W. Cole Durham, Jr. is Emeritus Professor of Law at the J. Reuben Clark Law School of Brigham Young University, where he held the Susa Young Gates University Professorship and Founding Director of the Law School’s International Center for Law and Religion Studies. He was interviewed by Dmytro Vovk.
Before the interview, we asked you to think about a case of a line of cases you have modified your views about. What have you chosen?
My plan is to talk mainly about Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) and the follow-up case, Our Lady of Guadalupe School v. Morrissey-Berru (2020). These are both cases that deal with the religious autonomy doctrine, and I think they represent a concerning trend.
The religious autonomy doctrine is really one of the cores of religious freedom, and it is one of the three main streams of cases in the United States. It has a long history dating back to the time of Christ and continuing throughout the Middle Ages. The doctrine has become ensconced in U.S. case law. Hosanna-Tabor really removed any doubt about the longevity and ongoing relevance of religious autonomy.
Hosanna-Tabor was a case about a teacher in a Lutheran evangelical school who was, what is referred to in religious education as, a “called” person—technically a pastor, though she was teaching in an elementary school. She was ultimately terminated, and the Supreme Court held unanimously that the ministerial exception protected the school’s right to autonomy in that decision.
Our Lady of Gudalupe involved a couple of people, but again, the issue was the question of respecting the parochial-type schools’ rights to choice in their teachers. The Court affirmed the rights of these teachers. The Hosanna–Taber case was unanimous, but there was a strong dissent in Our Lady of Gudalupe, arguing that the criteria of what counts as a ministerial person should be more narrowly defined. This was done out of concern that, if it was not done, there was a possibility of discrimination against people who might be at the edge of whether church autonomy should apply. This concern—whether discrimination can be an entering wedge to restrict religious autonomy—is exactly what troubles me.
What is the troubling trend that you are concerned with?
The trend is an inadequate conception of discrimination. Invidious discrimination is obviously something that we need to be concerned about, and it’s not as though religious believers have an automatic right to override any other social concerns. However, my worry is that the focus on discrimination can have hazardous impacts by eroding the concept of religious autonomy.
The first part of the erosion is that religious autonomy has a jurisdictional character. It’s not just about balancing rights against other rights. Viewing discrimination of various kinds, such as those involved in Hosanna-Tabor and Our Lady of Guadalupe, undermines the jurisdictional character of religious autonomy.
At the highest jurisprudential level, an integralist vision of the legal order gives way to a legalist or positivist vision. For legalists, legislation is the paradigmatic form of law. In this view, granting exceptions for conscientious objection or other religiously motivated concerns undermines the authority of law, makes individuals and groups a law unto themselves, and pulverizes law into anarchy. The alternative is an integralist view in which the legal system includes legislation as adjusted to take constitutional norms into account. So, conscientious objection and religious autonomy are not an exception to a general rule, but instead an integral part of the structure itself. The law is not legislation subject to exceptions, but legislation as contorted by the requirements of constitutional and international human rights law. This integralist view has obvious affinities to the idea that law rests on deeper principles that ground constitutional axiology—principles that the positive norms of constitutions and statutes alone cannot fully capture.
Why do you think this shift from the integralist to a more positivist approach can undermine the right to conscientiously object against some duties imposed by the law?
The fading of the integralist conception of the legal order connects with a deeper and more general shift in equalitarian jurisprudence. Instead of being seen as a legitimate distinguishing factor justifying differential treatment, religious considerations are gradually demoted. Religious beliefs and conduct once thought to deserve the highest form of constitutional protection increasingly come under censure from those administering a new orthodoxy of equalitarianism. In this framework, conscientious objection and religious autonomy come to be seen not as an expression emanating from the core of human dignity, but as a potentially anarchic and dangerous anomaly in the legal system.
This erosion occurs in three stages. The first stage emerges as an equalitarian questioning of the constitutional privilege of freedom of religion or belief. The fact that protection of this freedom is a constitutional bedrock is ignored, and seemingly benign questions are asked, such as: Why is religion special? Why should the conscientious objector working on his or her Sabbath receive special deference? Why should special care be taken to avoid discrimination in religious land use decisions and in religious autonomy decisions? Why should religious belief serve as the ground of a special exemption from otherwise applicable law?
In principle, those questions are fair enough. People should be treated equally. Their dignity should be respected. But the questions are too quick. They ignore the fact that some of the best minds in history have thought there are sound answers to these questions. Among other things, members of religious communities might not have signed on to the general social contract if joining the political community exposed them to the risk of violating even more deeply held religious principles.
But questioning the claim of religion for a different treatment seems to be a legitimate one in constitutional democracies, doesn’t it?
As a practical matter, the “why is religion different” questions reflect a legitimate call for equality, but they have an unforeseen effect. The effect of the ostensibly dying, quite benign question is to place a virtually infinite and costly justificatory load on religious groups, requiring constant re-justification of their social value. The burden is faced repeatedly in every subdiscipline of law, leading not just to thought experiments, but to heavy litigation burdens. There is also a not-so-subtle tendency in determining whether some secular concern outweighs a religious belief to weigh the scale in favor of secular interests. More accurately, because secular and spiritual values are incommensurable, the practical effect is to create presumptions in favor of the secular.
