With Talk of Sukkahs and Talmud Teachers, the Supreme Court Reconsiders a Fundamental First Amendment Principle https://mosaicmagazine.com/picks/politics-current-affairs/2020/06/with-talk-of-sukkahs-and-talmud-teachers-the-supreme-court-reconsiders-a-fundamental-first-amendment-principle/

June 25, 2020 | Michael A. Helfand
About the author: Michael A. Helfand is an associate professor at Pepperdine University School of Law and associate director of Pepperdine’s Diane and Guilford Glazer Institute for Jewish Studies.

Last month, the Supreme Court heard oral arguments in two cases where Catholic schools were being sued by former employees who claimed to have been unjustly fired. The schools argued that they were protected from such legal action by what is known in employment law as the “ministerial exception,” which states that, for example, a church can’t be sued for refusing to hire a Jew for the job of preacher. But since the two teachers were not ministers—even if they led students in prayer and taught religious subjects—the Ninth Circuit court of appeals had ruled that the exception didn’t apply in their case.

Several Supreme Court justices appeared unsatisfied by this line of reasoning. Moreover, American Jewish groups are in rare agreement in siding with the schools in this case and, Michael A. Helfand writes, they are correct to do so:

[T]he justices and lawyers raised various real and hypothetical cases to see whether a court could really render principled judgments: Could a synagogue terminate a janitor if he erroneously constructed the communal sukkah? What if a yeshiva were to hire a non-Jewish Talmud teacher; would he be a minister? And what about that early childhood teacher who, among other things, teaches children how to say the sh’ma? Or what about a math teacher—this was Justice Kagan’s example—“who was told to embody Jewish values and infuse instruction with Jewish values?”

At its core, the ministerial exception is intended to ensure that faith communities retain control over those who personify their religious beliefs. If the government could regulate hiring and firing religious leaders, it would strip these communities of the ability to join together freely in pursuit of shared religious goals. Of course, there is an impulse to make exceptions. But once courts open the door to such government intervention, it becomes increasingly difficult to draw a principled constitutional line to constrain government excess in regulating the relationship between religious institutions and their leaders.

[Religious] leaders interpret religious doctrine and texts, embody religious ideals, and shape religious values. Therefore, to cede any measure of control to the state over the decision to hire and to fire those leaders would give it the capacity to manipulate the very foundations of a religious community.

In some faith communities, leaders receive the title of minister; they stand in front of a church where they preach to and pray with their congregants. But for many minority faith communities—and, in particular, for the Jewish community—the ministerial paradigm of religious leadership presents an awkward fit.

Read more on Jewish Review of Books: https://jewishreviewofbooks.com/articles/7798/the-first-amendment-and-the-vocabulary-of-freedom/