Hosanna-Tabor, the Ministerial Exemption, and Losses of Equality: Constitutional Law and Religious Privilege in the US

Abstract

The US Supreme Court’s Hosanna-Tabor opinion, defining a Constitutionally-rooted “ministerial exemption” of churches from the obligations of anti-discrimination laws, utilized an “absolutist” approach that has been contrasted with the “balancing” approach to the same issue taken by the European Court of Human Rights. Focusing on Hosanna-Tabor, this essay provides analysis of the implications of the case by identifying its location in – and its contribution to – the program of “religious privilege” that has been advanced the Supreme Court during the past 25 years. The essay documents relevant Constitutional case law and statutes; outlines the evolution of the “ministerial exemption;” and, points to losses of individual equality that are being accomplished concurrently with great expansions of “religious liberty” and with abandonment of meaningful “separationism” in the US. Accepting the critique of “absolutism,” the essay suggests, further, that Hosanna-Tabor and other recent work of the Court lack – but that resources extractable from US law of the “religious pluralism” period can provide – conceptual resources useful for protection of individuals’ equality and for minimizing “divisiveness based on religion.”

Keywords: Hosanna-Tabor, US Supreme Court, European Court of Human Rights, ministerial exemption, ministerial exception, Free Exercise clause, Establishment clause, anti-discrimination, equality, privilege, women, pluralism, Religious Freedom Restoration Act, RFRA, Hobby Lobby, Americans with Disabilities Act