Today the Supreme Court will hear oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which some are calling the Court’s most important religious liberty case in a generation. The case invites the Court to address a question with wide-ranging implications: At what point do anti-discrimination laws unconstitutionally infringe on the right of religious groups to operate in accord with their religious tenets?
Under different circumstances, Hosanna-Tabor might have presented a narrow issue of (excuse the expression) parochial interest. Every federal appeals court to rule on the issue has agreed that the Constitution gives religious institutions some degree of autonomy to select their own clergy, notwithstanding federal laws creating a right to sue over sex, race or for that matter religious discrimination. This “ministerial exception,” as it is called, ensures that courts will not order the Catholic Church to ordain women priests, that Reformed denominations will not have to accept Unitarian or Eastern Orthodox believers as clergy, and so forth. At the same time, courts have generally held that the Constitution does not bar lawsuits against religious employers by workers holding jobs with unmistakably secular responsibilities, such as nurses or accountants.
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