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certain unalienable rights,” which governments are instituted to secure).
28 See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (rejecting for lack of
standing Establishment Clause challenge to “under God” in Pledge of Allegiance); Newdow
v. Congress of the United States, 383 F. Supp. 2d 1229 (E.D. Cal. 2005) (accepting
Establishment Clause challenge to “under God” in Pledge of Allegiance), on appeal sub
nom., Newdow v. Carey, Nos. 05-17257, 05-17344, 06-15093 (9th Cir.).
29 Watson v. Jones, 13 Wall. 679, 733 (1872).
30 Two recent appellate court decisions applying the ministerial exception, Petruska v.
Gannon University, 462 F.3d 294 (3d Cir. 2006), and Tomic v. Catholic Diocese of Peoria,
442 F.3d 1036 (7th Cir. 2006) (Posner, J.), provide excellent explanations of the exception
and the legal principles underlying it.
31 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952) (“church autonomy doctrine” “a
spirit of freedom for religious organizations, an independence from secular control or
manipulation, in short, power to decide for themselves, free from state interference,
matters of church government as well as those of faith and doctrine”). See also Jones v.
Wolf, 443 U.S. 595, 608 (1979) (court proceedings “involv[ing] considerations of religious
doctrine and polity” unacceptable).
32 See, e.g., Mark E. Chopko, “Stating Claims Against Religious Institutions,” Boston
College Law Review 44 (2003): 1089.
33 See, e.g., McDaniel v. Paty, 435 U.S. 618 (1978) (striking down prohibition on clergy
participation in state constitutional convention); Torcaso v. Watkins, 367 U.S. 488 (1961)
(striking down requirement of religious oath to hold public office).
34 See Employment Div. v. Smith, 494 U.S. 872, 881, 884–85 (1990).
35 See Kiryas Joel v. Grumet, 512 U.S. 687 (1994) (applying Establishment Clause to
strike down public school district designed to accommodate Orthodox Jewish religious
requirements); Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002)
(applying Free Exercise Clause to strike down local government denial of permission to
erect eruv, or ceremonial barrier to facilitate Orthodox Jewish observance of the Sabbath);
Grosz v. City of Miami Beach, 82 F.3d 1005 (11th Cir. 1996) (rejecting Free Exercise
Clause challenge to denial of permission to gather for Orthodox Jewish worship).
36 See, e.g., Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United
States, 136 U.S. 1 (1890) (upholding federal statute dissolving charter of Mormon church
and seizing its property).
37 See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988)
(upholding federal administrative decision to build paved road through land sacred to
Native Americans).
38 The Blaine Amendments are named after Representative James G. Blaine, who as
Speaker of the House of Representatives attempted to pass a constitutional amendment
banning public aid to sectarian institutions. The amendment failed at the national level, but
similar amendments passed in many states.
39 Those 13 states are Alabama, see Ala. Const. amend. 622; Arizona, see Ariz. Rev. Stat.
Ann. §§ 41-1493 et seq. (West 2003); Connecticut, see Conn. Gen. Stat. Ann. § 52-571b
(West 2003); Florida, see Fla. Stat. Ann. §§ 761.01-761.04 (West 2003); Idaho, see Idaho
Code §§ 73-401 et seq. (Supp. 2002); Illinois, see 775 Ill. Comp. Stat. Ann. §§ 35/1-
35/99 (West 2002); Missouri, see V.A.M.S. §§ 1.302 & 1.307 (West 2004); New Mexico,
see N.M. Stat. Ann. §§ 28-22-1 to 28-22-5 (Michie 2002); Oklahoma, see Okla. Stat. Ann.
tit. 51, §251 (West 2003); Pennsylvania, 71 Pa. Cons. Stat. Ann. 2401 et seq.; Rhode

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