Legal Commentary

Rick beat me to the announcement of today's cert grant in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, onthe scope of the ministerial exemption from federal employment-discrimination laws. Marc first discussed this case a month ago when it was about to be conferenced; it kept getting pushed back until today.

I am intrigued because the case could potentially resolve (or at least address) the proper characterization of the exemption as jurisdictional or substantive/merits based, a subject that was discussed in great detail in Marc's post. The Sixth Circuit treated it as jurisdictional, which I have argued previously (and in a current draft) is wrong. The Court did not grant cert on the jurisdictionality issue. But perhaps the Court will, in the course of deciding whether the action should have been dismissed under the exception (as Rick urges) that dismissal is for lack of subject matter jurisdiction or for a failure of the claim on the merits (as I would urge). The Court did something similar last term in Morrison v. National Australia Bank on the extraterritorial application of the Sherman Act--the majority stopped to quickly and clearly announce the proper characterization of the issue (analysis I discuss here).

The cert grant just forced me to rearrange my summer research agenda.