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Ministerial exception - the end is coming
June 12, 2006 by Ross Runkel at LawMemo
It's too early to announce the demise of the ministerial exception, but the smell of death is in the air. The US Supreme Court will be the final executioner.
The majority rule - the ministerial exception
Typical facts: A church employs a minister. ("Minister" includes ordained ministers, music directors, and teachers, but not clerks and janitors.) The minister sues the church claiming a violation of Title VII (sex harassment, gender discrimination, race discrimination, retaliation) or a violation of the Age Discrimination in Employment Act (ADEA).
Most courts apply the ministerial exception, resulting in the case being dismissed. They say courts can't touch these cases without running afoul of the religion clauses in the 1st amendment. It does not matter whether the church had a religious basis for making its decision.
This majority rule has been around for decades, and recently got a ringing endorsement from Judge Posner in Tomic v. Catholic Diocese (7th Cir 04/04/2006). He's a smart judge, and I have a lot of respect for his work.
Why the ministerial exception is wrong.
The ministerial exception is supposed to protect the church's freedom of religion and to prevent an establishment of religion, as required by the 1st amendment. However, courts apply the ministerial exception even when the church has not asserted that the case has anything to do with religion. As I've said before (Ministerial exception: putting churches above the law):
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.
Courts going the other direction
A minority of courts are rejecting the ministerial exception. See:
- Ministerial exception limited in Petruska v. Gannon University
- Ministerial exception: putting churches above the law
The final outcome
Courts that follow the ministerial exception will continue the error of their ways. It will take action by the US Supreme Court to put it to an end. I expect that Court (some day) will recognize that the 1st amendment does not give the church a blanket defense, and will construct a more sophisticated solution to reconciling Congress' anti-discrimination statutes with the 1st amendment.
My suggestion is to follow the holding in Petruska v. Gannon University (3rd Cir 05/24/2006) (2-1):
We adopt a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII. In such cases, restricting a church’s freedom to select its ministers would violate the Free Exercise Clause by inhibiting the church’s ability to express its beliefs and put them into practice. Furthermore, questions about religious matters would pervade litigation, entangling courts in ecclesiastical matters and violating the Establishment Clause.
But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulation, a process that would violate the Establishment Clause by entangling courts in religious affairs.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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