{"id":4121,"date":"2024-01-22T10:05:50","date_gmt":"2024-01-22T15:05:50","guid":{"rendered":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/?p=4121"},"modified":"2024-09-27T18:57:21","modified_gmt":"2024-09-27T18:57:21","slug":"the-ministerial-exception-why-scotus-should-recognize-all-employment-decisions-by-religious-organizations-are-protected-from-government-interference-by-the-religion-clauses","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/the-ministerial-exception-why-scotus-should-recognize-all-employment-decisions-by-religious-organizations-are-protected-from-government-interference-by-the-religion-clauses\/","title":{"rendered":"The Ministerial Exception: Why SCOTUS Should Recognize All Employment Decisions by Religious Organizations are Protected from Government Interference by the Religion Clauses"},"content":{"rendered":"\n

By. Jack Denton<\/a>, Vol. 22 Staff Writer<\/p>\n\n\n\n

In some ways, a religion is like a sports team: individuals join a particular religious tradition, they practice the faith, and they often compete with other religious traditions (but for followers, not a championship). Moreover, like fans of a sports team, believers of a particular religious tradition are frequently fiercely devoted to their cause. Unlike athletics, however, religious traditions enjoy unique constitutional protections, like those found in the Religion Clauses of the First Amendment<\/a>.<\/p>\n\n\n\n

Among these constitutional protections is the ministerial exception<\/a>, which shields religious organizations from employment discrimination suits brought by employees qualifying as \u201cministers.\u201d However, there is no \u201crigid formula<\/a>\u201d for determining who qualifies as a \u201cminister\u201d within a religious organization. As a result, courts are left to make case-by-case decisions by \u201ctaking all relevant circumstances into account and [] determin[ing] whether each particular position implicate[s] the fundamental purpose of the exception.<\/a>\u201d<\/p>\n\n\n\n

This \u201cexception\u201d is problematic for two reasons: first, as Justice Thomas points out in Our Lady of Guadalupe School v. Morrissey-Berru<\/em><\/a> <\/em>(OLG<\/em>), it requires courts to answer \u201can inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis.\u201d Second, it allows religious organizations to be subject to some claims, violating the church autonomy doctrine<\/a>, which shields religious organizations from government interference in matters of doctrine and governance. No one would blame the Carolina Panthers if they fired their mascot for showing up on game day dressed as Brownie the Elf\u2013\u2013it\u2019s important for everyone<\/em> in the organization to be unified. This is even more true for religious organizations. Therefore, the Court should abandon the ministerial exception and recognize the autonomy of religious organizations in employment matters.<\/p>\n\n\n\n

Justice Thomas\u2019 Concern<\/strong><\/p>\n\n\n\n

            Justice Thomas has concurred in both Supreme Court cases concerning the ministerial exception. He has focused on the theological nature of the question as to whether an employee of a religious organization is a \u201cminister.\u201d In his view, \u201cthe Religion Clauses require civil courts to defer to religious organizations\u2019 good-faith claims that a certain employee\u2019s position is \u2018ministerial.\u2019<\/a>\u201d By shirking this constitutional requirement and opting for the case-by-case balancing test, the Court runs the risk of \u201cjudicial entanglement in religious issues,<\/a>\u201d violating the Establishment Clause<\/a>. For example, as Justice Thomas pointed out in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C.<\/em><\/a>, the many religious traditions in the United States have \u201cdifferent leadership structures and doctrines that influence their conceptions of ministerial status.\u201d How are we to expect any given federal district court judge to be able to competently determine whether someone is a \u201cminister\u201d of one of the thousands of religious organizations in the United States? Moreover, without a bright-line rule or \u201crigid formula,\u201d religious organizations may be left guessing whether they may be exposed to an employment discrimination lawsuit for letting go of an employee. Justice Thomas has recognized that this raises the possibility that some religious organizations will \u201cconform [their] beliefs and practices regarding \u2018ministers\u2019 to the prevailing secular understanding.<\/a>\u201d This could effectively be chilling religious organizations from fully exercising their First Amendment right to free exercise. Therefore, not only does the ministerial exception require courts to violate the Establishment Clause by making judgments about who is a \u201cminister\u201d within any given religion, it could also be violating the Free Exercise Clause by effectively forcing some religious organizations to conform their practices to be more easily understood by a judge.<\/p>\n\n\n\n

