*Hosanna-Tabor* is not a run-of-the-mill "ministerial exception" case; and because of that, it raises a question that I was hoping others on the list could address.
The much more common type of ME case, with which we're all familiar, involves a dispute about *whether* the church or organization in question violated a statutory antidiscrimination norm. For example, (i) the church purports to *comply* with the prohibition against discrimination on the basis of sex or disability; (ii) the church claims that its employment decision was *not* based on the proscribed consideration but was instead based on permissible, often religiously-evaluated, considerations; and (iii) the plaintiff asserts that no, in fact the asserted neutral reasons are pretextual, and that the church actually acted on the basis of the prohibited consideration, such as sex or disability. In such cases, the court's basic function is to determine whether the prohibited consideration motivated the action -- a question that might (or might not) entangle the court in evaluations of religious doctrine or assessment of religious cosniderations. Such cases can raise difficult questions: Perhaps they call for some form of ministerial exception; perhaps not. At the very least, some such cases likely require the court to accept the defendant's view of certain religious assessments: As the SG puts it, in such cases "the district court could limit the pretext inquiry to cordon off challenges to the religious organization's religious assessment." (Pages 38-41 of the SG brief have a nice discussion of such issues.) But *Hosanna-Tabor* is not one of those sorts of cases. It is, instead, the more unusual case where the defendant *acknowledges* that it acted in violation of the antidiscrimination norm -- the school fired Perich for threatening to file an ADA claim, something the retaliation provision of the ADA itself plainly forbids -- and asserts that it should be able to do so for religious reasons, namely, because it asserts the existence of a religious tenet that called teachers must resolve such ADA claims internally, rather than involving civil authorities. (I have some questions about whether the Synod's rules truly require ADA claims to be resolved internally, but that's for another post -- I assume, as do the respondents, that the court here would accept that representation of religious doctrine as accurate.) This sort of case is also familiar to us, because it has the structure of a claim for exemption from a generally applicable rule where that rule conflicts with religious tenets. Such claims were once raised under * Sherbert/Yoder* and are now raised regularly under RFRA. Hosanna-Tabor could have asserted a RFRA defense to the EEOC's claim. If it had, and if it demonstrated that the ADA retaliation provision imposed a substantial burden on its religious exercise in this case, then it would be entitled to an exemption as a matter of statutory right unless the government could show that denial of such an exemption were the least restrictive means of furthering a compelling governmental interest. Similarly, under *Boy Scouts v. Dale*, the school would be entitled to an exemption as a matter of First Amendment law if it could show that application of the ADA rule here would affect in a significant way its ability to advocate its viewpoint, and if that interest were not overridden by a compelling governmental interest. So here's my question: If the school cannot (or chooses not to) demonstrate that the ADA would substantially burden its exercise of religion as applied to the Perich case, or that it would significantly affect its ability to advocate its viewpoint about internal dispute resolution -- or if it made such a showing but a compelling state interest in preserving the ADA anti-retaliation rule overrode that impact on religious exercise or expression of viewpoint -- why should the school nevertheless be entitled to violate the ADA? That is to say: Why aren't RFRA and *Dale* sufficient in such a case such as thus to account for all religious liberty and associational expression concerns?
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