Religion and Race: The Ministerial Exception Reexamined

Ian Bartrum*

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.

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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.[1]  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.[2]  That is, courts have agreed neither on which jobs count as "ministerial," nor on the kinds of claims from which religious employers are "excepted."[3]  As this colloquy's other contributors make clear, Hosanna-Tabor seems better positioned to settle the former question than the latter.[4]  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.

Religious Freedom, Church–State Separation, and the Ministerial Exception

Thomas C. Berg*; Kimberlee Wood Colby**; Carl H. Esbeck***; Richard W. Garnett****

Editor's Note: This essay is the fourth 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.

[download pdf]

Hosanna-Tabor[1] concerns the separation of church and state, which is an often-misunderstood arrangement that is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution.  For nearly a thousand years, the tradition of Western constitutionalism—the project of protecting political freedom by marking boundaries to the power of government—has been strengthened by the principled commitment to religious liberty and church–state separation.  A community that respects both the importance of, and the distinction between, independent spheres of political and religious authority is one in which the fundamental rights of all are more secure.  A government that acknowledges this distinction acknowledges limits to its own reach.  Such a government, history shows, will more consistently protect and vindicate the liberties of both individuals and institutions.

Act III of the Ministerial Exception

Paul Horwitz^*

Editor's Note: This essay is the third 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.

[download pdf]

Introduction

Law is filled with stories without endings.  Case reports and law review articles generally conclude with the judgment on a case.  Once judgment is rendered, either by a judge or by a scholar analyzing an opinion, it is unusual for anyone to consider what happens next.[1]  In drama, a gun that appears onstage in Act I is sure to go off in Act III: the play has not ended until there is a climax; until the full narrative has reached its conclusion.[2]  In law, the curtain often draws shut abruptly at the end of Act II.