America’s Constitutional Theology:
Sovereignty and Grace In Bostock, Espinoza, and Our Lady of Guadalupe
William E. Thro
Constitutional Theology is the intersection of theology with constitutional theory.1Professor Oman coined the term “constitutional theology” in these pages: available at https://canopyforum.org/2020/09/01/the-perils-of-constitutional-theology/). Constitutional Theology recognizes that the constitutional design will reflect society’s beliefs about the nature of humanity or those who rule. At the same time, it acknowledges that, if the constitutional system is to work, a faith’s interactions with the larger society must echo the constitutional assumptions. This essay explains the idea of Constitutional Theology, briefly defines the contours of America’s Constitutional Theology, and illustrates how recent three Supreme Court decisions, Bostock v. Clayton County,2 140 S. Ct. 1731 (2020). Espinoza v. Montana Department of Revenue,3140 S. Ct. 2246 (2020). and Our Lady of Guadalupe School v. Morrissey-Berru,4140 S. Ct. 2049 (2020). reflect America’s Constitutional Theology.
First, theological assumptions about the nature of humanity or those who rule are relevant to constitutional design. Like the Christian Church in the early fifth century,5R.C. Sproul, The Pelagian Controversy, Table Talk (August 2005) (available at https://www.ligonier.org/learn/articles/pelagian-controversy/ ) a society must choose between Pelagius6Pelagius taught that individuals had the capability to repent their sins and achieve salvation. God’s grace was helpful, but unnecessary to salvation. R.C. Sproul, Willing to Believe: The Controversy over Free Will 35 (1997). and Augustine.7Augustine taught that individuals lacked the ability to repent their sins and achieve salvation. God’s grace is indispensable to salvation. Sproul, Willing to Believe, supra note 6, at 51. A polity must decide if human nature is good or sinful.8See George Weigel, The Cube and the Cathedral: Europe, America, and Politics Without God 78-86 (2005). If a society, like Pelagius, assumes humanity is inherently good and virtuous, then it will elevate the will of the majority while diminishing “the individual’s right to freedom from the majority.”9 Steven Breyer, Active Liberty 5 (2005). As I explained elsewhere, Justice Breyer’s interpretative method constitutes a “Pelagian Vision.” William E. Thro, A Pelagian Vision for Our Augustinian Constitution: A Review of Justice Breyer’s Active Liberty, 32 J. Coll. & U.L. 491 (2006). Because the “the Pelagian ‘freedom of the will’” asserts “human coercion [can] effect a real change in the soul,” then “human effort can change human nature.”10James R. Rogers, Lessons for America from Europe’s Christian Democracy, Law & Liberty (July 28, 2020) (available at https://lawliberty.org/lessons-for-america-from-europes-christian-democracy ). Conversely, if a polity, like Augustine, assumes humanity is inherently sinful, then it will constrain, control, and check the majority and, thus, develop “the conceptual ground for political freedom.”11Id. If the winners of the last election or the followers of the prevailing faith cannot silence their opponents or punish those of other faiths, then the political losers and minority religions are ensured inalienable rights. “Since the fall, human nature has been corrupt. . . . [all] acts of sin flow out of this corrupted nature,”12 R.C. Sproul, What is Reformed Theology: Understanding the Basics 1595 (1997) (Kindle Edition). the state can never perfect humanity.13Abraham Kuyper, Calvinism: Source and Stronghold of Our Constitutional Liberties in Abraham Kuyper: A Centennial Reader 279, 314 (James D. Bratt, ed. 1998).
