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The United States Supreme Court‘s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court‘s Religion Clause jurisprudence. On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations. The narrow issue at the center of the case is the ministerial exception, a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees. This Essay suggests, however, that the real significance of Hosanna-Tabor goes beyond the Court‘s application of the ministerial exception to the particular facts of the case. This Essay looks at the ministerial exception through the broader prism of the Supreme Court‘s hands-off approach to religious doctrine, which prohibits judicial inquiry into a wide range of questions relating to religious practice and belief.

Although a number of courts have adopted and applied the ministerial exception, both the constitutional basis for this principle and its scope are less than clear. Through a close reading of the opinion of the United States Court of Appeals for the Sixth Circuit, this Essay suggests that the outcome in Hosanna-Tabor turns on an analysis of the ministerial exception within the broader context of a hands-off approach to religion. Indeed, in an opinion written by Judge Richard Posner, the United States Court of Appeals for the Seventh Circuit drew an explicit connection between the two doctrines, referring to the ministerial exception, and the hands-off approach more generally . . . .

Likewise, in looking at Hosanna-Tabor, this Essay aims to explore and relate the constitutional concerns underlying both the ministerial exception and the Supreme Court‘s hands-off approach. Specifically, this Essay argues that the Sixth Circuit opinion is inconsistent with Supreme Court precedent, running afoul of the Court‘s hands-off approach by relying on analysis of either the Free Exercise Clause, the Establishment Clause, or both, that requires judicial interpretation of religious doctrine.

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106 Nw. U. L. Rev. Colloquy 120