Thursday, July 14, 2011
[Case law on the ministerial exception is an awful mess, both at doctrinal and theoretical levels.] This article begins by suggesting that the ministerial exception is best conceived not as a single indivisible whole, but as the composition of several different discrete immunities. The piece sees the ministerial exception as having three components - a relational component, a conscience component, and an autonomy component - each with different purposes and different justifications. Deconstructing the ministerial exception in this way, the piece then examines the justifications for each of the various components of the ministerial exception, leading to a general and quite pluralistic defense of the thing that courts now call the ministerial exception.
This piece comes at an opportune time. Nearly forty years after the birth of the ministerial exception in the lower courts, the United States Supreme Court has finally agreed to hear its first ministerial exception case this fall. The case is EEOC v. Hosanna-Tabor, and the Court will have to decide both whether the ministerial exception exists and what it covers. After looking at the ministerial exception in general, this piece concludes by offering specific thoughts on the issues presented in Hosanna-Tabor.