Millstones and Ministry: Generational Transmission As the Unifying Factor in Ministerial Exception Jurisprudence for Teachers Post-Hosanna-Tabor

Abstract

The Ninth Circuit created a circuit split in June 2019 when it denied a petition for a rehearing en banc of Biel v. St. James Sch., 911 F.3d 603 (9th Cir. 2018). The Seventh Circuit and the Ninth Circuit now have produced discordant holdings on how to apply Hosanna-Tabor to teachers at religious schools, raising the question of whether Biel will find its way back to the Court. In the seven years since that landmark religious freedom decision, the majority of lower courts have held that a teacher’s religious functions at a religious school are sufficient to make that teacher a minister, following the words of Justices Roberts and Alito in Hosanna-Tabor. This emerging consensus holds that (1) religious schools should be free to determine what teachers give religious instruction to the younger generation in the faith, and (2) religious schools should be free to determine what constitutes that religious instruction. Using when applicable the four factors utilized by the Court in Hosanna-Tabor, lower courts have engaged in a totality-of-the-circumstances test, giving special weight to a teacher’s religious function at a school in transmitting the faith to the next generation. But, the consensus is by no means unanimous. One state court and the Ninth Circuit have forged their own path. The Ninth Circuit’s creation of a function-plus-one test flouts the consensus practiced by the other courts and used by the Seventh Circuit. The Ninth Circuit’s actions have now led to a circuit split.