Academic journal article Harvard Journal of Law & Public Policy

Neither "Ministerial" nor an "Exception": The Ministerial Exception in Light of Hosanna-Tabor

Academic journal article Harvard Journal of Law & Public Policy

Neither "Ministerial" nor an "Exception": The Ministerial Exception in Light of Hosanna-Tabor

Article excerpt


In January 2012, the Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. (1) In that case, a unanimous Court affirmed the existence of the so-called "ministerial exception" within the First Amendment's religion clauses--a doctrine that had previously been recognized and applied by all courts of appeals to bar wrongful termination suits brought by "ministerial" employees of religious institutions against their religious employers under the various employment-discrimination laws. (2) In short, the Court held that although state and federal employment-discrimination bans generally protect all employees--from Walmart to Wall Street--an "exception" is made for the "ministers" employed by churches, parochial schools, and other religious institutions. Those employees serve at the pleasure of their religious employer, and governments may neither prescribe nor second-guess their hiring or firing.

In spite of--and perhaps even as a result of--the Court's unanimity, Hosanna-Tabor has proven controversial. No one likes to see justice denied, and many scholars believe the ministerial exception does just that. Criticism was swift and varied. Some reflected incredulity; a reluctance to accept the Court's apparent conclusion that the First Amendment says churches get to break the law with impunity. (3) Other objections were measured and specific; taking exception to a seemingly unjustified departure from settled law (4) and mangling of First Amendment doctrine. (5) But, Hosanna-Tabor calls for neither alarm nor a frantic rewriting of constitutional law textbooks. Instead, the ministerial exception is simply one dimension among many of a structural principle long recognized as a central component of our separation of church and state--in full compliance with prior law and entirely explicable under our familiar lines of cases.

This Note argues that the best way to conceptualize the ministerial exception in light of Hosanna-Tabor is as a doctrine that is neither "ministerial" nor an "exception." As the Court held, the ministerial exception's reach extends beyond priests and other traditional "ministers" to cover part-time religion teachers. But more importantly, its application does not provide an "exception" from anything. Hosanna-Tabor did not involve a balancing of interests and a magnanimous accommodation of religion in the form of an exception to a law that, without legislative or judicial grace, would have applied with constitutional authority. Additionally, the case does not represent a conveniently discovered exception to Employment Division v. Smith, (6) the lodestar in Free Exercise jurisprudence regarding neutral rules of general applicability. Instead, Hosanna-Tabor involved the recognition of a jurisdictional boundary, in full compliance with Smith. (7)

After close inspection of the case, this Note concludes that the ministerial exception embodies two distinct structural principles that apply differently depending on the nature of the ministerial dispute before the court. In some cases--where the dispute involves questions entangled with the meaning and weight of religious doctrine--the ministerial exception is a structural bar, denying courts the ability to lend their hands to help answer those questions. (8) In other cases--where the dispute involves no risk of entanglement and the questions presented are entirely secular--the doctrine allows for a phenomenon that this Note terms "cooperative separationalism," meaning essentially a waiver of structural protection by a religious institution, thereby lending its jurisdiction to the state for the purpose of submitting to the application of, and adjudication under, state law. Both principles can be vindicated and enforced given the case-by-case nature of the ministerial exception's application, and both were always intended to survive in the wake of the Employment Division v. Smith sea change.

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