A Tale of Two Inquiries: The Ministerial Exception After Hosanna-Tabor
40 Pages Posted: 27 Mar 2015 Last revised: 29 Mar 2017
Date Written: February 16, 2015
An understandable clamor occurred following the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which solidified the ministerial exception under the First Amendment. The exception, according to the Court, affords certain religious entities significant institutional autonomy under the Religion Clauses. The decision, short on details regarding the content of the exception, led to much speculation about outcomes in future litigation. This Article is the first attempt at assessing whether the chief criticisms of the decision — its potential breadth and inherent ambiguity — have led to divergent, incoherent, and unjustifiable results. It observes that neither the warnings of the decision’s critics nor the hopes of the decision’s proponents have fully materialized. Rather, the actions of lower courts following Hosanna-Tabor are somewhat predictable; courts have reached divergent conclusions while emphasizing the same parts of the Court’s opinion, and struggled to adequately define both aspects of the exception, namely which entities may invoke it and which employees constitute ministers. This Article ultimately suggests that although the language of Hosanna-Tabor suggests a link, courts are failing to adequately comprehend the connection between those two inquires. As such, the Article proposes a workable analytical framework that links both inquiries and that is faithful to the doctrinal basis for the exception outlined by the Court. It argues that the scope of the definition of minister should correspond to the type of entity that seeks application of the exception. It suggests that who is a minister in a particular context depends on what type of ministry the entity in question engages in, and whether it can be said that the entity, as a whole, is engaging in religious activity when the employee acts. This approach differs from the approaches of many lower courts post-Hosanna-Tabor, which tend to focus on the individual activities of the employee within the institution rather than whether the employee’s activities are institutional in nature.
Keywords: law and religion, first amendment, ministerial exception, title vii, minister, religious organization, employment discrimination, employment law
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