The Opposite of Anarchy and the Transmission of Faith: The Freedom to Teach after Smith, Hosanna Tabor, Obergefell and the Ascendancy of Sexual Expressionism

Abstract

Lawmakers are attaching an increasing variety of constitutional and statutory rights to various forms of sexual expression, marriage and parenting (hereafter “SMP”), which readily provoke contests about the scope of the First Amendment’s Free Exercise and Establishment clauses. Religious beliefs and practices about SMP are foundational to Judeo-Christian cosmology and anthropology. Yet legislators and judges are requiring religious actors to conform to new legal and social preferences on SMP using laws framed as nondiscrimination guarantees. The recent Supreme Court decision declaring a constitutional right to same-sex marriage – Obergefell v. Hodges – increases the likelihood that such laws will be deployed in the context of elementary and secondary religious schools’ employment decisions. While it seems intuitively true that the First Amendment would preserve a scope of freedom for religious schools that would include their authority to require their instructors to support their religious mission in word and deed, leading First Amendment cases and various statutes do not make this readily apparent. A closer look at the leading cases indicates, however that Smith v. Employment Division, Hosanna Tabor v. EEOC and Obergefell are amenable to protecting religious schools’ interests in determining their instructors. Such a way forward is necessary in order to provide de facto religious freedom, especially respecting parents’ opportunities to transmit religion to the next generation.

Keywords: employment, Establishment Clause, faith, First Amendment, Free Exercise, Hosanna Tabor, marriage, nondiscrimination, Obergefell, parenting, Religious Freedom Restoration Act, RFRA, religious schools, sexual expression, Smith, Title VII

JEL Classification: K1