Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission

Justice Clarence Thomas wrote a concurrence, in which he eschewed the use of any specific test for determining who qualifies as a minister, writing that he would like to "defer to a religious organization's good-faith understanding of who qualifies as a minister".

Justice Samuel Alito wrote a concurring opinion, which Elena Kagan joined, stating that the word "minister" used in the decision should extend to similar titles for other religions such as rabbi for Judaism or imam in Islam.[2]

The Family Research Council expressed support for the decision. In a press release, a spokesperson for the organization stated: "We are pleased that the Supreme Court rejected the Obama administration's profoundly troubling claim of power over churches, and glad to see that the Supreme Court has stayed out of the Lutheran Church's affairs and allowed its internal rules as a body of believers to stand."[5] (While FRC criticized the "Obama Administration", President Obama actually made no comment on the case, which was one the government began under the George W. Bush Administration. However, the Obama Administration, namely the Justice Department, did in fact file an opposition brief[6] that asserted the ministerial exemption should be severely limited). Five days following the decision, Mitt Romney praised the decision saying, "We are very fortunate [to have people] who are willing to stand up for religious tolerance and religious liberty and the First Amendment of this Constitution in this country."[7]

In a January 12, 2012, editorial, the New York Times concluded that the decision gave "sweeping deference to churches" which "does not serve [churches] or society wisely":[8]

Although the court does not provide much guidance on how to proceed in future lawsuits against churches as employers, the ruling has broad sweep. It abandons the court's longtime practice of balancing the interest in the free exercise of religion against important government interests, like protection against workplace bias or retaliation. With a balancing test, courts consider whether a general law, if applied to a religious institution, would inhibit its freedom more broadly than justified, and, in those circumstances, courts could exempt the church. In her brief, Ms. Perich warned that expanding the ministerial exception to include workers like her would allow a religious organization, for example, to retaliate against a teacher for reporting sexual abuse of a student to the government.[8]

In 2014, the Archdiocese of Cincinnati ordered its 2,000 teachers regardless of religion to sign a "detailed morality clause" that critics say focuses on "pelvic issues." The new contracts forbid teachers from living together, having sex outside of marriage, using in-vitro fertilization or surrogacy, exhibiting a gay "lifestyle" or any speech expressing support for these things.[9]

Two cases originating from the United States Court of Appeals for the Ninth Circuit have challenged the applicability of Hossana-Tabor to teachers at religious schools who have ministerial duties but lack the title or training expected for such a position, leading to the Supreme Court case Our Lady of Guadalupe School v. Morrissey-Berru. The July 2020 ruling on those cases relied on Hosanna-Tabor to conclude in favor of the schools against the teachers.[4]

The Obama Administration's case was argued by Leondra Kruger, who at the time worked under Solicitor General Donald Verrilli. In 2022, as a candidate for the Supreme Court, this led to questions about her views on freedom of religion.[10]