Professor Winnifred Fallers Sullivan has a column on the ministerial exemption here. Mostly it is a summary of Hosanna-Tabor and the background issues, but there is also this:
There are thousands of American laws giving special legal privileges to churches and to ministers. Many of these are extended well beyond the historically established churches to persons and institutions of a variety of religious commitments. When they support the autonomy of religious institutions in the disciplining of their members they tend toward the support of alternative normative orders. While individual conscience under Smith must bow to secular neutral laws of general application, church autonomy laws would require individuals also to bow to ecclesiastical law in a variety of contexts . . . .
The presumption under this exception seems to be that churches must be protected by the state because it is in churches that individual consciences are formed. Most cases under this exception involve schoolteachers. The ministerial exception assures that children will be taught by schoolteachers who are under church discipline and that the church will exercise a public ministry with respect to those children. This is a robust claim for legal pluralism.
While most Americans undoubtedly believe that the government should not tell churches who should exercise religious leadership, arguably it is also the case that most Americans think that ministers are not the last word on what religion and moral formation is about—that the life of religion is not in the rules of established churches but in the faith-filled spiritual life of the people who only occasionally listen to their pastors, rabbis, priests, monks, gurus, or other would-be spiritual leaders—anyway.
It’s certainly true that religious institutions are not the only place in which “moral formation” occurs. It can, of course, also occur in the kind of individualized spiritual seeking that Sullivan highlights and seems to favor in the last paragraph.
But I thought that one of the core ideas supporting the ministerial exemption was that religious institutions — traditionally, “churches” — have a unique role to play in the development of moral traditions independent of the state. They are therefore ideally and specially suited to cultivate loyalties to loci of authority other than the state. Just as the state has its institutional agents, who actively promote its norms and its vision of right, it is the clerics and other institutional actors within these religious organizations which take part in the communal effort to develop alternative claims to moral authority. Sullivan rightly acknowledges this at the end of the second paragraph above.
Yet that makes her third paragraph difficult to understand. For all of her criticisms in the column that the law uses archaic Christian and specifically Protestant concepts and categories to understand the importance of religious autonomy, there is a kind of liberal Protestant theology which colors her discussion of the ways in which “faith-filled spiritual . . . people” happily and regularly ignore “would-be” religious leaders. But it is the participation of those leaders and other actors in the larger “spiritual life” of the religious institutions themselves which, for many, makes the ministerial exemption worth preserving in the first place. — MOD