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The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC


Caroline Mala Corbin


University of Miami School of Law

September 29, 2011

Northwestern University Law Review Colloquy, Vol. 106, No. 96, 2011

Abstract:     
The question presented in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is whether or not a school teacher named Cheryl Perich should be considered a minister. The success of Perich’s Americans with Disabilities Act retaliation claim turns on the answer. If she is not a minister, she would probably win. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.

In fact, neither the Free Exercise Clause nor the Establishment Clause necessitates the ministerial exception. To start, as announced in Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the Americans with Disabilities Act is a neutral law of general applicability. Arguments that the “church autonomy” cases require courts to defer to church hierarchy and that these cases control instead of Smith ignore Jones v. Wolf, the last church property dispute decided by the Supreme Court. Jones v. Wolf explicitly rejects blanket deference to religious institutions in matters of internal governance. It further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether Perich is a minister will entangle courts in religious doctrine more than simply adjudicating her retaliation claim.

Number of Pages in PDF File: 15

Keywords: Hosanna-Tabor, ministerial exception, ministerial exemption, establishment clause, free exercise clause, church autonomy, employment discrimination, disability

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Date posted: October 1, 2011 ; Last revised: November 10, 2011

Suggested Citation

Corbin, Caroline Mala, The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (September 29, 2011). Northwestern University Law Review Colloquy, Vol. 106, No. 96, 2011. Available at SSRN: http://ssrn.com/abstract=1935604

Contact Information

Caroline Mala Corbin (Contact Author)
University of Miami School of Law ( email )
1311 Miller Drive
Coral Gables, FL 33146
United States
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