PEACEFUL COEXISTENCE

Panelists’ Written Statements
217
not ideal in certain respects, 146 the Court rightly recognized that on balance, in light of what
both Perich and the church understood and expected from the position, Perich’s job
responsibilities were sufficiently ministerial that she should come within the compass of the rule.
Yet the Court refused to extend that holding any more than necessary. It declined to opine on
other kinds of law suits and other types of positions. 147 And it did not adopt the view that
churches have unbridled discretion to define any job as “ministerial” thereby to circumvent the
state’s laws. That, too, was proper, inasmuch as the fact that a religious institution is involved in
this type of conflict does not diminish, let alone erase, the state’s—or Perich’s own—interest in
vindicating the equal application of non-discrimination laws. 148 That interest remains powerful,
even in the presence of a religious institution in the conflict. But the involvement of a church
does qualify or complicate the government’s interest, introducing important competing values
with which the government’s and Perich’s interests clash. It would be a mistake to select
between these values categorically for constitutional purposes—choosing one set that ought to
dominate the other set in all future cases. It would do violence to commitments each of which
are important features of our political and legal traditions.
It is true that narrow decisions may have costs. A narrow decision may provide less certainty
than a broad decision; it may give prospective litigants less guidance; and it may leave the law
less stable than is optimal. 149 But that same uncertainty and instability may also promote
compromise at the individual level; it may enable courts to communicate effectively with other
government actors; and it may be more honest about the realities of constitutional adjudication—
more candid and therefore more legitimate in a liberal democracy. Most importantly, however,
narrow constitutional decisions avoid the trap of fixing in amber a monolithic ranking of values
and interests. They reserve judgment for future cases and controversies.
146
For example, the nature of the remedy sought—whether money damages or reinstatement—might make a greater
difference than the Court acknowledged. See id. at 709. Furthermore, the discussion of free exercise doctrine was less
than fully persuasive in distinguishing the unduly parsimonious rule applicable to individuals. See id. at 706-07;
Employment Division v. Smith, 494 U.S. 872 (1990).
147
Hosanna-Tabor, 132 S.Ct. at 710 (“There will be time enough to address the applicability to the exception to
other circumstances if and when they arise.”). State and federal courts have already begun to confront these issues,
and in time a mature tradition of judicial doctrine of the ministerial exception will develop. See, e.g.,
http://clrforum.org/2012/08/14/dc-court-of-appeals-first-amendment-does-not-bar-ministers-breach-of-contract-suitagianst-church/;
http://clrforum.org/2013/01/31/new-york-court-dismisses-breach-of-contract-suit-underministerial-exception/.
148
See Hosanna-Tabor, 132 S.Ct. at 710 (“The interest of society in the enforcement of employment discrimination
statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their
beliefs, teach their faith, and carry out their mission.”).
149
Whether this is true will depend on exactly how uniformly the principles underwriting the broader decision are
applied. For an argument that the broad rule in the Smith decision actually provides less guidance than might be
expected, see DEGIROLAMI, THE TRAGEDY OF RELIGIOUS FREEDOM, Chapter 8.