Academic journal article The University of Memphis Law Review

The Intersection of CLS and Hosanna-Tabor: The Ministerial Exception Applied to Religious Student Organizations

Academic journal article The University of Memphis Law Review

The Intersection of CLS and Hosanna-Tabor: The Ministerial Exception Applied to Religious Student Organizations

Article excerpt

I. INTRODUCTION.........................................................................142

II. DEVELOPMENT OF THE CONSTITUTIONAL PROVISIONS............146

A. The "Religion-As-Speech" Cases.....................................147

B. Smith 's Limitation on Free Exercise................................153

III. CLS V. MARTINEZ AND HOSANNA-TABOR.................................155

A. CLS...................................................................................157

B. When "Neutrality " Ceased To Be Neutral.......................162

C. Hosanna-Tabor and the Ministerial Exception................164

D. Language in Tension: A Comparison of CLS and HosannaTabor.............................................................................169

IV. WHY THE MINISTERIAL EXCEPTION SHOULD EXTEND TO RELIGIOUS STUDENT ORGANIZATIONS.............................171

A. The Demise of the Marketplace of Ideas..........................172

B. Religion Treated as Religion............................................173

C. Smith Still Applies, But Not Here.....................................175

V. HOW IT WOULD WORK: THE MINISTERIAL EXCEPTION APPLIED TO CLS V. MARTINEZ.........................................................177

A. Religious Organization.....................................................177

B. Minister.............................................................................179

VI. CONCLUSION..........................................................................182

I. INTRODUCTION

"For the moment, it is enough to observe that under the aegis of this new tolerance, no absolutism is permitted, except for the absolute prohibition of absolutism. Tolerance rules, except that there must be no tolerance for those who disagree with this peculiar definition of tolerance."1 This idea of "new tolerance" has taken root in American society and in some of the Supreme Court's most recent rulings on speech and religion. In public universities, "new tolerance" takes the form of nondiscrimination and "all-comers" policies that have barred certain groups from registered student organization (RSO) status.2 Religious student organizations seek to define themselves on historically orthodox religions and creeds, but university all-comers policies often require that the groups either change their views or exist without university recognition. With the rejection of registered status comes not only the denial of facilities and funding for speaking, but also a subtle infringement on a religious group's right to free exercise of religion. While the First Amendment does not automatically afford a religious student group the right to a university's recognition or logo through RSO status, it does protect a religious organization from government interference in its determination of who will propound its message and how it will interpret its own doctrine.3

Christian Legal Society v. Martinez4 illustrates one university's imposition of a radical faith in tolerance upon orthodox religious believers-a faith that trumps the religious group's creeds or constitutions. And although this Note is neither a call-to-arms for the Religious Right nor an apocalyptic scare tactic, 1 do attempt to persuade that universities, which were generally bastions of postmodernism,* * * 4 5 have idolized one worldview over the resttolerance.6 When universities enshrine "new tolerance" above all else, they alienate religious student groups and infringe upon their First Amendment rights. For example, one commentator describes the Christian Legal Society (CLS) Court as essentially holding "that the ideologies of 'diversity,' 'non-discrimination,' and 'noncommitment' trump religious freedom."7 The history of litigation in religious "access" claims, brought primarily as violations of the Free Speech Clause, tells the story of how the Court's equal-access jurisprudence slowly led the CLS Court to decide that nondiscrimination in university settings trumps religious groups' belief and practice on campus. …

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