ABSTRACT
Free exercise guarantees apply to institutions as well as to individuals. Many of the cases involving the free exercise of religious institutions that have come before the Court involved disputes about church leadership or church property. The Court has made clear that it is beyond the competence of civil courts to resolve ecclesiastical disputes, although civil courts are competent to apply neutral civil laws even if a religious institution is one of the parties in the dispute. That said, the Court has recognized in addition that free exercise guarantees include a ministerial exception, which bars civil courts from deciding who should and who should not lead a religious congregation. The criteria for determining who counts as a minister for constitutional purposes are rather unclear, and the Court recently implied in Hosanna-Tabor that the institutional immunity conferred by the Free Exercise Clause goes far beyond what had previously been understood. Hosanna-Tabor’s suggested approach is neither justifiable in light of the past jurisprudence nor as a matter of public policy, although the actual import of that decision will not be clear until more cases are decided and the jurisprudence develops.
