Various histories and sociologies of religion and various theologies have informed the Supreme Court’s First Amendment jurisprudence over the years. The Reynolds court cited the then fashionable racial theories of political scientist Francis Lieber to support its condemnation of polygamy. Justice Black spoke of the threat that Catholicism posed to the American polity. Liberal theologians have been enlisted to expand the reach of conscientious objector status and condemn the teaching of creation science (U.S. v. Seeger and McLean v. Arkansas). The Court in Hosanna-Tabor tells a story of “the church.”

The last sentence of the Court’s opinion in Hosanna-Tabor announces the dogma that binds the majority opinion. Affirming for the first time the constitutional status of the ministerial exception, the Chief Justice declares that “(t)he church must be free to choose those who will guide it on its way.” Not “persons” must be free to choose their own ministers, but “the church” must be free. What is “the church?” Christians mean different things at different times when they use the definite article in speaking of church—when they speak of “the church.” Sometimes they are referring to the church on the corner, or a particular church organization, such as the Presbyterian Church USA, one of any number of churches. (That is how the Court uses the phrase at various points, when referring to Hosanna-Tabor in particular, as on page 5, or when it refers specifically to the Church of England, as on page 7, and so on.) In legal and political contexts, “the church” may be opposed to “the state,” vaguely throwing a circle around all religiously motivated activity. The Court in Hosanna-Tabor is not speaking in these ways in its last sentence. The Court is speaking theologically, and dogmatically, as it does several pages earlier in describing the purpose of the ministerial exception: “The exception . . . ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly eccle­siastical’—is the church’s alone.”

Theologically speaking, “the church” refers to what might be termed the mystical church—also known in Christian doctrine as the “body of Christ”—that is, the communion of all Christian believers across space and time, alive and dead, unified through apostolic succession. Christians have differed about how the visible church on earth should be governed and have related in different ways with political authorities. The Roman Catholic Church understands itself to be a universal church—that is, as embodying all Christians, on heaven and on earth. Protestants have had a range of theological readings of the church, derived in part from their new readings of the New Testament beginning in the sixteenth century, a range that is reflected in the range of ecclesiologies among American colonial proponents of religious freedom. But a distinguishing feature of the United States, arguably, is that after 1791, the unity of Christendom expressed as “the church,” whether in Roman Catholic or Protestant guise, no longer has legal personality. It is the people who are in charge.

Take Roger Williams, for example, the seventeenth-century founder of Rhode Island and colonial hero of many a current religious defender of the rights of churches in the United States. For Williams, the church was to be found, if at all, in those local few “gathered in his name,” without any bureaucratic superstructure. At the end of his life, Roger Williams, skeptical of Christian claims of biblical authority to found churches and of the hypocrisies of what he derided as Christendom, belonged to no church. One could even argue that it was Williams’ skepticism about organized religion rather than any desire to protect religious institutions that most presages constitutional religious disestablishment. Williams, pious Christian though he was, thought political life in a diverse community could be organized without reference to religion.

The majority opinion in the unanimous decision from the Court in the Hosanna-Tabor case affirming the constitutional status of the ministerial exception as a right of the church is supported by a curious mash-up of religious and political history. The villain of the piece is Henry VIII. Before the Act of Supremacy, we are told, the church in England had been free, at least since 1215, thanks to King John and Magna Carta. The church was free because King John had agreed that the church had the freedom of election to church offices. According to the Court, Henry VIII interrupted that freedom with his break from Rome. The church was not free again until the Puritans and the Quakers arrived in the New World. The freedom of the church, both in England during the time between King John and King Henry, and after 1607 in the English colonies, but particularly since ratification of the First Amendment, can be summed up, as the Court describes it, in the capacity of the church to select its own ministers, free of political interference.

Profound differences in Roman Catholic, Reformation, and Anabaptist ecclesiologies and understandings of the freedom of Christians are finessed in this breezy historical account. Slipping back and forth between “religious organization,” “religious institution,” “religious group,” and “church,” as well as posing the relationship of each to an also homogenized and ahistorical “state,” the Court manages to avoid the enormously fraught issue of what “the church” is and who speaks in its name at various times and in various places. King John, Henry VIII, James Madison, and William Penn, members of very different churches, are all understood to be speaking of the same special freedom for “the church” to select its own ministers.

Church history stops then for the Chief Justice in 1791. After the truncated account of English church history, what is most striking in his opinion is the entire lack of acknowledgment of the remarkable changes to the churches that occurred in the American colonies. Disestablishment, division, revivalism, populism, and immigration profoundly changed American religion. After 1791, official Americans, when speaking of American religion, arguably can no longer descriptively—or constitutionally—speak, as the Court does, of “the church” and its rights. The church had been disestablished.

