Thursday, January 31, 2019

The Ministerial Exception: A Religious Right to Discriminate

In early 2012, the U.S. Supreme Court recognized, for the first time ever, a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference. In his written opinion, Chief Justice Roberts wrote, “The Establishment Clause [of the First Amendment to the U.S. Constitution] prevents the government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” The wrench in the works here concerns the matter of delimiting the exception, given the inflation in what constitutes “ministerial” in terms of tasks.
As for what positions in a religious organization constitute ministers, the court was “reluctant to adopt a rigid formula.” In his concurrent opinion, Justice Thomas highlights the inherent difficulty that the government would face in delimiting the ministerial exception by trying to define the ministerial role. “The question whether an employee is a minister is itself religious in nature, and the answer will vary widely,” he wrote. “Judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multifactor analysis risk disadvantaging those religious groups whose beliefs, practices and membership are outside of the ‘mainstream’ or unpalatable to some.” In other words, the state, just in determining what constitutes a minister, violates the Establishment and Free Exercise clauses in entering the realm of institutional religion.
For all the problems that a judicial or governmental definition of “minister” would entail both constitutionally and for the religious organizations, there is also the risk that the latter could take advantage of the leeway and define virtually all of their jobs as ministerial. Already as of the date of the court’s decision, Christian churches had been busy expanding “ministerial” to include chores like weeding garden areas, preparing food, and even serving as security to protect church property. In other words, church officials had discovered that attaching “minister” to a task can attract potential volunteers for what are actually pretty mundane tasks. I would not be surprised to find a “taking out the trash” ministry at some church—praying, perhaps, over the decaying food for its prompt removal.
I see the same mentality behind the tendency of people to consider themselves to be professionals. Among the most notorious are the self-described experts in leadership who refer to themselves (and each other) as “coaches.” In other words, I suspect that “minister” serves a similar marketing purpose as “coach.” As a result, religious organizations may get away with being able to discriminate in filling (or replacing) virtually any of their jobs, even those of an office manager and accounting clerk.
Sensing the possibility that Roberts’ opinion could be exploited, Justice Alito, joined by Justice Kagan, argues in a concurrent opinion that the exception “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” Weeding a garden or protecting the property does not involve being a messenger of a religious institution’s particular faith. Even in parochial schools, the court’s decision “appears to encompass, for instance, at least those teachers in religious schools with formal religious training who are charged with instructing students about religious matters,” according to the New York Times. Even so, I suspect that religious organizations will continue to expand “ministerial” tasks for marketing purposes yet suddenly taking the designations seriously when discrimination needs a defense.
Accordingly, I foresee the need for a few more court decisions to test the limits, hopefully without the courts getting too involved in what can be a religious (or marketing) question. Perhaps the underlying, utter unresolvable problem is that while religious officials and administrators are involved in a transcendent-based enterprise governing by divine law, those people are also human, all too human, and thus necessarily subject to civil law. Therefore, the matter of delimiting the ministerial exception is not as clear as Thomas suggests. The court’s decision is therefore likely not the end of the story.


Adam Liptak, “Religious Groups Given ‘Exception’ to Work Bias Law,” The New York Times, January 12, 2012.