We are wise to have a reflexive concern about what realms of thought religious institutions can be sued over; indeed, it's important to be concerned about what anyone can be sued over. That is the second facet of this issue that bears consideration. Religious-liberty advocates argue that religious thought, including that which governs employment practices, should be protected in law. But why should "unprotected" be the default legal position for any subset of human thought, religious or otherwise?
To ask that question is to reopen the whole issue of employment discrimination as a category in law. Political leftists consider the issue settled, but Hosanna-Tabor forces us, in effect, to look at it again, because it threatens to impose a cost we did not originally intend to pay. That unplanned cost is the third facet of the issue.
When the EEOC was created in 1964, Congress didn't intend for an Americans with Disabilities Act signed in 1990—or any other act administered by the EEOC—to be used to limit religious freedom. But the nature of employment-discrimination law has brought it into conflict with religious freedom. The law, as administered, is inherently in conflict with freedom of thought in general. In a mechanical sense, this is not because employment-discrimination law prohibits certain types of thought, but because it allows people and institutions to be sued—very often on an open-ended, experimental basis—for what they may have been thinking. Law that operates on that premise is bound at some point to collide with most if not all kinds of thought, including some that we never intended to put at risk.
This collision with implications and costs has been inevitable with our administration of employment-discrimination law. On October 5, the Obama administration's legal team surprised Justices Antonin Scalia and Elena Kagan by arguing against special protections for religious thought in an employment-discrimination matter. But the team was merely taking the logic of employment-discrimination law to its conclusion. In the view of an entire political faction, America has already accepted the premise that we must deter employment discrimination by expanding the risk to our thoughts from lawsuits and judicial decisions. We are now down to haggling over the price.
Hosanna-Tabor will probably be decided solely on the strength of the First Amendment's protection for religion, without revisiting the assumptions of the last half-century about employment-discrimination law. But the cost of administering the law on the established basis will continue to mount. Religious liberty will come under threat again. If we accept that holding our thoughts at risk is a valid governmental priority, necessary for discouraging discrimination, it will have to.