SCOTUS to Consider Scope of Ministerial Exception

Posted on Categories Religion & Law, U.S. Supreme Court, Wisconsin Supreme Court

When the Wisconsin Supreme Court decided Coulee Catholic Schools v. LIRC, 2009 WI 88 , Professor Esenberg and I both took to this blog to praise Justice Gableman’s majority decision. The decision is undoubtedly the most important religious liberty case in Wisconsin since Jackson v. Benson (1998) and State v. Miller (1996). It concerned the scope of the “ministerial exception” to anti-discrimination employment laws and the status of a teacher in a religious school.

Recently, the U.S. Supreme Court accepted cert in Hosanna-Tabor Lutheran Church & School v. EEOC. The case presents the same basic question as Coulee: does the ministerial exception include “a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship”?  

The case is up on appeal from a Sixth Circuit ruling against the church, and the Becket Fund for Religious Liberty and Doug Laycock from UVA are counsel for the petitioners.

Coulee Catholic Schools features in several of the briefs filed at the cert stage, including the petition, the brief in opposition, and several amici filings. Doubtless it will continue to feature prominently in the briefs and arguments, as the opinion provides a scholarly and recent exposition of the state of the case law (which is a mess – granting cert here was a good idea) and a good case for the test the justices used to determine whether an employee fit the ministerial exception. (It should be noted that Coulee Schools will stand regardless of what SCOTUS decides because it was independently and explicitly decided on state constitutional grounds as well).

In his volume The Wisconsin Constitution: A Reference Guide, Jack Stark relates an anecdote from Wisconsin legal history:

Justice William O. Douglas, speaking in Milwaukee during the revolution in federal constitutional law that the Warren Court caused, responded to an introduction that pointed out that Court’s stalwart protection of individual liberties by remarking, “[w]e are just trying to catch up with the Wisconsin Supreme Court. We are at the point where it was thirty years ago.”

Hopefully in this instance, the U.S. Supreme Court will choose stalwart protection for religious freedom by following the path laid out by the Wisconsin Supreme Court.

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