Here is the text of the decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The decision in favor of Hosanna-Tabor was 9-0, in a majority opinion authored by Chief Justice Roberts and with concurrences by Justice Thomas and Justice Alito (joined by Justice Kagan).
More in a bit after I’ve read the decision.
Ian Batrum has posted Religion and Race: The Ministerial Exception Reexamined. The abstract follows. — MLM
This essay is a contribution to the Northwestern University Law Review’s colloquy on the ministerial exception, convened following the Supreme Court’s decision to hear arguments in Hosanna-Tabor v. EEOC. I take the opportunity to consider the (sometimes) competing constitutional values of racial equality and religious freedom. I offer historical, ethical, and doctrinal arguments for the position that race must trump religion as a constitutional value when the two come into conflict. With this in mind, I suggest that the ministerial exception should not shield religious employers from anti discrimination suits brought on the basis of race.
(UPDATE: A video of the panel discussion, “Religious and Secular Law,” can be viewed in the player below. This post was originally posted on October 11, 2011 – ARH)
I just participated in Forum 2000’s final law-and-religion panel, “Religious and Secular Law.” The panel was chaired by Anna Teresa Arco, the Chief Feature Writer for the Catholic Herald, who opened the panel with an erudite introduction to the topic. In my remarks, I argued that the relationship between secular and religious law will be a crucial issue in the years ahead. Religion is resurging around the world, and there will likely be many occasions of conflict between secular and religious law. I discussed two doctrinal examples from the United States: the ministerial exception, currently before the Court in Hosanna-Tabor, and restrictions on religious practice under Employment Division v. Smith. Czech Judge Ivana Hrdličková followed with a discussion of the interaction between Islamic and secular law in Europe, especially with regard to family law. Professor Luboš Krobáček, a scholar of Islamic civilization at Charles University in Prague, closed the panel with an overview of the different schools of Islamic law. – MLM
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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
For those who may be interested, here is the transcript of the oral argument in H-T. After the jump, some thoughts and/or questions.
Mike McConnell has a great piece in today’s Wall Street Journal on the ministerial exception, the subject of today’s argument in Hosanna-Tabor. Among other things, McConnell notes that, shockingly, the Obama Administration has filed an amicus brief opposing the exception in principle. I say “shockingly” because, at one point, anyway, the Obama Administration was trying assiduously to close the so-called “God gap” in American politics by reaching out to religious-values voters. But religious-values voters, including religious-values voters inclined to vote Democratic, believe, correctly, that the ministerial exception protects important constitutional values. In fact, McConnell has filed an amicus brief supporting the ministerial exception on behalf of a number of mainline Protestant denominations, including the United Methodists, the United Church of Christ, and the Presbyterian Church (USA), all of which skew left in American political terms. — MLM
I was pleased to take part last night in an event at St. John’s Law School dealing with the ministerial exemption and the Hosanna-Tabor case. The case and the doctrine have been discussed a good deal already, but for those who can’t get enough, here are some additional scattered thoughts.
1. A perhaps somewhat pedantic point about names first. I prefer “ministerial exemption” to “ministerial exception.” From what I have seen in the briefing of the case, I am in the great minority. My reasons are historical and linguistic. The historical reason is that the doctrine of the ministerial exemption first arose in American law in the McClure case out of the Fifth Circuit in 1972, and was in some measure a reaction to the 1964 Civil Rights Act. At that point, the free exercise approach in operation was the substantial burden/compelling interest test announced in the 1963 case, Sherbert v. Verner. The idea was that “exemptions” from generally applicable laws are constitutionally required in certain circumstances, and the ministerial “exemption” was part of the general doctrinal geist. Read more
Tonight at St. John’s, CLR co-sponsored a panel on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, scheduled for oral argument tomorrow at
the Supreme Court. The case concerns whether a teacher at a religious school, who was also an ordained minister and performed several religious functions, can sue the school for unjust termination and retaliation under the terms of the Americans With Disabilities Act. After Dean Michael Simons (right) opened the conference, Professor Marc DeGirolami gave historical background on the origins of church-state independence and the ministerial exemption. Professor DeGirolami (below) explained that the ministerial exemption is intended to safeguard 
religious autonomy as well as several other values of religious liberty, but that important state values compete against these interests. Professor Mark Movsesian addressed the underlying policies of the ministerial exemption, including the protection of religious worship as a communal activity and the need for institutions that can offset state power. Professor David Gregory, Director of the St. John’s Center for Labor and Employment Law, addressed the issue in the employment law context. And Peter J. Johnson, Jr., President of Leahey & Johnson, P.C., discussed whether the decision to hire and fire church employees should be made by the state or left to religious institutions. –JKH & YAH
Just a reminder that if you are around today at 5:30, please swing by the atrium, where CLR and the Catholic Law Student Society at St. John’s University School of Law will co-host an event devoted to Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which is on for oral argument tomorrow.
I will be talking about the idea of church-state “independence” and the ways in which this might or might not be the same as church-state separation, as well as the case itself and the doctrine of the ministerial exemption (I prefer exemption to exception — exemption evoking what I consider to be the preferable free exercise jurisprudence pre-Smith, of which the ME forms a natural part). There will then be a period of questions, discussants to include my colleagues David Gregory and Mark Movsesian as well as Mr. Peter J. Johnson, Jr., president of Leahy & Johnson, P.C.
After the event, I’ll post some thoughts here. — MOD
Leslie G. Griffin (University of Houston Law Center) has posted Ordained Discrimination: The Cases Against the Ministerial Exception. The abstract follows. – ARH
On October 5, 2011 the Supreme Court will hear oral arguments in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Hosanna-Tabor involves 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 Fifth Circuit created the ministerial exception in 1972 when it dismissed Mrs. Billie McClure’s equal pay lawsuit against the Salvation Army. Since then, the federal and state courts have repeatedly expanded the exception to reject lawsuits by elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, and communications managers alleging violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers’ Compensation laws and numerous state tort and contract laws.