Second, if the constitutional system is to function, a particular faith’s interactions with the government and larger society must echo the constitutional assumptions. This does not mean an abandonment of core theological principles, but it does mean emphasizing those theological principles which strengthen constitutional norms. When Henry VIII created a new constitutional reality by declaring himself head of the English Church, Anglican theologians refined Christian theology to reflect the new constitutional reality.14 Mark Chapman, Anglicanism: A Very Short Introduction 20-36 (2006) James I commissioned the King James Bible, in part, to justify his claims of monarchical power.15 Alister McGrath, In the Beginning: The Story of the King James Bible and How It Changed a Nation 141 (2000) Confronting the constitutional equivalent of a state of nature,16Nathaniel Philbrick, Mayflower: A Story of Courage, Community, and War 41 (2006). the Mayflower passengers adapted their theology to the constitutional reality17Stephen Tomkins, The Journey to the Mayflower: God’s Outlaws and the Invention of Freedom 332 (2020). and formed a “civil body politick.”18John G. Turner, They Knew They Were Pilgrims: Plymouth Colony and the Contest for American Liberty 60 (2020). By establishing government with the consent of the governed and by defining the community to include “Separatists” and “Strangers,”19The religious passengers on the Mayflower that we know as “Pilgrims” did not use that term to refer to themselves, but regarded themselves as “Religious Separatists” meaning the State should not control the Church. The “Separatists” used the term “Strangers” to refer to the Mayflower passengers who were not motivated by religion as well as masters and servants, the Mayflower Compact “was not the actual American founding, but a crucial pre-founding, informing the beginning of the American Republic.”20Peter Wood, 1620: A Critical Response to the 1619 Project 32 (2020). Facing religious persecution for their unusual religious practices, the early Latter-day Saints in America embraced the Constitution as divinely inspired.21Oman, supra note 1. When Protestants suggested that Roman Catholicism was incompatible with American norms, “Catholic thinkers such as John Courtney Murray . . . crafted theologies that accommodated religious freedom and pluralism. . . [and] made peace with the U.S. Constitution.”22Id. In South Africa, where racial superiority was part of the constitutional fabric, Calvinist theologians perverted Dutch theologian Abraham Kuyper’s theological ideas to justify apartheid.23Allister Sparks, The Mind of South Africa: The Story of the Rise and Fall of Apartheid 155-57 (1990). In France, the secular leaders today are attempting to persuade Muslims to reconcile their theology to the constitutional realities of the Fifth Republic.24Christopher Caldwell Macron Seeks an Enlightened Islam, Wall Street Journal, December 4, 2020 (available at https://www.wsj.com/articles/macron-seeks-an-enlightened-islam-11607037298 ).
Because Calvinism was widely accepted25Mark David Hall, Roger Sherman And The Creation Of The American Republic 12-40 (2013). in the Framing Generation,26 I use the term “Framing Generation” to include all of the “public” at that time rather than simply those who drafted the Constitution or attended the ratifying conventions. If “original public meaning” is the touchstone, then it is the “public” not just the drafters or those at the ratifying convention. To the extent that we can glean their views about the meaning of words, “public” would also include women, non-property owning males, and non-enslaved African-Americans. America’s Constitutional Theology reflects the paradox of Calvinism: “Man’s will is corrupt by nature but also capable of doing good. In this paradox are mingled dread, hope, and triumph.”27Marci Hamilton, The Calvinist Paradox of Distrust and Hope at the Constitutional Convention, in Christian Perspectives on Legal Thought 293, 294 (Michael W. McConnell, Robert F. Cochran, Jr., & Angela C. Carmella, eds., 2001). Like Madison,28Madison’s views reflect the influence of Calvinist Theologian John Witherspoon., Ian Spier, The Calvinist Roots of American Social Order: Calvin, Witherspoon, and Madison, Public Discourse (Apr. 13, 2017) (available at https://www.thepublicdiscourse.com/2017/04/19116/ ). America’s Constitutional Theology acknowledges “there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust,”29The Federalist No. 55 (James Madison). but knows “there are other qualities in human nature, which justify a certain portion of esteem and confidence.”30Id. America’s Constitutional Theology recognizes humans are sinners, not angels,31The Federalist No. 51 (James Madison). but calls upon “the better angels of our nature.”32Abraham Lincoln, First Inaugural Address (1861). America’s Constitutional Theology has two streams — Constitutional Sovereignty and Constitutional Grace.
