Leslie G. Griffin (University of Houston Law Center) has posted Ordained Discrimination: The Cases Against the Ministerial Exception.  The abstract follows. – ARH

On October 5, 2011 the Supreme Court will hear oral arguments in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Hosanna-Tabor involves the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Fifth Circuit created the ministerial exception in 1972 when it dismissed Mrs. Billie McClure’s equal pay lawsuit against the Salvation Army. Since then, the federal and state courts have repeatedly expanded the exception to reject lawsuits by elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, and communications managers alleging violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers’ Compensation laws and numerous state tort and contract laws.

Both sides base their arguments upon the Free Exercise Clause, the Establishment Clause, and First Amendment freedom of association. Defenders of the exception argue that religious organizations need the exception to protect their free exercise of religion, that the Establishment Clause prevents courts from getting entangled in religious employment decisions, and that religious employers have expressive association rights to choose their ministers. Opponents of the exception insist that the Free Exercise Clause requires religious employers to obey neutral laws of general applicability, that courts can review employment decisions without entangling themselves in religious issues, and that the right of expressive association is narrower than the ministerial exception.

Instead of beginning with those First Amendment arguments, this essay surveys the field of the forty-year-old ministerial exception in order to identify its numerous weaknesses and demonstrate its superfluity. When the actual decisions are reviewed in detail, it becomes apparent that the numerous justifications for the exception are all a restatement of one foundational argument: that religious groups are entitled to disobey the law. It is that argument that the Court needs to rebut most forcefully when it decides Hosanna-Tabor.

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