The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Victoria Dorfman, Todd Geremia, Anthony Dick & Kaytlin Roholt Lane (National Review Online), who wrote the law professors' amicus brief (which I was glad to join) in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel; an excerpt:
A religious group's autonomy to choose its key religious personnel is … not confined only to the hiring and firing of religious "leaders." At oral argument, the teachers' lawyer contended that the ministerial exception should cover only those employees who perform leadership roles, but Hosanna-Tabor itself rejected that position: "Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree." And of course, to her students a teacher is a leader, and if she teaches them religion, or leads them in prayer or worship, she is a religious leader.
Instead of focusing on an employee's title, the focus in these cases must be on the functions performed by those who work for religious bodies. As Justice Alito explained in his Hosanna-Tabor concurrence, the First Amendment protects the ability of religious groups to engage in "certain key and other religious ceremonies and rituals, as well as the critical process of communicating the faith." Religious groups must accordingly "be free to choose the personnel who are essential to the performance of these functions." Since Hosanna-Tabor, lower courts have crystalized around the functional approach adopted by Justice Alito's Hosanna-Tabor concurrence. But even before Hosanna-Tabor, lower courts have consistently applied this functional approach for decades.