Constitutional Sovereignty is the result of the framing generation’s widely shared theological beliefs influencing the core constitutional assumptions.33See William E. Thro, Angels Do Not Govern: Constitutional Sovereignty as A Response to Humanity’s Sinful Nature, Canopy Forum (September 2020) (available at https://canopyforum.org/2020/09/09/angels-do-not-govern/). The Constitution’s framing Generation “appealed frequently to biblical language and principles in their political discourse”34 Daniel L. Dreisbach, Does Biblical Literacy Enrich Constitutional Literacy? The Bibles Forgotten Influence on the American Constitutional Tradition, Canopy Forum (September 2020) (available at https://canopyforum.org/2020/09/23/does-biblical-literacy-enrich-constitutional-literacy-the-bibles-forgotten-influence-on-the-american-constitutional-tradition/). and, like Calvin, assumed “there is never a moment in human history when that which is human can be trusted blindly as a force for good.”35Hamilton, supra note 25, at 295. Reflecting this awareness of biblical principles and Calvinist theology,36Calvinist theology is the philosophical basis for many aspects of the American Republic. See James H. Smylie, Madison and Witherspoon: Theological Roots of American Political Thought, 73 American Presbyterians155 (1995). the United States Constitution embodies an “obsessive distrust of government — all government — and [the] elevation of law into the ruling power of the state. Indeed, the idea of law itself as sovereign is the key.”37David Starkey, Magna Carta: The Medieval Roots of Modern Politics 1308 (2015) (Kindle Edition) (emphasis original). Instead of vesting power and authority in the President or Congress or collective state governments or the people themselves, “We the People” consented to elevating the law, or more precisely the Constitution, to sovereign status. 38For an overview of the process of obtaining the consent of the governed, see Pauline Maier, Ratification: The People Debate the Constitution, 1787-88 (2010).
Constitutional sovereignty has three aspects.39Thro, Angels Do Not Govern, supra note 31. First, because “governments are formed to secure” the rights of the people and “derive their just powers from the consent of the governed,”40Declaration of Independence, ¶ 2 the Constitution “withdraws certain subjects from the vicissitudes of political controversy” and “places them beyond the reach of majorities and officials.”41West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943). Second, when a particular statute or executive action “contravenes the Constitution, it will be the duty of judicial tribunals to adhere” to the Constitution and declare the statutes and executive actions void.42The Federalist No. 78 (Alexander Hamilton). Third, if the Constitution is “interpreted, as it ought to be interpreted, the Constitution is a glorious liberty document.”43Frederick Douglass, What to the Slave Is the Fourth of July? (1852) Therefore, judges must accept “the Constitution’s meaning was fixed at its ratification [or the ratification of the amendment] and the judge’s job is to discern and apply that meaning to the people’s cases and controversies.”44Neil Gorsuch, A Republic If You Can Keep It 119 (2019).
Constitutional Grace recognizes, if American government is to function, all American faiths must stress those aspects of their theologies which strengthen Constitutional Sovereignty.45 See William E. Thro, Constitutional Grace: Securing the Blessings of Liberty Through Dignity and Forgiveness, Canopy Forum (November 2020) (available at https://canopyforum.org/2020/11/18/constitutional-grace-securing-the-blessings-of-liberty-through-dignity-and-forgiveness/ ). A constitutional order assuming “all . . . are created equal and are endowed by their Creator with certain unalienable rights”46Declaration of Independence ¶ 2. will function only if Americans have a “spirit of liberty” that is “not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.”47Learned Hand,The Spirit of Liberty (1944). (available at https://www.thefire.org/first-amendment-library/special-collections/the-spirit-of-liberty-speech-by-judge-learned-hand-1944/ ). This “spirit of liberty” cannot be precisely defined, but is rooted in faith.48Id. Consequently, there must be a “‘golden triangle of freedom’ — the cultivation and transmission of the conviction that freedom requires virtue, which requires faith, which requires freedom, which in turn requires virtue, which requires faith, which requires freedom and so on, like the recycling triangle, ad infinitum.”49Os Guinness, A Free People’s Suicide 1011 (2013) (Kindle edition). The framing generation clearly understood that a high degree of religious faith and personal virtue were essential to the operation of the constitutional machinery.50See Eric Metaxas, If You Can Keep It: The Forgotten Promise of American Liberty 53-70 (2016) (applying and expanding Guinness’ concept).
