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 agency acted lawfully when it issued regulations exempting categories of religious employers from the requirement that contraception be included in employer-provided health plans.

Both cases corrected extravagant circuit court decisions. In the ministerial exception case, the U.S. Court of Appeals for the Ninth Circuit concluded that because the Catholic school teachers did not have a clerical title or extensive theological training, they did not perform an important religious function, even though the teachers led students in prayer, taught religion as part of a grade school curriculum, and prepared students for the sacraments. In Little Sisters, the U.S. Court of Appeals for the Third Circuit held that administrative agencies cannot craft exemptions for religious objectors to the ACA’s requirements, even though the statute itself is silent about whether agencies may craft exemptions and another federal statute (the Religious Freedom Restoration Act) arguably requires that they do so.

Beneath the surface, though, Our Lady of Guadalupe and Little Sisters might have profound implications for religious freedom and the shape of American constitutional law in the years ahead.

Both cases vindicate a concept of church autonomy and institutional religious freedom—in some respects an American constitutional variation on the ancient idea of libertas ecclesiae or the “freedom of the church.” 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.

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