Almost forty years ago in the Columbia Law Review, First Amendment scholar Douglas Laycock argued that the First Amendment protected a right of church autonomy that was distinct from the standard conscientious objector claims of religious free exercise. In the years since, scholars such as Notre Dame’s Richard Garnett have argued for a principle of freedom of the church and the recognition of plural claims of jurisdiction and authority between church and state in American constitutional law. Although they have generated controversy in some progressive precincts, the U.S. Supreme Court’s decisions last week in Our Lady of Guadalupe School v. Morrissey-Berru and Little Sisters of the Poor v. Pennsylvania were quite straightforward. Both cases were decided 7-2 on the same day, with the five conservative members of the Court joined by Justices Breyer and Kagan. In Our Lady of Guadalupe , Justice Alito’s opinion held that Catholic parochial schools were protected by the First Amendment’s “ministerial exception” from employment disputes involving teachers. Little Sisters of the Poor posed an issue of administrative law in this latest, post- Hobby Lobby round of litigation over the contraceptive mandate imposed under the Affordable Care Act. Justice Thomas’s opinion held that a federal […]