More precisely, for our constitutional system to function, all Americans, regardless of faith, must respond with something similar to Kuyper’s Common Grace — a sense of “civic virtue, a sense of domesticity, natural love, the practice of human virtue, the improvement of public conscience, mutual loyalty among people, and a feeling for a piety leaven life.”51Abraham Kuyper, Common Grace in Abraham Kuyper: A Centennial Reader 165, 181 (James D. Bratt, ed. 1998). Common Grace, an idea which “earlier Reformed theologians had left as hints and pieces” and then was “expanded and systematized” by Kuyper,52James D. Bratt, Editor’s Introduction to Common Grace, in Abraham Kuyper: A Centennial Reader 165, 165 (James D. Bratt, ed. 1998) is “the unmerited favor of God, shed upon all people regardless of their spiritual destiny.”53James D. Bratt, Abraham Kuyper: Modern Calvinist, Christian Democrat 3901 (2013) (Kindle Edition). It is “God’s way of bringing the cultural design of the creation to completion”54Richard J. Mouw, Abraham Kuyper: A Short and Personal Introduction 599 (2011) (Kindle Edition) by empowering “non-Christians” to excel “in certain fields and all of their efforts had excellent points.”55James D. Bratt, Abraham Kuyper: His World and Work in Abraham Kuyper: A Centennial Reader 1, 16 (James D. Bratt, ed. 1998).
At its core, Constitutional Grace requires an emphasis on dignity and forgiveness.56Thro, Constitutional Grace, supra note 43. Dignity acknowledges “all humans are created in the image of God and therefore of inherent worth.”57Obergefell v. Hodges, 576 U.S. 644, 735 (2015) (Thomas, J., joined by Scalia, J., dissenting) Forgiveness means “a willingness to accept genuine difference, including profound moral disagreement.”58See John D. Inazu, Confident Pluralism: Surviving and Thriving through Deep Difference 87 (2016). Forgiveness requires us to permit views we find “deeply unacceptable” or “blasphemously, disastrously, obscenely wrong.”59Bernard Williams, Toleration: An Impossible Virtue in Toleration: An Elusive Virtue 18 (David Heyd, ed. 1998). See also, Inazu, supra note 56, at 87 (Quoting the same passage from Williams to make a similar point). We can and must learn to “live with those we regard as damned.”60Inazu, supra note 56, at 5-6. Forgiveness means recognizing America is “wide enough both for you and ‘a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’”61Chelsey Nelson Photography LLC v. Louisville/Jefferson Cty. Metro Gov’t, ___F. Supp. 3d ____,2020 WL 4745771, at *2 (W.D. Ky. Aug. 14, 2020).
This creed reflects the Protestant, particularly Calvinist, theology, that the Framing Generation widely embraced.62Daniel L. Dreisbach, Reading the Bible with the Founding Fathers (2017); Mark David Hall, Did America Have a Christian Founding?: Separating Modern Myth from Historical Truth (2019) Because “all have sinned and fall short of the glory of God,”63Romans 3:23 (English Standard Version). Scripture repeatedly reinforces this message. See 1 Kings 8:46; Psalm 14:3; 1 John 1:8. our “Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”64New York v. United States, 505 U.S. 144, 187 (1992). Since, as Augustine explained, an “unjust law” is no law at all, our government must pursue “just laws” that “square with the moral law or the law of God.”65Martin Luther King, Letter from the Birmingham Jail (1963). “To form a more perfect Union”66U.S. Const. Preamble. based on “self-evident truths”67Declaration of Independence, ¶ 2. in a pluralistic society requires Americans to practice grace exemplified by “Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten.”68Learned Hand, The Spirit of Liberty (1944) Jesus told us to love our neighbors, defining “neighbor” broadly to include those whom the Jews regarded as cultural outcasts.69Luke 10:25-37 (Parable of the Good Samaritan). Jesus said, “if you forgive others their trespasses, your heavenly father will also forgive you, but if you do not forgive others their trespasses, neither will your Father forgive your trespasses”70Matthew 6:14-15 (English Standard Version). Cf. Matthew 11:25 (“And whenever you stand praying, forgive, if you have anything against anyone, so that your Father also who is in heaven may forgive you your trespasses.”) (English Standard Version) and he instructed us to forgive a multitude of times.71Matthew 18:21-35. Cf. Luke. 17:1-4 (“Pay attention to yourselves! If your brother sins, rebuke him, and if he repents, forgive him, and if he sins against you seven times in the day, and turns to you seven times, saying, ‘I repent,’ you must forgive him.”) (English Standard Version).
