Hosanna-Tabor: the Gift that Keeps On Giving Hosanna-Tabor case marked a fundamental shift in First Amendment jurisprudence. Further evidence of that shift came yesterday in an important decision by the federal Fifth Circuit Court of Appeals in Cannata v. Catholic Diocese of Austin

Hosanna-Tabor case marked a fundamental shift in First Amendment jurisprudence. Further evidence of that shift came yesterday in an important decision by the federal Fifth Circuit Court of Appeals in Cannata v. Catholic Diocese of Austin.

By: Eric Rassbach, Deputy General Counsel, The Becket Fund for Religious Liberty

Many prominent First Amendment scholars have said (see Professor McConnell and Professor Laycock’s law review articles) that the Hosanna-Tabor case marked a fundamental shift in First Amendment jurisprudence. Further evidence of that shift came yesterday in an important decision by the federal Fifth Circuit Court of Appeals in New Orleans. In Cannata v. Catholic Diocese of Austin, the Fifth Circuit held that a Catholic parish’s music director could not sue the parish for alleged employment discrimination because of the important role he played in organizing the parish’s weekly masses. Writing for the Court, Judge Dennis adopted the reasoning of Justice Alito’s and Justice Kagan’s concurring opinion in Hosanna-Tabor, stating that civil courts could not interfere with Cannata’s firing because he “played an integral role in the celebration of Mass and that by playing the piano during services, Cannata furthered the mission of the church and helped convey its message to the congregants.” This adoption by the Fifth Circuit of the Alito/Kagan approach represents an adoption of an even stronger form of protection for religious autonomy, and is likely to be adopted other Courts of Appeals as well.

The effects will be wide-ranging. This decision by the Fifth Circuit will not be the last to apply Hosanna-Tabor, and indeed it has already been invoked in the 30-plus HHS mandate lawsuits and other contexts. That means that the case’s aftershocks will continue to be felt for many years to come. And because of the strong stand Hosanna-Tabor took for the freedom of religious organizations to govern their internal affairs, the case looks to be the gift that keeps on giving.