Sacred Disputes? On the Ministerial Exception and the Constitution

Mark Strasser, Capital University Law School

Abstract

Federal courts have long been hearing church disputes, for example, concerning conflicting claims regarding the rightful possession and use of church property. However, there is no clear understanding concerning the contours of the constitutional limitations on the courts when one of the parties in interest is a religious organization. The conflicting jurisprudence may be clarified in the 2011-2012 term when the Court hears and decides Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, although there is reason to be pessimistic that this will happen. This article lays out the relevant jurisprudence as presented by the United States Supreme Court on the one hand and as developed in the lower courts on the other, specifically focusing on the application of the “ministerial exception.” The article concludes by suggesting ways that the Court could make the doctrine more reflective of constitutional requirements and more consistent with good public policy.