While based in Protestant Christianity, America’s Constitutional Theology is equally applicable to the Catholic and Orthodox Christian traditions as well as Judaism, Islam, Hinduism, Buddhism, any other faith. As Mandela explained, the ideas expressed in the Magna Carta, the Petition of Right, the English Bill of Rights, and the American Constitution are universal.72See Nelson Mandela, Statement from the Dock (1964) (available at https://www.un.org/en/events/mandeladay/court_statement_1964.shtml ). As Obama noted, there is “a truth that lies at the heart of every world religion — that we should do unto others as we would have them do unto us. That we see ourselves in other people. That we can recognize common hopes and common dreams.”73Barack Obama, Address on the Centennial of Nelson Mandela’s Birth (2018). This creed envisions “an America which has never been, and which may never be nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all.”74Learned Hand, The Spirit of Liberty (1944).
America’s Constitutional Theology mandates our leaders, including judges, to recognize the rule of the Constitution and it requires everyone, not just our leaders, to respect the dignity of others and forgive those who have fundamentally different views. Constitutional Sovereignty will not function unless there is a large degree of Constitutional Grace. “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.”75Id. Constitutional Grace reaches its full potential only if constitutional sovereignty is “able to transform the jangling discords of our Nation into a beautiful symphony.”76Martin Luther King, I Have a Dream (1963). Our leaders and fellow Americans strive to follow this creed, but the Supreme Court has embraced it. With some exceptions, such as Dred Scott v. Sandford,7760 U.S. (19 How.) 393 (1857). Plessy v. Ferguson,78163 U.S. 537 (1896). Buck v. Bell,79274 U.S. 200 (1927). Koremastu v. United States,80323 U.S. 214 (1944). and Roe v. Wade,81410 U.S. 113 (1973). the Court’s decisions reflect “a vital responsibility to enforce the rule of [the Constitution], which is critical to a free society.”82Amy Coney Barrett, Opening Statement, Confirmation Hearing of Judge Barrett to be Associate Justice of the Supreme Court of the United States (October 12, 2020). Instead of dividing Americans,83Unfortunately, the Court’s same-sex marriage decision, Obergefell, did not extend grace to those who, for religious reasons, oppose same-sex marriage. Davis v. Ermold, 141 S. Ct. ____, _____ (2020) (Thomas, J., joined by Alito, J, statement respecting the denial of certiorari). the Court has sought to find a “confident pluralism that conduces to civil peace and advances democratic consensus-building.”’84Christian Legal Soc. v. Martinez, 561 U.S. 661, 733-34 (2010) (Alito, J., joined by Roberts, C.J, Scalia, & Thomas, JJ., dissenting). The decisions in Bostock, Espinoza, and Our Lady of Guadalupe illustrate the Court’s embrace of Constitutional Sovereignty and Constitutional Grace.
