Religious Associations: Hosanna-Tabor and the Instrumental Value of Religious Groups

44 Pages Posted: 27 Nov 2013 Last revised: 20 Dec 2014

See all articles by Ashutosh Avinash Bhagwat

Ashutosh Avinash Bhagwat

University of California, Davis - School of Law

Date Written: December 19, 2014


In its 2012 decision in Hosanna-Tabor Evangelical Church & Sch. V. EEOC, the Supreme Court held that the Religion Clauses of the First Amendment require recognition of a “ministerial exception” to general antidiscrimination statutes (in that case, the ADA), because religious institutions must have autonomy in selecting their ministers. In the course of its analysis, however, the Court made a very interesting move. In response to the government’s argument that the case could be resolved under the general First Amendment right of association, the Court responded that this position was “untenable,” and indeed “remarkable,” because the very existence of the Religion Clauses indicated that religious groups must be treated differently from secular groups. It also rejected the view that its groundbreaking decision in Employment Division v. Smith, which interpreted the Free Exercise Clause extremely narrowly, precluded reliance on the Religion Clauses here, curtly distinguishing Smith on the grounds that it did not involve “government interference with an internal church decision that affects the faith and mission of the church itself.” Hosanna-Tabor thus appears to stand for the propositions that religious groups are different from secular groups for constitutional purposes and entitled to extra constitutional protections, and further, that religious institutions such as churches possess broader Free Exercise rights than do individuals. In this article, I argue both these propositions are indefensible in light of the text, history, and purposes of the Religion Clauses. I further argue that granting religious institutions special constitutional rights raises some very difficult, ultimately irresolvable boundary problems regarding the scope of the ministerial exception.

Ultimately, I conclude that a much better analytic course for the Court to have followed in Hosanna-Tabor would have been to rely on the freedoms of association and Assembly protected by the First Amendment, which the Court so casually rejected. The effect of relying on Assembly and association would be to grant all groups whose activities are relevant to democratic politics a right of autonomy, including a right to select its members and leaders. Religious groups would certainly qualify for such a right (thus affirming the result in Hosanna-Tabor), but so would many secular groups on the same terms. I discuss the ways in which this vision of associational rights fits well with the overall structure of the First Amendment, and with the instrumental role that religious groups (as opposed to individuals) play in our society. Relying on Assembly and association also avoids the boundary problems raised by the ministerial exception, and defuses the tension with free-speech doctrine created by the Court’s preferential treatment of religious groups in Hosanna-Tabor. I conclude by exploring the ways in which the existence of the Religion Clauses may be relevant to religious groups’ Assembly/associational rights, even if they are not the source of those rights.

Keywords: Religion Clauses, Establishment Clause, Free Exercise Clause, ministerial exception, Freedom of Assembly, freedom of association, First Amendment

Suggested Citation

Bhagwat, Ashutosh A., Religious Associations: Hosanna-Tabor and the Instrumental Value of Religious Groups (December 19, 2014). 92 Wash. U. L. Rev. 73, Available at SSRN: or

Ashutosh A. Bhagwat (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States
(530) 752-8687 (Phone)

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