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 Continue reading