Yesterday’s Hosanna-Tabor decision by the Supreme Court is widely and rightly celebrated as a great victory for religious freedom. I’m interested in its implications for higher education. Both of the major trade publications covered it, the Chronicle here and InsideHigherEd here. The Council for Christian Colleges and Universities, whose members integrate faith and learning, submitted a brief (accessible here) that argued that all faculty in its institutions should be covered by the ministerial exception:
If the institution’s mission is to integrate faith into all subjects, and it affirmatively requires its teachers to do so, then those teachers will qualify for the ministerial exception. This approach will avoid the entanglement that would result if the court had to decide if a history class taught at a religious college was a secular activity….
This is not to say that all faculty at every college or university with a religious affiliation will qualify as ministerial employees. Many religious colleges view their mission differently and do not seek to in-tegrate faith in such a comprehensive way. Accordingly, the duties of faculty at these institutions may not be ministerial in nature. This Court should therefore develop a test for the ministerial exception that takes into account the stated mission of the religious institution when deciding whether its faculty fall within the scope of the ministerial exception.
Justice Clarence Thomas’ highly deferential approach, offered in his concurrence, would clearly have satisfied CCCU. The Court’s much more fact-dependent opinion would seem to leave room for the kind of inquiry into the particulars of a case that the CCCU wants to avoid.
So, a question to all you professional and amateur constitutional lawyers out there. Can you tell from the Court’s opinion how much integration of faith and learning is enough to establish a ministerial exception for faculty?
I should add that for most (all?) Catholic colleges and universities, only a small proportion of the faculty (those teaching theology) would seem to be covered by the ministerial exception. Am I right about this?