Free Exercise Reconceived: The Logic and Limits of Hosanna-Tabor

Two terms ago, in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court held that the First Amendment precludes ministers from bringing employment-related claims against their churches. In some ways, Hosanna-Tabor changed little. The lower courts had all reached that conclusion already, though the Supreme Court slightly expanded the breadth of the so-called ministerial exception. More important is how Hosanna-Tabor reconceptualized things, especially in how it pushed back somewhat against the Supreme Court’s imperial decision in Employment Division v. Smith, where the Court had broadly held that the Free Exercise Clause did not entitle religious believers to exemptions from generally applicable laws.

Hosanna-Tabor could end up an isolated anomaly, a peculiar concession to the importance of ministers and the intrusiveness of employment discrimination laws, a railroad ticket good for one day and train only. But the Court’s opinion speaks of a broader principle, a principle whose boundaries it consciously puts off defining. And it is striking how so many decisions in the lower courts fall within Hosanna-Tabor’s principle. From employment discrimination law to labor law, from contract to tort, lower courts regularly dismiss all manner of cases in ways incompatible with Smith and for reasons akin to those given in Hosanna-Tabor.

This Article looks at that universe of cases, reflects on some patterns that emerge, and works toward an explanation for what is happening and how courts should handle these issues.