Leslie C. Griffin (University of Houston Law Center) has posted The Sins of Hosanna-Tabor.  The abstract follows.

The Supreme Court has lost sight of individual religious freedom. In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court for the first time recognized 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 Court ruled unanimously that Cheryl Perich, an elementary school teacher who was fired after she tried to return to school from disabilities leave, could not pursue an antidiscrimination lawsuit against her employer.

This essay criticizes Hosanna-Tabor as a profound misinterpretation of the First Amendment. The Court mistakenly protected religious institutions’ religious freedom at the expense of their religious employees. Religious employees have been subjected to disabilities discrimination, sexual harassment, unequal pay, hostile work environments, age discrimination, pregnancy discrimination, gender discrimination, race discrimination, assault, retaliation, national origin discrimination, tortious interference with contract, blacklisting, intentional and negligent infliction of emotional distress and breach of contract. Instead of having a day in court to win or lose their cases, they have been barred from litigation by the ministerial exception, a rule that always grants victory to the employer.

This essay explains the flaws in Hosanna-Tabor’s reasoning and questions its presupposition that religious institutions are constitutionally entitled to disobey the law. It defends a neutral interpretation of the First Amendment over the Court’s favoritism toward religion and explains how the antidiscrimination laws can and should be applied to religious organizations.

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