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.
In Hosanna‐Tabor a fact pattern came up somewhere between these two ends of the continuum. A Michigan teacher who taught a mix of secular and religious topics at a (now‐closed) religious grade school filed suit against the school over alleged retaliation under the Americans with Disabilities Act. The church had designated her particular teaching position (unlike some others) as reserved for persons with a “calling,” and it deemed her not to have such a calling, given her willingness to resort to court action rather than internal church dispute mechanisms. But perhaps the school had erred by reserving the position for persons with a calling. If so, who should decide where to draw the line? The federal Equal Employment Opportunity Commission? A federal court that might be unfamiliar with, or unsympathetic to, church doctrine?
Had the Obama administration sought to sidestep culture‐war politics and buff up its pluralist credentials, it might have urged the high court to read the ministerial exception broadly to include jobs including religious instruction, or at least urge it to decide the case at hand narrowly. Instead, it astonished some onlookers by urging the Court to reconsider the ministerial exception entirely. As Stanford’s Michael McConnell, the academy’s leading religious liberty scholar, put it in a Wall Street Journal op‐ed today: