Abstract:

The article approaches critically the balancing between freedom of religion and the enforcement of disability antidiscrimination law followed by the Supreme Court in Hosanna-Tabor v. E.E.O.C. Enforcing disability antidiscrimination law is a compelling interest, as it finds a very strong philosophical justification, making thus the result of the case contrary to the philosophical conception of a well-ordered society. Doing away with the social construct of disability is a compelling interest as it is a universalisable interest, an interest upon which there can be an overlapping consensus independently of a person’s comprehensive, religious or not, vision of the good. Reference to the ministerial exception to justify exempting employers from the disability antiretaliation laws is of doubtful compatibility with Employment Division, Dept. of Human Resources of Ore. v. Smith[1]. Courts can distinguish between a doctrinal and a non-doctrinal issue and abstain from controlling the first while controlling the legality of non-doctrinal issues. If the case of a qualified minister is at stake, whose substantive qualifications the Courts cannot control under the First Amendment, then disability antidiscrimination law should be enforced as it is neutral law of general applicability.

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