Church Autonomy Doctrine<\/strong><\/p>\n\n\n\n

            The church autonomy doctrine is rooted in the Religion Clauses of the First Amendment. It recognizes that these two clauses create a sphere of autonomy for religious organizations to be free from government interference in internal matters, such as governance and doctrine. For example, in Serbian E. Orthodox Diocese v. Milivojevich<\/em><\/a>, the Supreme Court recognized that a secular courtroom is not the place for \u201creligious controversies\u201d to be solved. Similarly, in Watson v. Jones<\/em><\/a>, the Supreme Court said that those who join religious organizations impliedly consent to the organization\u2019s government for decisions regarding \u201ccontroverted questions of faith . . . .\u201d Furthermore, the Court said that granting the ability of a church\u2019s adherents to appeal any decision of the church to the secular courts would cause the \u201ctotal subversion\u201d of religious organizations. Thus, it is indisputable that the church autonomy doctrine is intended to protect religious organizations from government interference in matters of faith and governance.<\/p>\n\n\n\n

            What then does that include? What is a matter of faith? What is a matter of governance? There can be no question that matters of employment may be related to both faith and governance. If a religious organization chooses to employ an individual, it seems clear that that is a matter of church governance. The employee was hired by someone given authority by the religious organization and now plays a role within it. In addition, the employment of an individual may directly impact the religious organization\u2019s faith or its ability to effectively communicate its faith.<\/p>\n\n\n\n

For instance, in Billard v. Charlotte Catholic High School<\/em><\/a>, a Roman Catholic high school terminated the employment of one of its substitute teachers for announcing on social media his intent to marry someone of the same sex\u2013\u2013an act expressly proscribed by the Roman Catholic Church. Despite this being at odds with the Church\u2019s teachings, a federal judge found<\/a> that the school had impermissibly discriminated on the basis of sex and that the ministerial exception did not protect it due to insufficient facts showing his work \u201cimplicated the fundamental purpose of the exception,\u201d i.e.<\/em>, \u201cto preserve a church\u2019s independent authority\u201d in matters of faith and governance. But this is exactly the sort of internal matter of faith and governance the church autonomy doctrine blocks from government influence. If the school continued employing Mr. Billard, it would implicitly condone the marriage, as the school requires its employees to \u201cuphold the teachings and principles of the Catholic Church.<\/a>\u201d Nevertheless, the ministerial exception did not shield the school despite this situation clearly implicating a matter of faith. For the government to step into this situation and tell the school it cannot fire Mr. Billard for violating the school\u2019s faith because the faith just so happens to conflict with antidiscrimination laws flies in the face of the church autonomy doctrine, clearly tearing down the church-state divide and prohibiting the school from exercising its faith.<\/p>\n\n\n\n

Conclusion<\/strong><\/p>\n\n\n\n

The Supreme Court seemed to think in OLG<\/em><\/a> that no \u201crigid formula\u201d for determining who qualifies as a \u201cminister\u201d was needed because \u201cthe lower courts have been applying the exception for many years without such a formula.\u201d This misses the mark though. A bright-line rule is needed not because of the workability of the current standard, but because the current standard requires courts to answer \u201can inherently theological question\u201d and because it violates religious organizations\u2019 right to make decisions concerning internal matters of faith and governance. Therefore, at its next available opportunity, the Court should abandon the ministerial exception and affirm the constitutional right of religious organizations to make employment decisions free from government interference.<\/p>\n","protected":false},"excerpt":{"rendered":"

By. Jack Denton, Vol. 22 Staff Writer In some ways, a religion is like a sports team: individuals join a particular religious tradition, they practice the faith, and they often compete with other religious traditions (but for followers, not a championship). Moreover, like fans of a sports team, believers of a particular religious tradition are …<\/a><\/p>\n","protected":false},"author":10,"featured_media":4123,"comment_status":"open","ping_status":"open","sticky":true,"template":"","format":"standard","meta":[],"categories":[396,11],"tags":[121,133,146,152,156,157,267,289,291,305],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/4121"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=4121"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/4121\/revisions"}],"predecessor-version":[{"id":5267,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/4121\/revisions\/5267"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/4123"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=4121"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=4121"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=4121"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}