Precedent for the majority’s reading of the rights of the church is also found in what are known as the church property cases, a set of US cases that address disputes over future ownership and use of churches when their congregations have a split in doctrine. This is a complex line of cases but one difficulty with using the church property cases as establishing the right of “the church” to choose its ministers is that, by definition in such cases, there are at least two groups of people who lay claim to a right to define who is a minister and to choose their own minister. In each case, after the courts decided the issue, one group did not get to select its own minister or it had to abandon the church in question and found its own new congregation in order to do so. In each case, the Court sided with what it took to be the hierarchy.

The Court concludes this section of its decision with an announcement of the rule that “‘the First Amendment commits [resolution of the property cases] exclusive­ly to the highest ecclesiastical tribunals’ of the Church.” Citing its decision in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, the Court explains that the First Amendment “permit[s] hierarchical religious organi­zations to establish their own rules and regulations for internal discipline and government, and to create tribu­nals for adjudicating disputes over these matters.”

Evidence for the Court’s transcendent ecclesiology, that is, its theory of the church and of church governance, can also be found in the way it distinguishes Smith—the peyote case. Smith held that the free exercise clause of the First Amendment does not provide a constitutional exemption for religiously motivated persons from laws of general application because secular laws fall equally on the religious and the non-religious. The alternative, as Justice Scalia explained in his decision for the majority in Smith, is that each person would be a law unto his own. The Smith rule does not apply in Hosanna-Tabor, the Chief Justice explains, because, the issue is not one of the right of religious individuals to a special exemption from neutral laws—a right defended by many as being founded in the respect accorded to individual conscience in liberal legal theory—but of the right of “the church” itself:

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.

It is worth looking at this paragraph very closely. What the Court says is that while the free exercise clause of the First Amendment provides no constitutional exemption from laws of general application for individual believers who engage in “physical acts” consistent with their religious beliefs—what many Christians term sacraments—the establishment clause provides an exemption for “the church” from such laws because by interfering with church governance the Court is interfering with “the faith and mission of the church itself.”

Here the Court speaks of the doctrinal priority of “the church,” and presumably, therefore, of its current earthly would-be representatives. Acknowledging that the ADA would seem to be a law of general application from which religious actors would not be exempt, Roberts explains that Smith concerned the constitutional status of “only outward physical acts.” The Court here seems to be saying that, as Douglas Laycock, representing Hosanna-Tabor, did at oral argument (see my previous post), that “the church” is prior to the sacraments because the church forms the consciences of individuals. Preserving the hierarchical discipline and right to autonomy of the church is structural to the US Constitution evident in the priority which disestablishment (read as a rejection of Henry VIII’s rejection of the Pope in the Act of Supremacy) has to free exercise in the ordering of the religion clauses in the First Amendment itself, while acts performed in obedience to the religious conscience of the individual must bow to secular law.

By reading its version of church history into the First Amendment, the Court is enabled to give priority to the rights of some Christians through its evocation of “the church.” But that history also enables a denial of rights to other Christians as well as to non-Christians. Freedom from hierarchical church discipline arguably accorded to American Christians by the religion clauses is disregarded in favor of a strong assertion of the rights of the church.

Most significantly, though, in the current moment, is that there is arguably no analogy to “the church” in its mystical sense outside Christianity. While other religious communities speak of the body of the faithful in various ways, the Court’s opinion would seem to suggest that its doctrine is tightly and very specifically bound to a history of the Christian church and its assertions of its rights in the context of a particular reading of English history.

Founded in its reading of English church history, the constitutional right articulated by a unanimous court in this decision is “the freedom of a religious organization to select its ministers.” While the Court acknowledges that it might occasionally prove difficult to decide who qualifies as a minister for these purposes, it nowhere mentions the difficulties of determining what a religious organization is. Justice Alito’s concurring opinion, evincing a careful concern for the Christian exclusivism of the majority opinion, begins the project of expanding the discussion beyond the church. “Minister,” Alito states, is a term that is mostly limited to the Protestant churches. His solution to this problem is to define minister functionally and universally, assuming that such a role can be found in all religious traditions—and beyond.

Alito, with the EEOC, sees the rights of religious organizations with respect to ideological control of their members as similar to that of all other voluntary associations, a right founded in the freedom of association expressed in the First Amendment, not in the rights of religion: “Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.” This turn to the voluntariness of American religious life corresponds much more closely to what disestablished religion looks like in the United States today and to how most Americans understand their relationship to religious communities, one not of top-down hierarchy but one of bottom-up participation. It is also rooted in another reading of the history the Majority tells, one that tells a story of the freedom of Christians, and eventually of non-Christians as well. It is an understanding that sees Ms. Perich as the possessor of rights, not “the church.”