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Brigham Young University Prelaw Review

Keywords

ministerial exception, good faith, Justice Thomas concurring opinion Hosanna-Tabor, Justice Thomas concurring opinion Our Lady Guadalupe, religious institutional sincerity, good faith in First Amendment, religious autonomy, Hosanna-Tabor, Our Lady Guadalupe, McClure vs Salvation Army

Abstract

Following the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, lower courts, in attempting to adhere to the ruling, have largely disregarded the Court’s explicit instruction to avoid adopting a “rigid formula” for determining ministerial status. Instead, they have repeatedly relied on the factors identified in that decision as a functional test. When the Court revisited the ministerial exception, it reaffirmed that no definitive legal standard governs the designation of a “minister,” while modestly broadening the doctrine by emphasizing that formal titles are less significant than functional considerations. This Comment argues that the lower courts’ application of the ministerial exception has produced outcomes that undermine the very constitutional protections it was designed to safeguard, namely those embodied in the Free Exercise Clause and the Establishment Clause. It further examines Justice Clarence Thomas’s proposed good-faith approach, arguing that deference to a religious institution’s sincere self-definition, when subject to judicial review for good faith, more faithfully aligns with constitutional principles and avoids the doctrinal and practical pitfalls of the current framework.

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