For all the attention given to the Supreme Court’s decision in Hosanna-Tabor v. EEOC, there’s been very little attention given to footnote 4 of the decision, which states the following:

A conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits. . . . We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear [the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.

Now for many, this footnote is just a civil procedure issue, which says little about the core law & religion debates addressed in Hosanna-Tabor.  Indeed, Howard Wasserman has a thoughtful piece exploring how this footnote fits within a larger trend of Supreme Court decisions addressing the distinction between jurisdictional bars and merits-based defenses.

But Wasserman’s arguments notwithstanding, I can’t shake the feeling that this footnote says something very important about the relationship between church and state.

For some time, a number of authors have contended that constitutional doctrines such as the ministerial exception functioned as jurisdictional bars; that is, courts lacked the subject-matter jurisdiction to resolve such claims.  As a result, claims like the ministerial exception could not be waived by the parties and courts could raise them on their own.

Such a view could be tied to a number of conceptions of the Establishment Clause.  For example, Ira Lupu and Robert Tuttle have argued that claims such as the ministerial exception flow from an “adjudicative disability” – civil courts simply have “limited jurisprudential competence” to decide such religious matters.  Others such as Gregory Kalscheur have argued that the ministerial exception flows from the limited authority of government and the “penultimacy of the state“: the jurisdiction of civil authority simply does not include the protected sphere of religious institutional life.

Both accounts conceptualized the ministerial exception as jurisdictional.  This meant that parties could not waive the claim – and it is the court that has the ability and responsibility to raise the issue whenever it encounters a claim that threatens to draw it into issues it either lacks the competence to resolve (Lupu & Tuttle) or lacks the authority to resolve (Kalscheur).

But foonote 4 of Hosanna-Tabor would appear to change all that.  Indeed, in a recent 11th Circuit decision, the court affirmed the waiver of the ministerial exception.  And if that’s right, then it means that while Hosanna-Tabor affirmed a protected sphere of church autonomy, it simultaneously envisioned a doctrine that would allow courts to play a role in the resolution of religious disputes over employment matters – at least when the religious institution chooses to waive its constitutional defenses.

In any event, this indicates to me that there is some important conceptual work to be done here in order to provide a theoretical framework that explains this curious footnote 4 in Hosanna-Tabor.  I’m not quite sure what that framework looks like, but like all good footnote 4’s, this one has the potential to change our understanding of an important piece of our constitutional doctrine.

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