Internal Church Disputes 

One of the persistent themes in law and religion is the extent to which the state can and should interfere with the internal affairs of the church. On the one hand, government meddling with church authority or doctrine would be one of the more egregious breaches of both free exercise and establishment. On the other hand, churches do not have absolute autonomy from government oversight: they must comply with myriad regulations, their premises can be investigated for evidence of crimes, and they can be subjected to certain kinds of lawsuits. The challenge lies in striking a workable balance between these two poles.

Today’s class takes us to the ministerial exception, formally recognized by the Supreme Court’s 2012 decision in Hosanna-Tabor v. EEOC. That case drew upon a line of cases commonly referred to as the “church autonomy” cases: Watson v. Jones, 13 Wall. 679 (1872), Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116 (1952), and (though not cited in the Hosanna-Tabor opinion) Jones v. Wolf, 443 U.S. 595 (1979). Watson introduced a standard of deference to ecclesial bodies in resolving intra-religious disputes. Jones shifted the framework to one of neutral principles:  instead of deferring, the Court looked at whether a religious institution resolved its internal disputes according to ordinary contract (or other) principles.

The cases preceding Hosanna-Tabor sometimes distinguished between hierarchical and congregational forms of church governance. Hierarchical religious organizations defer to a centralized authority: think of Catholics. Congregational religious organizations focus on the independence of individual churches: think of Baptists. Generally speaking, courts were more deferential to the internal rules of hierarchical religious organizations. A rare exception took place here in St. Louis, when a breakaway Catholic parish won its claim against the Archdiocese of St. Louis. Winston Calvert, a WashU Law graduate, represented the breakaway church.

The cases you will read today address the limits of and protections for internal church affairs in the context of defining who is a “minister” within a particular faith group. Do these cases mean that religious organizations unfairly escape the nondiscrimination requirements imposed on non-religious organizations? Or does the ministerial exception simply protect the founders’ goal of keeping the government out of realm of defining religious practice? If religious organizations were not able to define who are their “ministers,” would the Catholic Church and the local mosque be required to have female clergy? If religious organizations are allowed to define their ministers, how does that apply to organizations that consider every member or congregant to be a minister? 

Finally, think about to whom the First Amendment guarantee of the right to free exercise applies. Is it meant to be an individual right, held by each of us personally? Does it also apply to religious houses of worship? Does it extend further to other religious organizations, like schools or charities? Does it ever apply to non-religious organizations? 


Reading Assignment:

  • Hosanna-Tabor v. EEOC, 132 S.Ct. 694 (2012)

  • Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020)

    Questions after the Reading:

The precise scope of the ministerial exception still needs to be worked out. After Morrissey-Berru, would the ministerial exception apply to:

  • A math teacher who is told to teach something about Judaism for 10 minutes a week?

  • A math teacher who is told to begin every class leading the Shema, a prayer that takes about 20 seconds to say?

  • A math teacher who is told to embody Jewish values and infuse instruction with Jewish values?

  • A coach at an evangelical Christian school who prays with his players before games and who leads weekly devotionals?

  • A nurse at a Catholic hospital who prays with sick patients and is told otherwise to tend to their religious needs?

  • A communications staffer who prepares press releases for a religious institution?

  • A counselor at a church-affiliated rehab clinic who urges his patients to reconnect with their faith community?

  • An employee at a soup kitchen who distributes religious literature and leads prayer before meals?

  • A church organist who provides musical accompaniment and selects hymns for services?

  • A cook who’s not Jewish but who prepares kosher-compliant meals for children at a Jewish school?

(Most of these come from hypotheticals Justice Kagan raised during the oral argument in Morrissey-Berru.)

Optional Reading:

Just for Fun:

Someone thought it would be helpful to synchronize the audio from certain Supreme Court oral arguments with talking dogs.