Change in the First Amendment landscape tends towards the incremental, but the Supreme Court’s opinion two terms ago in Hosanna-Tabor 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. The suddenness and scale of the shift helps to explain the turmoil that has ensued in the lower courts and law journals. And yet, it could be that the biggest aftershock has yet to be felt. The Court left 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?
The lower federal courts have begun to grapple with the question, but no satisfactory approach exists. Drawing on the historical sources and values animating Hosanna-Tabor and its Religion Clause predecessors, this Article provides a workable framework for distinguishing between those institutions that fall within the scope of the religious institutions category and those that do not. The framework proposed here 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.