Brian M. Murray (Staff Attorney, Community Legal Services of Philadelphia) has posted The Elephant in Hosanna-Tabor. The abstract follows.
This article identifies an unarticulated and widely ignored assumption in the Supreme Court’s recent religious liberty decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which grounded the ministerial exception in the Free Exercise Clause. Specifically, the Court’s failure to articulate which organizations can invoke the ministerial exception could undermine the Free Exercise Clause that is the very basis of the exception’s existence. I argue that the Court’s oversight will result in significant future litigation in a post-Employment Division v. Smith world. The Court’s decision in Hosanna-Tabor uses ambiguous and careless language when failing to articulate the assumption mentioned above. Chief Justice Roberts’ majority opinion uses phrases such as “religious body,” “church,” and “religious organization” interchangeably and without explanation. I explain why this is inadequate from an historical, jurisprudential, and practical perspective by highlighting the tradition of recognizing institutional autonomy and the rise of unconventional religious entities, known as “parachurches,” that self-define as religious. These organizations will present the trickiest case studies with respect to the ministerial exception, thereby making future litigation on this issue likely.
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