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.

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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.