In Bostock, the Court held that an employer violates Title VII, which makes it “unlawful…for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex,”8542 U.S.C. § 2000e-2(a)(1). by firing a person for being homosexual or being transgender. By insisting the judiciary “normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment,”86Bostock, 140 S. Ct. at 1737. the Court endorsed Constitutional Sovereignty’s originalist/textualist interpretative method.87Thro, Angels Do Not Govern, supra note 31. Emphasizing that “only the words on the page constitute the law adopted by Congress and approved by the President,”88Bostock, 140 S. Ct. at 1737. the Court adopted Constitutional Sovereignty’s rationale for originalism/textualism: “If judges could add to, remodel, update, or detract from old statutory terms . . ., we would risk amending statutes outside the legislative process . . . [a]nd we would deny the people the right to continue relying on the original meaning of the law.”89Id. The Court also recognized “fidelity to original meaning does not require fidelity to original expected application.”90Jack M. Balkin, Framework Originalism and the Living Constitution, 103 N.W. L. Rev. 549, 552 (2009). “What judges must be faithful to is the enacted law, not the expectations of the parties who wrote the law.”91Steven G. Calabresi & Livia G. Fine, Two Cheers for Professor Balkin’s Originalism, 103 N.W. L. Rev. 663, 669 (2009). Ultimately, “the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”92Bostock, 140 S. Ct. at 1737.
The dissents also embrace Constitutional Sovereignty’s emphasis on original public meaning. Justice Alito, joined by Justice Thomas, believes original public meaning requires “an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment.”93Id. at 1767 (Alito, J., joined by Thomas, J., dissenting). The Constitution and statute are not “messages picked up by a powerful radio telescope from a distant and utterly unknown civilization” but “communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time.”94Id. (Alito, J., joined by Thomas, J. dissenting). Put another way, original public meaning is informed by, if not controlled by, original expected applications. Justice Kavanaugh emphasizes the inquiry into original public meaning is ordinary meaning, not literal meaning.95Id. at 1825 (Kavanaugh, J., dissenting). When interpreting a phrase, “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.”96Id. at 1827 (Kavanaugh, J., dissenting). Undoubtedly, future cases will further develop the role of original expected applications in determining original public meaning and whether original public meaning turns on ordinary meaning or literal meaning, particularly in the context of a phrase.97See Samuel Alito, Address to the Federalist Society National Lawyers’ Convention (2020) (transcript available at https://otter.ai/u/ezh-387rQb7p7Yq87udbMb4Eovk ).
Two aspects of Bostock reflect Constitutional Grace. By interpreting Title VII to prohibit the termination of employees because of their homosexuality or transgender status, the decision affirms the equal dignity of these Americans in the context of secular employment. Indeed, Bostock is the capstone of a jurisprudential structure begun in Romer v. Evans98517 U.S. 620 (1996). and extending through Lawrence v. Texas,99 539 U.S. 558 (2003). United States v. Windsor,100570 U.S. 744 (2013). and Obergefell v. Hodges.101576 U.S. 644 (2015). Additionally, by saying it was “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution” and raising the possibility that religious liberty claims may result in different outcomes in future cases, the Court extended grace toward those Americans who, for religious reasons, disapprove of homosexual conduct and regard gender identity as a denial of God’s creation.102Bostock, 140 S. Ct. at 1754.
In Espinoza, the Court invalidated a Montana state constitutional provision that prohibiting aid to religious organization.103Charles J. Russo & William E. Thro, Born of Bigotry, Died in Religious Liberty: The Supreme Court Ends the Blaine Amendments in Empowering Parental Choice, Canopy Forum (July 2020) (available at https://canopyforum.org/2020/07/14/born-of-bigotry-died-in-religious-liberty/ ). Consequently, if a state chooses to subsidize private education, then the State cannot exclude religious schools from the subsidy solely because they are religious.104Espinoza, 140 S. Ct. at 2261. Advancing Constitutional Sovereignty, Espinoza effectively prohibits government at all levels from treating religious organizations worse than it treats secular organizations.105Id. at 2256. While the Court previously recognized “some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause,”106Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). the Court narrowed that space.107Espinoza, 140 S. Ct. at 2260-61. Justice Thomas, joined by Justice Gorsuch, while agreeing the Free Exercise Clause requires equal treatment of religion, would actually expand the space between what the Free Exercise Clause requires and what the Establishment Clause prohibits by diminishing the scope of the Establishment Clause.108Id. at 2264 (Thomas, J., joined by Gorsuch, J. concurring)
As to Constitutional Grace, by invalidating the “Blaine Amendments” in various State Constitutions, Espinoza ensures that government treats all religious people with equal dignity. Born in the anti-Catholic bigotry of the late nineteenth century, the Blaine Amendments treated religious organizations differently from similarly situated secular organizations.109Id. at 2267-74 (Alito, J., concurring) The implicit message of the Blaine Amendment was that religious organizations were unwelcome in public life and people of faith, particularly Catholics, were second class citizens to the extent they sought to express faith. Espinoza ends this stain on our constitutional character.
