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Hastings Constitutional Law Quarterly

Authors

Mark W. Cordes

Abstract

The Supreme Court's recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, in which it recognized a "ministerial exception" under the Religion Clauses to antidiscrimination laws, marks an important, though limited, development in protecting religious rights. Prior to Hosanna-Tabor, the Court had increasingly resorted to a neutrality paradigm in resolving religion issues under the First Amendment. Although the focus on neutrality frequently protected religious interests, particularly under the Free Speech and Establishment Clauses, it also failed to accommodate religious interests when they were burdened under neutral laws. As such, religious interests were increasingly vulnerable to government interference from general laws, even if the laws potentially interfered with core beliefs and missions.

In Hosanna-Tabor, however, the Court essentially found that the Religion Clauses create a sphere of autonomy for religious organizations in which they are free from government interference, even from neutral laws. This does not insulate religious organizations from all government regulation, but does give them autonomy over issues that relate to doctrine, faith, and mission. Although the Court in Hosanna-Tabor was careful to limit its holding to the immediate facts of the case, the underlying concerns that religious organizations be free of government interference over matters of faith, doctrine and mission suggest a more expansive understanding of what the autonomy interest might include. In this respect, courts should apply a functional approach to the ministerial exception itself, applying it to any employee who has significant responsibilities relevant to a religious organization's faith and mission. Moreover, the exception should also include lay leaders of religious organizations and membership issues, since both impact faith and mission.

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