Corbin on The Ministerial Exception, Part I
Professor Caroline Mala Corbin has kindly agreed to shed light on the ministerial exception raised by an upcoming Supreme Court case. She brings significant expertise to the issue: see her excellent Fordham Law Review article Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law. Her insights will appear in three parts; the first appears below. Our readers know Professor Corbin from her enlightening guest visit, and we are grateful to her for sharing her thoughts with us.
Earlier this week, the Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case involving the ministerial exception (also known as the ministerial exemption). In this blog, I thought I would answer some basic questions about the ministerial exemption. In later blogs, I want to suggest that the religion clauses don’t really justify it, and that furthermore, application of the ministerial exception can cause more Establishment Clause problems than resolution of a discrimination claim.
What is the ministerial exception?
The ministerial exception is a judicially-created doctrine that grants religious employers immunity from discrimination claims brought by their ministers. While anti-discrimination laws like Title VII and the Americans with Disabilities Act allow religious employers to discriminate on the basis of religion in employment decisions, these statutes make it illegal for religious employers to discriminate on the basis of race, sex (Title VII), or disability (ADA). In other words, under these statutes, a Lutheran school may refuse to hire someone because she is not Lutheran, but it cannot refuse to hire her because of her disability.
Lower courts, however, have held that it would violate the religion clauses to allow ministers to sue their religious employers, and therefore created the “ministerial exception” to antidiscrimination laws. Notably, the ministerial exception applies regardless of whether or not the alleged discrimination was religiously motivated. As a result, a minister cannot sue for race, sex, or disability discrimination even if her employers’ own religious tenets forbid discrimination on these grounds.
When does it apply?
The ministerial exception does not preclude all employees of religious organizations from bring employment discrimination claims, only employees who are considered “ministers.” “Ministers” are not limited to ordained clergy. Instead, the courts have taken a functional approach to determining who counts as a minister. If an employee’s “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered clergy.” Under this test, courts have found that school principals, schoolteachers, music teachers, choir directors and press secretaries, among others, are ministers.
The plaintiff in Hosanna-Tabor Evangelical Church and School v. EEOC was a teacher at a religious school who brought an ADA retaliation claim. At issue in the case is whether she should be considered a minister or not. While she spent most of her day teaching secular subjects, including math, language arts, social studies, science, gym, art, and music, she also taught a religious class and led her class in daily prayers.
What justifies the ministerial exception?
Courts have variously identified the Free Exercise Clause, the Establishment Clause, church autonomy or the religion clauses together as necessitating the ministerial exception. In deciding EEOC v. Hosanna-Tabor Evangelical Church and School, for example, the Sixth Circuit wrote that “the ministerial exception is rooted in the First Amendment’s guarantees of religious freedom.”
When the ministerial exception was first articulated, the Free Exercise Clause prohibited any substantial burdens on religious practices unless strict scrutiny was satisfied. As a result, Title VII’s ban on sex discrimination, which would outlaw a church’s practice of limiting its clergy to men, might well have violated the Free Exercise Clause, assuming the burden of having women clergy was substantial, and the state interest in eliminating discrimination was not compelling enough and tailored narrowly enough to justify this burden.
This argument is not actually the major Free Exercise Clause argument espoused in favor of the ministerial exception. (Almost no plaintiffs challenge religiously-required discrimination.) Instead, courts have relied on the notion of “church autonomy.” The idea is that the government should not intrude on internal church matters. In particular, the government should not interfere with the church-clergy relations. Ministers—“the lifeblood” of the church—represent and speak for the church. Consequently, the selection of spiritual leaders is a crucial internal decision, and one secular courts are not competent to make.
While often framed as a Free Exercise right, these church autonomy concerns might be more comfortably housed under the Establishment Clause. The Establishment Clause forbids the government from resolving theological disputes or endorsing one religious vision over another. In theory, adjudicating discrimination claims risk exactly this type of entanglement with religion if the court evaluates a ministerial employee’s spiritual qualifications or determines whether the ministerial employee sufficiently embodies the church and its teachings—a decision only the church is competent to make. Consequently, it could be argued that the ministerial exception is necessary to avoid Establishment Clause violations.
In fact, as I will argue in my next post, neither the Free Exercise Clause nor the Establishment Clause actually mandates the ministerial exception.