept of church autonomy and institutional religious freedom—in some respects an American constitutional variation on the ancient idea of libertas ecclesiae or the “freedom of the church.” Almost forty years ago in the Columbia Law Review, First Amendment scholar Douglas Laycock argued that the First Amendment protected a right of church autonomy that was distinct from the standard conscientious objector claims of religious free exercise. In the years since, scholars such as Notre Dame’s Richard Garnett have argued for a principle of freedom of the church and the recognition of plural claims of jurisdiction and authority between church and state in American constitutional law.

The problem, though, was that the freedom of the church seemed ill-fitting in American law, notwithstanding a few cases involving disputes over church property or governance that seemed to point toward something like church autonomy. Maybe it made sense to invoke the freedom of the church in disputes over the jurisdiction of ecclesiastical courts or the benefit of clergy in medieval England, but surely (the story went) the Reformation and modern liberalism dispensed with all that. Combine that with the ambient individualism of constitutional rights discourse, and the idea of freedom of the church looked anachronistic or outright dangerous.

The Court’s decision in Our Lady of Guadalupe resolves this question and reaffirms a principle of church autonomy. As Justice Alito writes,

The independence of religious institutions in matters of “faith and doctrine” is closely linked to independence in what we have termed “matters of church government.” This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission.

The metes and bounds of church autonomy will continue to be worked out in other contexts, and it may end up quite narrow in its application. Still, Our Lady of Guadalupe confirms John Courtney Murray’s argument fifty years ago in We Hold These Truths that freedom of the church (refracted through the First Amendment) is part of the American constitutional order.

The recognition of a sphere of church autonomy in these cases continues a sort of judicial Peace of Westphalia settlement in our culture wars. Our Lady of Guadalupe and Little Sisters were the latest in a string of victories for religious freedom going back several years (including the Court’s decision a week earlier in Espinoza v. Montana that religious schools could not be excluded from the benefits of a government program). The Court has given legal sanction to aspects of the sexual revolution, on the one hand, while protecting religious objectors, on the other hand, through judicial scrutiny under the free speech and free exercise rights of the First Amendment—such as the 2018 decisions in Masterpiece Cakeshop and NIFLA v. Becerra (a challenge by crisis pregnancy centers to a California abortion disclosure requirement).

How enduring the peace will be is an open question, one pressed by skeptics of liberalism on the right and progressives wielding anti-discrimination law on the left. If the settlement falters, one gets a sense of the alternative in the overbearing statism of the dissents by Justices Ginsburg (in Little Sisters) and Sotomayor (in Our Lady). Next term the Court will hear a case about a Catholic adoption agency in Philadelphia that was excluded from a foster care program because it declined to place children with same-sex couples. The Court may again expand the scope of free exercise protection there.

This year marks 850 years since the martyrdom of St. Thomas Becket in Canterbury Cathedral amid a conflict with King Henry II over matters of ecclesiastical jurisdiction. As Harold Berman wrote in Law and Revolution (1983) about the legacy of the Becket conflict, “There is in most countries of the West not only a residual conflict of jurisdictions and of laws but also a constitutional limitation upon the power of the state to control spiritual values.” The Supreme Court has reaffirmed for now an American version of libertas ecclesiae, but the long history of disputes over the freedom of the church is one of contingent triumphs.

Michael P. Moreland is University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion, and Public Policy at Villanova University.

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