The oral argument at the U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC will be on October 5.
The specific issue is whether a teacher at a religious elementary school should be considered a "ministerial employee." If so, then many employment laws do not apply to her. The courts created the "ministerial exception" to keep government from inappropriately interfering in the internal affairs of churches. Judges agree that employment decisions about clergy have to be generally free from government rules. But what about a teacher as in this case, who teaches a secular curriculum but also is a commissioned minister, teaches religion classes, and leads students in worship and prayer?
Religious hiring by religious organizations--using religion, but not race, age, etc., as a criterion--is protected under federal, state, and local employment laws (but sometimes with restrictions if government funds are involved). That’s a statutory protection, called the "religious exemption." It is different than the "ministerial exception," which was created by judges and imposes fewer restrictions on employment decisions--but applies to a narrower set of employees. But both the religious exemption and the ministerial exception rest on the separation of church and state rightly understood: the government is not authorized to impose all and every rule on the internal affairs of houses of worship and other religious organizations.
There is legitimate debate about how wide the scope of the ministerial exception must be. The US Supreme Court likely will strongly uphold the principle, even if it construes its scope more narrowly than some of the federal appeals courts have done. Shockingly, the Department of Justice, stating to the Court the federal government’s position, denied that there is a ministerial exception, although conceding that some ministerial employment decisions by religious organizations must be protected. That’s more extreme than the ACLU or Americans United for Separation of Church and State. A very disheartening stance.
Source: Institutional Religious Freedom Alliance, September 26, 2011