Ministerial exception: putting churches above the law

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Ministerial exception: putting churches above the law
April 04, 2006 by Ross Runkel at LawMemo

Say a church fires an organist for being too old. Or a female minister claims sexual harassment. The "ministerial exception" requires the courts to look the other way. The law can't reach church conduct that would be illegal for any other employer.

Although I don't like this rule, it certainly is the predominate approach taken by the courts. They base it on both the Establishment Clause and the Free Exercise Clause of the 1st amendment of the US Constitution.

Yesterday the 7th Circuit, in a classic decision by Judge Posner, applied the ministerial exception to require the courts to ignore the claim of an ex-organist who claims he was replaced by a younger person in violation of the Age Discrimination in Employment Act (ADEA). Tomic v. Catholic Diocese (7th Cir 04/04/2006).

Employment Law Memo notified its readers about this case on 04/05/2006.

The 2nd Circuit has taken a different view (2-1) in Hankins v. Lyght (2nd Cir 02/16/2006), where the court side-stepped the ministerial exception and sent the case back for the lower court to take a look at the Religious Freedom Restoration Act. Judge Posner had some terrible things to say about that case in the Tomic opinion.

My view:

Courts that apply the ministerial exception are granting the church a blanket "hands-off" rule that makes no distinction between whether the church's actions are religiously based or not. Makes no sense. If the church has a religious reason for its action, then it should be shielded by the Free Exercise clause. When the claim is something like sex harassment, and that has no grounding in the religion, then there should be no free exercise problem. I see little force in the Establishment clause in these cases because there is no more entanglement than there would be in an ordinary assault-and-battery case.

I'm encouraged by cases such as Elvig v. Calvin Presbyterian Church (9th Cir 07/23/2004), holding that a church minister could state a claim for sexual harassment.

For an excellent discussion of all this, I recommend Dolquist v. Heartland Presbytery (D. Kans. 10/28/2004). The judge surveys the field, and then concludes that a church pastor can state a claim under Title VII for sexual harassment and retaliation.