After a quiet stretch in the wake of Employment Division v. Smith (1990), cases about the Free Exercise Clause of the First Amendment are proliferating at the U.S. Supreme Court. Trinity Lutheran Church v. Comer and Masterpiece Cakeshop v. Colorado Civil Rights Commission recently signaled the potential for large changes on the horizon. The school funding dispute in Espinoza v. Montana Dept. of Revenue , a follow on to Trinity Lutheran , is under advisement at the Court, and the recent cert grant in Fulton v. City of Philadelphia sets the stage for what may be next Term’s Free Exercise blockbuster. Far less noticed have been the companion cases from the Ninth Circuit on the scope of the ministerial exception, a doctrine embraced by a unanimous Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012). The doctrine bars employees in positions that fall within the ministerial exception from asserting against their religious employers almost all civil rights claims, along with a variety of tort and contract claims . In Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel , the Ninth Circuit pinched the ministerial exception so as to exclude from the […]
