Friday, February 25, 2011
John Elwood at Volokh discusses two law and religion cases that are scheduled at the Supreme Court's case conference today. It's interesting to me that both involve church autonomy questions -- whether and when the state ought to interfere with matters of church governance and management. The second case, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, would involve the Court in a ministerial exemption issue. The terminated employee, through the EEOC, brought a claim under the Americans With Disabilities Act (according to the petition for cert. filed by Doug Laycock, she claimed in part that she was fired because of her diagnosed narcolepsy -- interesting).
I hope the Court takes Hosanna-Tabor, if only to declare itself on the ministerial exemption. The federal circuits have uniformly accepted the ME, though there is a difference of opinion about its scope. But the Supreme Court hasn't even officially ever recognized the doctrine at all. Arguably, it obliquely acknowedged the ME in NLRB v. Catholic Bishop of Chicago, where it said that "excessive entanglement" concerns necessitated that teachers in parochial schools be exempted from collective bargaining requirements. But it would be good to get a clear statement from the Court on the viability, let alone the reach, of the ME.
ADDENDUM: A knowledgeable commenter points out that the plaintiff is now proceeding only on a retaliation claim and has dropped the discrimination on the basis of disability claim.