You mentioned that there were two other stages of the religious erosion.
Yes, the next stage in the erosion is linked to the claim that religion is a private affair. That is, it is fine for religion to have freedom so long as it stays in the private sphere. A corollary is that religious premises may not be invoked in public arguments. Religion is fine while doing charitable work, but it should stay out of politics altogether. A related development arises when religion-backed legislation is challenged. In many recent cases, religious reasoning has been held not to meet rational basis standards, with the result that religious beliefs are demoted to second-class status in the marketplace of ideas.
This leads to the third stage of the erosion. Instead of being seen as a presumptively beneficial factor in society, religion comes to be seen as a predominantly negative force. The darker side of sacred ambivalence is seen as more representative, while positive contributions are overlooked. Such judgments are never scientific. Moreover, there is an inevitable skewing factor; bad or scandalous conduct attracts media coverage. Positive contributions are routine and thus little noticed. These and related processes result in profound attrition of social memory and in an understanding of the importance of religion and religious freedom.
These are a long set of steps, but my concern about the drift represented by the dissent in the Guadalupe case is that it fits into a larger pattern: discrimination in any form has become something that can override religious freedom. The worry is that we really need to be more discriminating about discrimination. There are clearly some kinds of discrimination that we should pay attention to, but we should be careful not to jettison the axiomatic principles of religious autonomy in the process of protecting discrimination of “newer kinds.”
From the constitutional perspective, are you arguing that this erosion is based on the attempt to interpret religious freedom more as a part of equal protection jurisprudence rather than First Amendment jurisprudence? Does this trend resemble the concept of religious autonomy as developed by the European Court of Human Rights?
Yes, I think that’s right on both counts. To the first question, I worry about the trend because it is linked to larger patterns in the legal system. I think it’s fair to say we’ve seen a rise of the equality paradigm in constitutional law. Between freedom and equality, equality is more often seen as the trump issue. I worry that this can overwhelm other issues. I think that freedom and equality have always been in some tension with each other, but it’s very important to maintain the freedom side of things. I mean, it’s possible that everyone can be equal and non-free. That would not be a good situation. I think that religious liberty in general, and religious freedom in particular, has been very critical to this.
Now shifting to the European Court, one of the things that’s interesting about the contrast between religious freedom in the European Court context as opposed to the US Supreme Court is that Article 9 of the European Convention on Human Rights does not have an establishment clause. This may be one of the reasons that American constitutional theory is distinctive. There’s clearly language in the European court decisions about the importance of religious autonomy and its critical role as a foundation for religious pluralism—that language runs throughout the decisions.
When we see cases like Hosanna Tabor and Guadalupe in the European Court of Human Rights, it’s a little easier to think of religious autonomy principles in line with other rights that can be balanced against other concerns. I’m thinking particularly of the case of Fernandez Martinez v. Spain (2014) in the European Court. This was a closely divided case, and again, from my perspective, it came out the right way. It involved a former priest who had married and, while there was some question about exactly when and how he got the dispensation, was photographed in a situation as part of a demonstration against celibacy. At that point, after several years, his right to teach religion in Catholic schools was terminated.
Now, although closely divided, the majority of the European Court held that, in effect, the religious autonomy claim under Article 9 was sufficiently strong to protect the right of the church vis-à-vis the employee. It was a hard case because, in some ways, it was not clear. It was clear that he had been allowed to teach for many years, although married, and that there were not many exceptions, but he was not a rabid demonstrator. He just happened to be at an event and got photographed, and this appeared in the press. He was older by the time it got out, so it was very hard for him to find any alternate employment. So, there were many things that weighed in favor of his position, but the court stuck with the principles of religious autonomy. This is an example of how this can gradually shift, particularly without the more jurisdictional notion of the Establishment Clause.
There are, of course, other cases. Recently, there was a decision in Paves v. Chile (2022) in the Inter-American Court of Human Rights. In Paves, a nun who was teaching Catholic religion came out as lesbian. The bishop withdrew her right to teach the Catholic religion. This was a slightly trickier case because she was teaching at a public school. Therefore, there was an argument that it was the public school that had terminated her, and not just the church. Although the school was, in effect, relying on the Catholic denial of authorization to teach. Her case was less sympathetic to her in the sense that she didn’t lose her job but was offered a position as an inspector general. So, in fact, she got a raise. She just couldn’t teach Catholic religion classes anymore. But the Inter-American Court held that there was a violation of the prohibition of sex discrimination in that case. So, while we can’t exactly line these cases up because they’re in different jurisdictions and have different facts, this is the sort of general trend that one can see while looking at these employment discrimination cases. The focus on discrimination norms and employment discrimination norms is gradually getting to the point where it could override the religious autonomy norm. I think that’s a mistake and something that should be countered.
