Next week the U.S. Supreme Court will hear argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The case involves the scope of the ministerial exception from federal employment discrimination laws, or so we thought until the Obama administration’s Justice Department filed a brief contending that the ministerial exception ought not exist. The ministerial exception is rooted in the nation’s constitutional commitment to religious liberty, in the form of permitting religious institutions to select their clergy and govern themselves internally free of governmental edicts. See, e.g., Serbian Eastern Orthodox Diocese v. Milivojevic, 426 U.S. 696 (1976). The case involves the discharge of a teacher at a religious school who taught a full secular curriculum, but was also a minister (employed as a “called teacher” — one who has committed to the faith), regularly held prayer and worship services for students, and taught religion classes daily. The Sixth Circuit ruled that the teacher was not a ministerial employee and thus the ministerial exception was inapplicable. The issue presented to the Supreme Court was limited to the scope of the exception, but that has not deterred the DOJ from contending that the exception ought to be junked. The DOJ’s brief is here. In essence the DOJ thinks that the ministerial exception is not constitutionally required or, if it is, it should be limited to people who perform “exclusively religious functions and whose claims concern their entitlement to occupy or retain their ecclesiastical office.”
If the ministerial exception were to be scrapped altogether, the Roman Catholic church could not limit its priesthood to men, the Jewish rabbinate must be opened to women, Islamic clerics could not be limited by sex or ethnicity, and, presumably, non-Catholics could become priests, Anglicans could become rabbis, born-again Christians could become imams, or at least have a legal right to seek the job free of religious discrimination. Perhaps because the DOJ knows, at bottom, that this is nonsense (and contrary to the First Amendment) it offers its fallback position. But even that shrinkage of the ministerial exception would have a profound impact on employment by religious organizations of people — like the teacher at issue in Hosanna-Tabor — who combine secular and religious duties as a profession of the faith. The DOJ brief is an indication of an underlying hostility to religious autonomy on the part of the Obama administration.