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U cinn charles schwartz4/27/2024 ![]() Morrissey-Berru is but a reaffirmation and clarification (some say a modest expansion) of who is a minister for purposes of the “ministerial exception,” a defense available in antidiscrimination litigation. ![]() The Court’s newest pronouncement on church autonomy in Our Lady of Guadalupe School v. The line is topped by the Court’s 2012 decision in Hosanna-Tabor, the importance of which cannot be overstated. The church autonomy line of precedent consists of only a dozen Supreme Court cases decided after plenary review. And this essay will turn very shortly to the juridical and historical rationales that underlie these distinctions. That the two Religion Clauses have given rise to three distinct lines of constitutional precedent is, of course, evidence of far deeper goings on. But now that commentators have tumbled to the fact that there are three lines of cases that cover the range of First Amendment religious-freedom claims, the threshold task of bringing to bear the correct line of precedent is becoming routine. This sidestepping of Smith by the Hosanna-Tabor Court initially puzzled a lot of legal scholars-and admittedly the Court did not at first explain the distinction well. That explains why the Smith case, which is in the Free Exercise Clause line of cases, was said by the Court to be inapplicable in Hosanna-Tabor, a church autonomy case. Stated differently, for some time now-but, one might say, hidden in plain sight-there have been not two, but three different sorts of religious-freedom cases decided under the Religion Clauses of the First Amendment. Supreme Court’s unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. Nicholas Cathedral -where the doctrine was first recognized as having First Amendment stature-and culminating with renewed vigor for religious institutional autonomy in the U.S. Church autonomy has its own exclusive line of precedent running from Watson v. The threshold task of sorting the Lukumi sheep from the Smith goats often presages whether the claim prevails on the merits. Stand-alone Free Exercise Clause cases are resolved by first sorting those complaints charging that the government has intentionally imposed a burden on a claimant’s religious beliefs or practices (they get Lukumi-like struct scrutiny) from complaints over laws that impose a religious burden only as a consequence of neutral and generally applicable legislation (they get a pass under Employment Division v. Routine Establishment Clause disputes such as those over religious preferences, government funding for religious entities, and government-sponsored religious symbols are now resolved by a series of rules (not standards) followed over the last two decades by the High Court. The doctrine of church autonomy is distinct from the two more familiar lines of cases decided under the Establishment Clause and Free Exercise Clause, respectively.
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