Making the Anomalous Even More Anomalous: On Hosanna-Tabor, the Ministerial Exception, and the Constitution

Posted: 30 Oct 2012  

Mark Strasser

Capital University - Law School

Date Written: October 29, 2012

Abstract

In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court held that the First Amendment incorporates the ministerial exception and, further, found that the plaintiff fell within that exception and so could not press her claim. However, courts and commentators hoping for clarification of Religion Clauses jurisprudence more generally or even for a firm constitutional grounding of the ministerial exception may well be disappointed. The Court has raised more questions than it has answered, and has provided such little helpful guidance to the lower courts that Hosanna-Tabor is likely to lead to greater confusion in the lower courts and to greater inconsistency in the judgments issued when religious employees have allegedly been subjected to prohibited discriminatory practices. Further, by mischaracterizing the past jurisprudence, the Hosanna-Tabor Court has muddled what was previously fairly clear, and thus will not only have put a wide range of religious employees at risk but will have made the Religion Clauses jurisprudence more generally even less understandable.

Keywords: ministerial exception, neutral laws, Establishment Clause, Free Exercise Clause, clergy

JEL Classification: K10, J71

Suggested Citation

Strasser, Mark, Making the Anomalous Even More Anomalous: On Hosanna-Tabor, the Ministerial Exception, and the Constitution (October 29, 2012). Virginia Journal of Social Policy and the Law, Vol. 109, pp. 400-49, 2012. Available at SSRN: https://ssrn.com/abstract=2168404

Mark Strasser (Contact Author)

Capital University - Law School ( email )

303 E. Broad St.
Columbus, OH 43215-3200
United States
614-236-6686 (Phone)
614-236-6956 (Fax)

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