The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC

20 Lewis & Clark L. Rev. 1265 (2017), in Symposium, Law and Religion in an Increasingly Polarized America

GWU Law School Public Law Research Paper No. 2017-3

GWU Legal Studies Research Paper No. 2017-3

52 Pages Posted: 1 Sep 2016 Last revised: 8 Feb 2017

See all articles by Ira C. Lupu

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

Date Written: 2017

Abstract

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.

Keywords: establishment of religion; religious liberty; employment discrimination; ministerial exception; ecclesiastical questions

Suggested Citation

Lupu, Ira C. and Tuttle, Robert W., The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2017). 20 Lewis & Clark L. Rev. 1265 (2017), in Symposium, Law and Religion in an Increasingly Polarized America, GWU Law School Public Law Research Paper No. 2017-3, GWU Legal Studies Research Paper No. 2017-3, Available at SSRN: https://ssrn.com/abstract=2830169 or http://dx.doi.org/10.2139/ssrn.2830169

Ira C. Lupu (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-7053 (Phone)

Robert W. Tuttle

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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