Third, in Our Lady of Guadalupe, the Court expanded Religion Clauses’ “ministerial exception,” first recognized in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C.,110565 U.S. 171, 190 (2012). to include teachers who were not ordained ministers, had no religious training, and who taught secular subjects.111Our Lady of Guadalupe, 140 S. Ct. at 2055 In doing so, the Court noted that a “variety of factors may be important” in determining if the ministerial exception applies.112Id. at 2063. Advancing Constitutional Sovereignty, Our Lady of Guadalupe held that the government must acknowledge a religious organization’s “autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.”113Id. at 2060. “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith,” the First Amendment prohibits “judicial intervention into disputes between the school and the teacher.”114Id. at 2069. While the Court gave significant deference to the religious organization’s judgment, Justice Thomas, joined by Justice Gorsuch, would give absolute deference: “The Religion Clauses require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial.’”115Id. at 2069-70 (Thomas, J., joined by Gorsuch, concurring).
Of course, judicial deference to religious organizations’ determinations about who qualifies for the ministerial exception can lead to abuse. Religious leaders are sinners too. Some argue the Court was incorrect in concluding lay persons who teach secular subjects in a Catholic elementary school qualify for the “ministerial exception.116Charles J. Russo & Allan G. Osborne, Right Test, Wrong Outcome: Avoiding Misuse of the Ministerial Exception in Faith-Based Schools, Canopy Forum (July 2020) (available at https://canopyforum.org/2020/07/22/right-test-wrong-outcome-avoiding-misuse-of-the-ministerial-exception-in-faith-based-schools/ ). As a matter of Catholic doctrine, they may well be right. However, other religious traditions see no distinction between secular and sacred subjects. In his Lectures on Calvinism,117Abraham Kuyper, Lectures on Calvinism (1898). Kuyper insisted Calvinism was not “a narrowly defined set of doctrines or a particular ecclesiology,”118Peter Heslam, Creating a Christian Worldview: Abraham Kuyper’s Lectures on Calvinism 947-48 (1998) (Kindle Edition) but a “life system” with a “root principle” that touched on every aspect of human existence including politics, art, and science.119Bratt, Christian Democrat , supra note 51, at 263. Echoing Kuyper, some Protestant K-12 schools teach “every subject with a goal of discipleship, aiming students to the worldview that God has created and designed all things for His glory.”120Brief of Multiple Private Kentucky Religious Schools as Amici Curiae In Support of Applicants’Emergency Application to Vacate Stay of Preliminary Injunction, Danville Christian Academy, Inc. v. Beshear, No. 20A96 at 4 (U.S. Dec. 4, 2020) (This brief is available on the Supreme Court website at https://www.supremecourt.gov/DocketPDF/20/20A96/162728/20201204165954427_2020.12.03%20DCAvB%20Amici%20Brief%20FINAL.pdf ) Given the right of everyone to choose their religious beliefs and make decisions consistent with those beliefs, the judiciary should defer to any good faith claim.121Our Lady of Guadalupe, 140 S. Ct. at 2069-70 (Thomas, J., joined by Gorsuch, concurring)
Concerning Constitutional Grace, Our Lady of Guadalupe establishes that, through exemptions such as the “ministerial exception,” the government will “forgive” Americans “with a deep faith that requires them to do things passing legislative majorities might find unseemly or uncouth.”122Espinoza, 140 S. Ct. at 2277 (Gorsuch, J. concurring). The Republic is “wide enough”123Lin-Manuel Miranda, The World Was Wide Enough (2015) (penultimate song in the musical Hamilton (2015)). In the song, Burr realizes his mistake in shooting Hamilton and laments he should have “known the world was wide enough for both Hamilton and me.” for everyone — atheist and believer, secular and sacred, clergy and laity, Muslim and Jew, Protestant and Catholic.124For a commentary on the implications of Espinoza and Our Lady of Guadalupe, see Charles J. Russo, William E. Thro & Allan G. Osborne Jr. (2020), Reaffirming the First Freedom: The Implications of Espinoza v. Montana Department of Revenue and Our Lady of Guadalupe School v. Morrissey-Berru, 47 Religion & Education ____ (2020) (available at https://doi.org/10.1080/15507394.2020.1816525 ).
