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In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Supreme Court held that the First Amendment supports a “ministerial exception” defense in anti-discrimination suits by clergy against their institutional religious employers. In advance of the decision, the outcome seemed unpredictable, and the Court’s unanimity arrived as a shock.

This paper illuminates the result, reasoning, and unanimity in Hosanna-Tabor. We explain how Hosanna-Tabor stands in a long line of decisions, grounded in both the Establishment Clause and the Free Exercise Clause, that prohibit state adjudication of “strictly and purely ecclesiastical" questions.

Part I examines why unanimity on the Supreme Court seemed highly improbable. Other divisions on the Court in Religion Clause cases, the brooding omnipresence of Employment Division v. Smith, and the persistent feminist critique of the ministerial exception all suggested that complete agreement within the Court was unlikely. Part II focuses on the key features of Chief Justice Roberts’ opinion for the Court in Hosanna- Tabor, including the central question of which Religion Clause is doing the primary work. Part III offers our explanation and defense of the exception’s jurisprudential foundation, and shows in detail how the courts – before and after Hosanna-Tabor – have steadfastly maintained that foundation and its relevant boundaries.

Part IV highlights the intense and continued division within the academy on the meaning and correctness of Hosanna-Tabor. Part IV A. analyzes the work of “the Expanders,” who see Hosanna-Tabor as a significant sign that the First Amendment protects a broad freedom of religious entities to resist general regulation. Part IV B. focuses on “the Re-Rationalizers,” who seek to disconnect Hosanna-Tabor from religionspecific norms, and ground the ministerial exception in the freedom of association. Part IV C. turns to “the Dissenters,” who argue that the ministerial exception is not required by the Constitution and is profoundly misguided. Whether designed to build up the decision or tear it down, the scholars’ overstated claims about Hosanna-Tabor may resonate within the culture wars, but have no foundation in the governing law.

GW Paper Series

GWU Law School Public Law Research Paper No. 2017-3; GWU Legal Studies Research Paper No. 2017-3

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