Today the Supreme Court will hear oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which some are calling the Court's most important religious liberty case in a generation. The case invites the Court to address a question with wide-ranging implications: At what point do anti-discrimination laws unconstitutionally infringe on the right of religious groups to operate in accord with their religious tenets?
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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.
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a discrimination claim by a minister may require courts to evaluate things that courts shouldn't be evaluating, such as a person's fitness for the ministry. ... the Establishment Clause has generally been read as barring excessive government entanglement with religious matters, and deciding whether a would-be minister is more or less qualified than others would indeed likely lead to such excessive entanglement, because ministerial qualifications are an inherently religious matter. Likewise, deciding whether the defendant's explanation for the decision is pretextual similarly requires secular evaluation of which religious decisions are reasonable, something courts generally can't do. "We prayed, and we feel God told us to hire one applicant rather than another" is an argument that's hard for secular courts to reasonably evaluate.
