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The federal laws prohibiting employment discrimination are among the most important statutes ever enacted. They constitute the most significant federal commitment to eradication of the unjustified discrimination in the economic sector that has persisted since Reconstruction. The laws nevertheless did not address one significant issue: whether and how anti-discrimination norms should apply to ministers and other religious leaders employed by churches and other religious congregations.

The laws are not wholly silent, to be sure. They allow religious groups to discriminate in favor of members of their own religion when they hire leaders, thus avoiding (what we might hope are) hypothetical absurdities like a Baptist minister who sues because no synagogue will hire him as its rabbi. The laws do not, however, generally exempt churches from statutory sanctions against racial, national-origin, sex, or disability discrimination when they deal in the employment of ministers and other church leaders. By their terms, the federal anti-discrimination laws would prohibit the Roman Catholic Church from discriminating on the basis of sex in filling positions with ordained priests, or the African Methodist Episcopal Church from discriminating on the basis of race in hiring and firing its congregational ministers. ...

Hosanna-Tabor is filled with incongruous stories and doctrinal inconsistencies. First, there are at least three plausible accounts of what happened in Hosanna-Tabor, each of which is in tension with the others. Second, the Court's endorsement of the ministerial exemption as a necessary feature of church autonomy overlooks that churches subvert autonomy as often as they protect it. Third, the exception described by the Court is a strange mixture of rights and structure that is likely to be carved up with exceptions and limitations. And finally, the Court goes to this trouble to protect a conception and practice of institutional religion that are quickly passing away