The First Amendment And The Ministerial Exemption: Federal Statutory Mandates

Abstract

On January 11, 2012 the United States Supreme Court ruled in Hosanna Tabor Evangelical Lutheran School v. Equal Opportunity Commission, et al.[1] that the First Amendment free exercise of religion clause requires the recognition of a ministerial exception from the application of the discrimination provisions of the federal Americans with Disabilities Act. Lower federal courts had long recognized such an exemption in federal anti-discrimination statutes, yet the U.S. Supreme Court had never formally done so. The decision of the Court was unanimous, although separate concurring opinions were filed by Justice Thomas and by Justice Alito, who was also joined by Justice Kagan. Thus, in its decision, the Court has mandated immunity for religious organizations from the laws that prohibit discrimination, and retaliation in the workplace. The Hosanna Tabor decision raises issues of how far such a ministerial exemption extends and to what extent it immunizes religious organizations from liability for other types of statutorily prohibited and tortious conduct. There is concern in some sectors that too broad an exemption would immunize religious organizations under numerous neutral, generally applicable laws, such as those governing sexual abuse, unemployment compensation, employer social Security deductions, and sales taxes, all of which have previously been applied to religious organizations.

[1] ____ U.S. ____.