Act III of the Ministerial Exception

Horwitz, Paul | March 1, 2012

The Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC marks a resounding victory for the principle of church self-governance and the autonomy of religious institutions. But it is just the beginning of the story, not the end. Hosanna-Tabor properly recognizes that a significant measure of church autonomy is a key element part of the American church–state settlement, and may signal a broader recognition of the important role played by nonstate institutions in our social infrastructure. But it does not tell us how churches should behave under such a regime of autonomy, or how those inside and outside the church should respond. This commentary argues that these are the questions we are now obliged to consider. Institutional autonomy imposes responsibilities as well as rights, and churches must ponder when, whether, and how they will use their autonomy. It also imposes a civic duty on citizens to monitor, engage with, and sometimes criticize our central infrastructural nonstate institutions. In short, HosannaTabor raises nonlegal questions that are just as important as the allocation of legal authority between churches and other nonstate institutions and the state.