The judiciary is the “least dangerous branch,”125The Federalist No. 78 (Alexander Hamilton). but the Supreme Court’s recent decisions teach “this nation [how to] rise up and live out the true meaning of its creed.”126Martin Luther King, I Have a Dream (1963). Bostock confines statutory interpretation to original public meaning, reaches a result that affirms the dignity of homosexual and transgender Americans, and acknowledges that people of faith may be exempt from its rule. Espinoza recognizes government may not discriminate against religious organizations and, thus, confirms the equal dignity of people of faith. Our Lady of Guadalupe limits the judiciary’s ability to inquire as to who is a minister and ensures that those who dissent from the secular orthodoxy have a home in America.
If “earth and heaven” are to “ring with the harmonies of Liberty,” we must recognize that our theology influences our Constitution and our Constitution informs our theology.127James Weldon Johnson, Lift Every Voice and Sing (1900). Unlike virtually every other nation, America is defined not by race, blood, soil, language, faith, or culture, but by “the belief in the principles of equality and freedom this country stands for.”128Antonin Scalia, What Makes an American in Scalia Speaks: Reflections on Law, Faith, and Life Well Lived 15, 17 (Christopher J. Scalia & Edward Whelan, eds. 2017) Our creed demands all Americans to recognize the Constitution, not the winners of the last election, as sovereign. Under “a government of [the Constitution], and not of men” and women,129Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 163 (1803). the judiciary cannot attempt “to solve every problem or right every wrong in our public life.”130Barrett, supra note 80. Americans “should not expect courts to do so, and courts should not try.”131Id. Our creed requires the grace to recognize every American “is a member of the community too”132Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017). and cannot be “treated as social outcasts or as inferior in dignity and worth.”133Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1727 (2018). Despite our differing views and experiences, every American is “seeking a home where he himself is free.”134Langston Hughes, Let America Be America Again (1935). Our response to our differences must be “malice toward none and charity toward all.”135Abraham Lincoln, Second Inaugural Address (1865). Accepting America’s Constitutional Theology is the only way to ensure that a “Nation conceived in liberty and dedicated to the proposition that all . . . are created equal” can “long endure.”136Abraham Lincoln, Gettysburg Address (1863). ♦
William E. Thro M.A., J.D137Mr. Thro thanks Julie Thro, Shannan Stamper, and an anonymous person for their helpful suggestions and Linda Speakman for her editorial assistance. is General Counsel of the University of Kentucky, former Solicitor General of Virginia, and and recipient of Stetson University’s Kaplin Award for Higher Education Law & Policy Scholarship and the Education Law Association’s McGhehey Award for Education Law. Mr. Thro, who is a Fellow of the National Association of College & University Attorneys and a Distinguished Research Fellow of the National Education Finance Academy, writes in his personal capacity and not on behalf of the University of Kentucky. Although his wife is a retired Presbyterian pastor and former Moderator of a Presbytery, Mr. Thro is, at best, an “armchair theologian.” Any heresies are his alone.
Thro, William E. “America’s Constitutional Theology: Sovereignty and Grace In Bostock, Espinoza, and Our Lady of Guadalupe.” Canopy Forum, February 5, 2021. https://canopyforum.org/2021/02/05/americas-constitutional-theology-sovereignty-and-grace-in-bostock-espinoza-and-our-lady-of-guadalupe/