How Should the Supreme Court Rule on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC?
The Supreme Court recently granted certiorari for Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Should the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, apply to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship? And if so, where should that line defining ministerial exception be drawn?
The hard question is how to craft reasonably clear, usable doctrines that will capture, and give effect to, the basic principle that one dimension of religious freedom is the freedom of religious communities to choose their own ministers.
The Sixth Circuit's opinion in Hosanna-Tabor that the Supreme Court has agreed to review illustrates precisely the need for a robust First Amendment, and why secular courts staffed with judges who are often hostile to religion and religious ideas are unsuited to essentially make hiring decisions for religious schools.
Those defending the church actions in terminating the teacher in the case go the second mile in expanding her minor religious duties to come under a ministerial exemption—where in other cases brought by church organizations seeking government funding these same duties would be minimized to come under the definition of pervasively secular.
With the current make up of the Supreme Court it would appear most likely that they would rule in favor of ministerial exception. But they need to do so in a manner that clearly shows that even the instruction in secular subjects in religious schools is done so with an overt spiritual purpose.