This week, in what Adam Liptak at the New York Times suggested was “most significant religious liberty decision in two decades, the Supreme Court ruled in Hosanna-Tabor Evangelical Lutheran Church v. EEOC that:

The interest of society in the enforcement of employ­ment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Within hours of the Court’s ruling, secular groups were lamenting the Court’s decision, stating that  “blatant discrimination is a social evil we have worked hard to eradicate in the United States,” and the Court’s ruling “will make it harder to combat.”

Then the New York Times editorial board jumped in criticizing the Court’ decision for  abandoning the Court’s “longtime practice of balancing the interest in the free exercise of religion against important government interests, like protection against workplace bias or retaliation.” The Times thought that the proper approach to the religious free exercise issue was to balance whether the general law would inhibit a religious organization’s “freedom more broadly than justified,” so that a court “could exempt the church” from the law. Basically, the approach championed by the Times would allow courts to consider whether applying employment discrimination laws is more important than a religious institution’s ability to choose who it hires or fires.


What is even more surprising is that was the the exact argument the Government put forward at oral argument, to the amazement of several Justices.

For those of you who are not lawyers, court generally use balancing tests to limit absolutism. In free speech cases the court sometimes balance the need for free speech against the state’s important interests to limit speech in certain contexts. What normally happens in these balancing test is that court place their value judgments into the equation. To take Hosanna-Tabor as an example, courts had balanced the need to enforce employment discrimination law against a church’s right to decide whether to retain or fire a religious teacher at one of the church’s schools.

As a general matter, the outcome of a court’s balancing is often determined by ideological makeup of judicial panel that makes the value judgments.  And the results of balancing, in the long haul, is usually to tip toward limiting freedoms including speech and free exercise of religion.

That doesn’t seem right, at least in cases such as Hosanna-Tabor. If there is tension between the employment discrimination statutes and a church’s right to freely pick and choose its employees in religious positions than the Constitution has already decided which one trumps the other. Viewed from that lens, the Court’s sweeping decision in Hosanna-Tabor is hardly surprising. Nor should it be controversial.

Perhaps the best part of the Court’s decisions was the response of religious organizations immediately following the ruling. Several of them noted that although the Court had given a hands-off approach to hiring decision made by religious groups, they still have a “moral obligation” to not discriminate.

Don Byrd, a teacher at Belmont University, noted that:

“The freedom to make certain employment decisions without government interference leaves intact the moral obligation to act honorably, to treat employees honestly, and to make religious decisions based upon true religious beliefs,” Mr. Byrd wrote. “Support for a broad definition of the ministerial exception should not imply support for a broad license to discriminate with impunity.” 

If the churches, synagogues, and mosques around the country follow that moral obligation the Court may not find the need to revisit this difficult issue again.