The 'Ministerial' Exception

Last week the Supreme Court heard the argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, in which the Court considered the scope of the 'ministerial' exception. The Ministerial Exception attempts to establish a wall of separation between church and state. The free-exercise and establishment clauses of the First Amendment ostensibly protect churches from government encroachment in church doctrine and order. The question laid before the Court is: how far does the ministerial exception extend? Oyez provides a brief summary of the facts of the case.

In the 1990 Supreme Court case, Employment Division v. Smith, the Court ruled that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even if the use of peyote was a religious ritual. In Smith, Justice Scalia wrote, "all generally, neutrally applicable laws" must be followed-even if they further relatively unimportant government purposes, and even if they suppress an individual's religion entirely. In Hosanna-Tabor, Justice Sonia Sotomayor quickly expressed that what bothers her is the possibility of the ministerial exception being used to deny court scrutiny of “a teacher who reports sexual abuse to the government and is fired because of that reporting.” She adds, grimly, “We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children.” Chief Justice Roberts inquired the meaning and definition of a minister. He added, "what about churches who believe all members of their congregation are ministers?" The EEOC argues and the 6th circuit court of appeals affirmed, that the defendant served a more secular than 'ministerial' role at the school. But what about the Pope? The Pope acts as both a secular/political leader as well as a religious leader. Is the Pope a minister? Where ought the Court draw a line without infringing on religious liberty yet protecting and upholding other civil rights?

Certainly religion cannot escape the rule of law or receive exemption from the violation of basic civil rights. But nor should the government force the Archbishop of the Catholic Church to hire female priests. Justice Elena Kagan noted, "In order to make an argument of the ministerial exception," Kagan said, "you in some sense have to say that institutional autonomy is different from individual conscience; that we have said in Smith that state interests can trump individual conscience. And you want us to say that they can't trump institutional autonomy. So why is that?"

Your thoughts? My opinion is soon to come....