Editor's Note: This essay is the fifth in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.
The ministerial exception has, at long last, arrived before the Supreme Court. In Hosanna-Tabor, the Justices will finally consider the controversial doctrine that shields religious organizations from antidiscrimination suits brought by ministerial employees. In part because the exception guards a highly contested border between two fundamental constitutional values—equal protection and religious liberty—it has been the subject of significant discord among circuit courts. Although lower federal courts have recognized and applied some version of the ministerial exception for almost forty years, they have diverged widely on its proper scope and substance. That is, courts have agreed neither on which jobs count as "ministerial," nor on the kinds of claims from which religious employers are "excepted." As this colloquy's other contributors make clear, Hosanna-Tabor seems better positioned to settle the former question than the latter. Nonetheless, I think the case's appearance on the Court's docket gives us occasion to revisit other controverted aspects of the ministerial exception, and that is my intention here.