The Ministerial Exception Must be Put on New Foundations

1/10/2012—I will be reporting a number of insights from the annual meeting of the AALS, the Association of American Law Schools, in Washington D.C. One important one for purposes of this blog is the future of the ministerial exception, being considered now by the Supreme Court in the employment discrimination case, Hosanna-Tabor v. EEOC.

Traditionally, churches enjoy a great amount of autonomy in their internal decision-making. The most obvious example is that while a private employer could not usually limit an employment class to one gender, the Roman Catholic Church can do exactly that in permitting only males to become Priests. Gender and other discrimination laws do not apply.

The question is, why is this the case? Hosanna-Tabor is a disability retaliation case, but the facts do not matter until one decides whether there even is a ministerial exception. Nothing in statutory law exempts churches and while people might have assumed that churches are protected by the free exercise clause of the Constitution, since 1990, the Supreme Court has held that there is no free exercise protection against generally applicable laws, that is, laws not aimed at the practice of religion.

The AALS held a panel on this topic on Saturday. Two law professors who filed an amicus brief in the case (Leslie Griffin and Caroline Corbin) argued that there is no ministerial exception. Churches are protected only to the extent that any other organization would be—either by the right of association enjoyed by all expressive groups or by employment law itself, which allows discrimination where the job qualifications require it.

On the other hand, one professor (Robert Tuttle) argued a relatively narrow ground for the ministerial exception based on an Establishment Clause prohibition against the government, including the courts, deciding religious questions.

But the most widely held position was argued by the remaining two professors (Christopher Lund, the moderator, and Douglas Laycock) that church autonomy is grounded in the inherent and traditional separation of the realm of the state from the realm of the church.

Undoubtedly, this last position is what most religious groups want the Court to say in the case. But there are two problems with it. First, this kind of basic separation has implications for government involvement with religion that churches usually oppose. If the church realm is separate and government must stay out, then church groups cannot have it both ways in the sense of faith-based providers receiving public funds or government putting up Ten Commandments displays. Of course this is also why staunch secular separationists might favor the separate realm approach—Lund advocates a fairly strict separation as does Laycock in the area of government use of religious imagery.

But the other problem is that we as a society do not practice the separate realm approach. As Tuttle pointed out, if a church simply refused to pay its minister her contractual salary, even on the basis that on reflection the past sermons had not been truly Christian, the minister would certainly be able to sue in an ordinary contract case. And, of course, we all know that the government’s criminal law now reaches into the churches, as it did not during the Middle Ages with the tradition of refuge from the law in the church itself.

Where this will end up I’m not at all sure. The Supreme Court is not going to strike down the ministerial exception and those who wish it to would be unhappy if it did. The result would then be a general weakening of employment discrimination law as courts bent over backward to protect church autonomy. On the other hand, the Middle Age are over.