SCOTUS Blog Discussion on Ministerial Exception

As the national conversation discussion on church autonomy, the ministerial exception, and the Hosanna-Tabor case continues, the SCOTUS Blog has begun a discussion in its new "Community" pages.  My lead-off comment is here.  In it, I reason toward the broad ministerial exception from the proposition that the Catholic Church can't be forced to hire women priests--a proposition seemingly accepted by everyone at oral argument (but not, sadly, by everyone involved in the public discourse on this issue).  I also thought it important to note in conclusion that

several justices were rightly incredulous at the government’s argument that this is simply an expressive association case--that the two Religion Clauses set no special rules for the relationship between a religious organization and the employees who perform its religious functions. Justice Kagan called the argument “amazing”; Justice Scalia, “extraordinary.” The Court should recognize the obvious: there are ways in which religious organizations are constitutionally different. Moreover, the differences are not exhausted by the rule that courts cannot make theological determinations (although that rule is relevant here too). Forcing the Catholic Church to accept women priests might require no such determinations--simply a ruling overriding the Church’s clear tenet. Yet everyone conceded it would be unconstitutional. At bottom, then, religious organizations have a distinct constitutional freedom to be able to determine who is qualified to serve as a minister.