The ministerial exception provides that discrimination law does not apply to claims arising out of the employment relationship between religious institutions and their ministerial employees. While the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC suggested that this exception could be waived, others have argued otherwise. The pushback flows from a structural understanding of the Establishment Clause, which holds that the First Amendment creates a structural barrier between the separate sovereigns of church and state. On this understanding, the ministerial exception is simply a recognition of the fact that there are some areas in which the state has no power. But this is an incomplete analysis of waiver.
A complete analysis of waiver has both doctrinal and theoretical consequences. Doctrinally, a viable concept of waiver can change the litigation behavior of parties. Theoretically, waiver exposes a flaw in conceptions of church sovereignty. The commentary fails to fully define what it means to be a sovereign, ignoring the fact that some sovereigns, such as states, can waive their immunity.
This Note seeks to present a comprehensive theory for the waivability of the ministerial exception. This theory confronts the exception on all three of its theoretical footings: as part of the structural restraint imposed by the Establishment Clause, as part of the right to church autonomy extended by the Establishment Clause, and as part of a church’s right to shape its own faith protected by the Free Exercise Clause.