In religious or religiously affiliated entities, there could be employees, as you mentioned, “on the edge.” Their position and functions can be interpreted by some as purely secular, even though their employer treats them as religious employees or “ministers.” The doctrinal takeaway from Hosanna Tabor and its progeny is that the ministerial exemption is virtually absolute, which puts these employees at the hands of their employer. How can we prevent religious employers from abusing such a strong power?
That’s a very good question. This is part of what the dissenters in Guadalupe were focused on—on what happens if you’ve got who, for all practical purposes, looks like a normal employee, a lay teacher, who’s not really charged with teaching religion but has been hired at a parochial school? What happens then? To what extent should religious bodies be able to discriminate when other bodies would not be able to differentiate on the basis of their views as a school? I’m reminded of a case that suggests the difficulty of this issue. It was a situation where an ecclesiastical leader at a school had treated a gay teacher in ways that were offensive. On the one hand, the facts could be read as someone who was abusing his religious position. On the other hand, but for the rule comments and similar issues occurring, it was clearly a case where the parochial school could be concerned about the sexual practices of a teacher. In situations like this, it’s complex because the discrimination may have been just basic anti-gay discrimination and may really have not hinged on the religious beliefs of the school per se. Although but for the caustic comments, the religious autonomy notions would justifiably apply. This is because the school could have legitimate concerns about how its message is being communicated.
That is to say, there will be hard cases, and the question remains—how does one draw the line? Frankly, I don’t know a neat and handy line. I think that if there is clear invidious discrimination, it ought to be stopped. But if it’s also clear that if the religious autonomy side of things is relevant, then I would think they should override. Otherwise, what happens is that you have two instances of discrimination: discrimination against a gay person and also discrimination against a religious group and its normal beliefs. This is where I think we really need to become discriminating against discrimination. We can’t automatically assume that the new form of discrimination automatically wins. Now, that’s what’s happening in the European Court—they’re looking at a very sensitive issue, and there were clearly divisions in the court about how to perceive the underlying facts. In general, I think that the older and more entrenched notions of religious autonomy are likely to give way to a sort of newer concerns in ways that undervalue the religious freedom norms themselves.
Do you mean that a general approach to these issues should be based on the nature of an employer’s discriminatory treatment? In situations where the discrimination committed by an ecclesiastical leader against a gay teacher is so evidently invidious, the teacher should be protected. But when the discrimination is an expression of religious identity, in particular based on a religious group’s doctrine of sexuality, religious autonomy should prevail.
That’s probably as well articulated as I can put it right now. We have to be careful to avoid the various steps we discussed that lead to the gradual reduction and demotion of the right to religious freedom. Yet, I find myself in this difficult position where I’m concerned about the erosion of the fundamental religious autonomy norms—norms that I think need to be taken seriously. However, I can imagine that there are situations where the discrimination is sufficiently clear and unjustified that even the religious body itself would say its representative went beyond what is reasonable in a just system for religious freedom, where dignity for all needs to be protected.
Can concepts like religious autonomy or ministerial exemption be applied to for-profits? We know from Burwell v. Hobby Lobby Stores that closely held for-profit corporations can obtain a religious exemption from general laws requiring health insurance coverage for some contraceptives. Should they also be granted some form of ministerial exemption protection? Do you have any concerns over the possible expansion of this logic?
I think that there are some very difficult issues buried in the Hobby Lobby question. One of the concerns that’s been raised by one of my colleagues, Fred Gedicks, is that you can have situations where protecting a religious group that is imposing harms on other people may itself violate the Establishment Clause. I’m not sure I can do justice to Fred’s position here, but my response, in part, is that the analysis tends not to consider the reverse impact. I think it’s very important that one takes the reciprocal harms into account. It may be that the focus on reciprocal harms transforms the analysis into an inherently balancing one. But I think that’s an important consideration to be remembered.
Regarding Hobby Lobby’s potential to lead to the extension of the ministerial exception or to extend religious autonomy concerns to religiously motivated for-profit companies, my sense is that, first of all, the risks are overstated. We have no empirical evidence that Hobby Lobby has led to some horrendous expansion of for-profit companies into this area. In Hobby Lobby, the owners of Hobby Lobby clearly had sincere religious beliefs, and it’s not clear to me why the fact that one is engaged in a for-profit activity should automatically disqualify people from religious claims. That is another version of the notion that religion is okay so long as it stays in private or in the nonprofit sector, but as soon as it goes into the profit sector, it’s a problem. One of the reasons for this rationale was the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos case, where the Supreme Court made a distinction between for-profits and non-profits. But it was not in the sense that it had to be that way. (emphasis added – Talk About). That decision was based on the facts of that particular case. The Court didn’t need to go further or make any decision regarding the for-profit world. I think that if people can make a credible case that their organization has sincere religious principles and that they don’t want to be forced to avoid these principles just because they enter into a for-profit activity, their religious freedom ought to still apply in the for-profit realm.