Narrative Pluralism and Doctrinal Incoherence in Hosanna-Tabor
Frederick Mark Gedicks
Brigham Young University - J. Reuben Clark Law School
September 30, 2012
64 Mercer Law Review 405 (2013)
In Hosanna-Tabor Church and School v. EEOC, the Supreme Court recognized for the first time that the Religion Clauses require a “ministerial exception” to federal antidiscrimination laws, holding that religious congregations have a broad and categorical immunity against government interference in ministerial employment decisions.
Hosanna-Tabor is filled with ironies. The case is as much about unjustified discrimination and administrative inconsistency as religious liberty. The Court’s endorsement of the exception as a feature of church autonomy overlooks that churches subvert autonomy as often as they protect it. The exception described by the Court is so broad, absolute, and inflexible that it is likely to be carved up with exceptions and limitations. And finally, the Court goes to this trouble to protect a conception and practice of religion that are quickly passing from the scene.
Number of Pages in PDF File: 31
Keywords: Employment Division v. Smith, Establishment Clause structure, free exercise rights, Hosanna-Tabor, ministerial exception, religious exemptions, spirituality
Date posted: September 30, 2012 ; Last revised: March 13, 2013
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