What is a “Religious Institution”?

Change in the First Amendment landscape tends toward the incremental, but the U.S. Supreme Court’s opinion two terms ago in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC—holding that religious institutions enjoy a range of First Amendment protections that do not extend to other individuals or organizations—is better understood as a jurisprudential earthquake. And yet, it could be that the biggest aftershock has yet to be felt, with the Court leaving open the most important functional question that exists in scenarios where there will be constitutional winners and losers: what, or who, is a “religious institution” for First Amendment purposes? Although lower federal courts have begun to grapple with the question, no satisfactory approach exists. This Article proposes a framework for distinguishing between those institutions that fall within the scope of the religious institutions category and those that do not. The framework proposed proceeds from a purposive analysis that turns on which institutions will most often and most effectively use the newly identified and exclusive protections to benefit society as a whole. To this end, the framework favors institutions that have as their purpose: (1) protection of individual conscience; (2) protection of group rights; and (3) provision of desirable societal structures.