Revisiting Hosanna-Tabor v. E.E.O.C.: The Road Not Taken
Harvard Law School
October 1, 2013
Tulsa Law Review, Vol. 49, 2013, pp. 49-98
The article approaches critically the balancing between freedom of religion and the enforcement of disability anti-discrimination law followed by the Supreme Court in Hosanna-Tabor v. EEOC. Enforcing disability anti-discrimination law is a compelling interest, as it finds a very strong philosophical justification, making thus the result of the case contrary to the philosophical conception of a well-ordered society. Doing away with the social construct of disability is a compelling interest as it is a universalisable interest, an interest upon which there can be an over-lapping consensus independently of a person’s comprehensive, religious or not, vision of the good. Reference to the ministerial exception to justify exempting employers from the disability antiretaliation laws is of doubtful compatibility with Emp’t Div., Dep’t. of Human Resources of Or. v. Smith. Courts can distinguish between a doctrinal and a nondoctrinal issue and abstain from controlling the first while controlling the legality of nondoctrinal issues. If the case of a qualified minister is at stake, whose substantive qualifications the courts cannot control under the First Amendment, then disability anti-discrimination law should be enforced, as it is neutral law of general applicability.
Number of Pages in PDF File: 52
Keywords: First Amendment, Freedom of Religion, Ministerial Exception, Disability Discrimination, Employment Discrimination, Americans with Disabilities Act, Bona Fide Occupational Qualification, Rule of Law, Overlapping Consensus, Political LiberalismAccepted Paper Series
Date posted: September 6, 2013 ; Last revised: November 10, 2013
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