Defining Religion Down: Hosanna-Tabor, Martinez, and the U.S. Supreme Court

16 Pages Posted: 28 Aug 2012 Last revised: 28 Feb 2013

See all articles by Carl H. Esbeck

Carl H. Esbeck

University of Missouri School of Law


While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private.

CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech not acts. Requiring members to sign a statement of faith was an act, but an act professing religious beliefs. The Court thought that of no concern because Hastings was permitted to exclude CLS because of its acts so long as Hastings' purpose was unrelated to the suppression of CLS's beliefs.

That rationale works only if the definition of religion permits the Court's hermetic separation between beliefs that are religious and acts that profess the religion. The nature of religion, however, is to integrate doctrine and practice. If protected religion is confined to passive belief, such is a privatized religion.

Hosanna-Tabor v. EEOC involved a teacher suing her church-based school alleging retaliation for a complaint under Americans with Disability Act (ADA). The church raised the ministerial exception, which recognizes that religious organizations are free to fire ministers. The Court concluded that the teacher was a minister, thus the exception applied. But Hosanna-Tabor is of interest to this Essay for a different reason.

Hosanna-Tabor had to distinguish Employ. Div. v. Smith. Smith held that there is no free exercise violation where a law is generally applicable and neutral as to religion. The ADA was a neutral law of general applicability. But the Court said Hosanna-Tabor involved an internal church decision that implicates the faith and mission of the church itself. Thus Hosanna-Tabor carves out an exception to Smith. Although involving more situations than a church firing its minister, free-exercise protection extends only to an internal decision affecting the church itself. This limits fully protected religion to internal decisions made in relative privacy by those who govern the church.

This paring down of religion safeguarded by the first amendment is also at work in the ongoing dispute over employer-provided health insurance plans that must cover the full range of contraception, including abortifacients. The mandated coverage has made conscientious objectors of hundreds of religious organizations. The Executive Branch's response was a definition of religion that accommodates only churches. Religious charities, medical facilities, and colleges remain exposed.

This survey suggests resurgence of the privatization of religious faith because religion harbors illiberal ideas.

Keywords: religious liberty, definition of religion, religious speech, religious exemption, ministerial exception, church autonomy, religion, Hosanna-Tabor, Martinez, free speech, free exercise

Suggested Citation

Esbeck, Carl H., Defining Religion Down: Hosanna-Tabor, Martinez, and the U.S. Supreme Court. 11 First Amendment Law Review 1 (2012), University of Missouri School of Law Legal Studies Research Paper No. 2012-28, Available at SSRN:

Carl H. Esbeck (Contact Author)

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