Do We Need More “Ministerial Exceptions”? (by Kile Jones)

Kile Jones (Ph.D. student at CLU)

This post is written in conjunction with the Religion and Law in the U.S.” course dialogue project and is directed by Grace Yia-Hei Kao.

In a recent unanimous and precedent-setting Supreme Court ruling, a “ministerial exception” was given to Hosanna-Tabor Evangelical Lutheran Church and School regarding employment discrimination.  Cheryl Perich, a “called teacher” at Hosanna-Tabor, was fired after issues surrounding her narcolepsy developed.  As is well known in the United States, innumerable federal, state, and local laws exist to protect employees from discrimination based on race, sex, age, disability, and so forth.  Title VII of the Civil Rights Act (1964) prohibits employment discrimination based on race, color, sex, religion, or national origin.  In the Americans with Disabilities Act (ADA, signed in 1990), employers are also held liable for discrimination based on an employees’ disability.  The “ministerial exception” excludes religious institutions and ministers from the ADA.  It is important to note that the ADA protects employees hired by private companies as well as public ones.

In the slip opinion, the Supreme Court argues that, “The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.”  The opinion cites other cases where it was ruled that religious institutions are their own arbiters of employment and termination and cannot be compelled by the State to comply with certain national laws (see Watson v. Jones, Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, and Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich).  Justice Alito concurs by saying, “The “ministerial” exception gives concrete protection to the free “expression and dissemination of any religious doctrine.”  The Constitution leaves it to the collective conscience of each religious group to determine for itself who is qualified to serve as a teacher or messenger of its faith.”

Since the Court’s ruling, there have been a plethora of responses concerning religious liberty and the role of the State.  Many religious groups and scholars have praised the Court’s decision as a hallmark moment in setting precedent for greater religious freedom.  The Union of Orthodox Jewish Congregations of America has applauded the ruling.   Nathan Diament, the Unions’ director of public policy said, “We applaud the Court for its decision and we express our appreciation for the blessing of living in the United States of America where Jews, and people of all faiths, can enjoy such expansive freedom of religion.”  Keith A. Fournier, a writer for Catholic Online, thinks “this resounding reaffirmation of the rights of Churches and religious institutions to operate freely and follow their own internal doctrine…at least protects the Church and Religious Institutions for awhile.”  Ron Lindsay, president of the Center for Inquiry, argues against these kinds of appraisals.  Lindsay says, “The Court’s ruling allows the Catholic Church, and any religious institution, to get rid of anyone acting in a ‘ministerial’ capacity for any reason—they’re too old, disabled, Latvian, or whatever.  Moreover, under the Court’s ruling, a ‘minster’ who has been sexually harassed by church leaders and is fired for complaining has no remedy.”  Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, said, “Clergy who are fired for reasons unrelated to matters of theology – no matter how capricious or venal those reasons may be – have just had the courthouse door slammed in their faces.”

As someone who considers himself a liberal secularist, I find this ruling unsettling for many reasons.  Firstly, I do not think that because an institution counts as “religious,” that it ought to have certain exemptions.  As far as I am concerned religious groups ought to be treated the same way that secular non-profit organizations are.  Against the Court’s ruling, I think that being “religious” does not mean you have the legal right to discriminate.  Secondly, there are historical and contemporary examples of how religious organizations have handled their internal affairs, and they are not always charitable or gracious.  I think that innumerable abuses—sexual, physical, psychological, and social—have been allowed in the name of a “laissez-faire” take on the State’s relationship with organized religion.  There are good reasons why people are scared of absolute freedom of religion: it can lead to abuse after abuse.  Thirdly, I think there are religious reasons people could employ for disagreeing with the Court’s ruling.  Many parishioners and laypersons want legal protection for their jobs, lives, and families.  If you are a religious leader, or simply work for a religious institution, you do not have employment discrimination protection from the State.

Lastly, I would like to consider the impact that this ruling has on the lives and well being of women.  A recent study confirms that women, on average, are more religious than men.  If women are more involved in religious organizations, and comprise more of the work force, then they will be disproportionately affected by employment discrimination.  Emilie Townes, a contributor to Feminist Studies in Religion said what I am primarily arguing, namely that, “Religious institutions are not exempt from practicing discriminatory behavior simply because they are religious.”

Kile Jones is finishing his second year of coursework towards a Ph.D. in Religion, Ethics, and Society at Claremont Lincoln University.  His interests include religious studies, secularism, liberal religion, and unbelief.  Mr. Jones considers himself influenced by secular humanism, atheism, and Unitarian Universalism.  He is the Founder/Editor-in-Chief of Claremont Journal of Religion and is a Contributing Scholar at State of Formation.

  • Grace Yia-Hei Kao

    Kile: This is indeed an important case and I’m looking forward to the class eventually engaging the larger question of “church autonomy” and then more specific questions having to do with employment.

    • Grace Yia-Hei Kao

      Let me add further comments to stimulate discussion.

      Here’s a snippet of what the Supreme Court held: “The Court agrees that there is such a ministerial exception. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”

      What is problematic about this?

      • Drew Baker

        Even from my “strict scrutiny” perspective, I actually agree with Kile on this case. The state has a strong interest in making sure that workers are not discriminated against based on race, sex, age, disabilities, etc. I also do not believe that there is any way that the government could achieve the goal behind this interest (minimizing workplace discrimination as much as possible) without making it illegal in all cases – even within religious organizations. Therefore, even by a standard of strict scrutiny, I think that the court was wrong in this decision. In response to your question, Dr. Kao, I actually recognize that the enforcement of the law does violate some free exercise within particular religious organizations (so I do not disagree with the part of the text you quoted), I also just recognize that (as we have seen in class based on legal precedent) the government can restrict free exercise under a particular set of conditions, a set of conditions that I believe are met in this specific case.

  • Katie Kubitskey

    Kile: I am excited to bring up some of these same issues in class this coming week. I, as well, see problems with religious organizations receiving exemptions that other organizations do not. Especially involving disability discrimination, the rights of that individual as a U.S. citizen should not be forfeited just because of being a part of a private, religious institution. While the “ministerial exemption” is granting religious freedom to ordained individuals, that freedom, in this case, is leading to an imposition on the rights of another individual and is therefore problematic.

  • Bryan Cottle

    Kile: Wow! This is a very troubling case. The fact that the issue occurred on behalf of health issues and not any doctrinal conflict or religious worthiness conflict (as determined by the religion) is very unsettling for me. However, I agree with what the Supreme Court held (as referenced by Professor Kao) stating, “By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.” What we have here is a potential powder keg for the courts. If the court were to take any action in behalf of the employee on this they would be opening the door for the possibility of Free Exercise and Establishment infringements. A given health condition might very well hinder a persons ability to perform a job, and according to my knowledge (off the top of my head) even with the ADA, some terminations are legal and legitimate if an individual’s disability severely hinders that person from performing the legitimate job position. For instance somebody who is blind would not be able to maintain a job as a truck driver etc. Yet in this case I hardly see narcolepsy (unless very severe) interfering with a teacher’s ability to teach. In that regard, I agree with Rev. Barry Lynn that clergy should not be fired in matters unrelated to theology and practice. But then again, at what cost do you risk tipping over Free Exercise and Establishment protection. It is a slippery slope both ways.

  • Katrina

    Thanks for sharing Kile. I heard about this disturbing case while listening to the news (ah hem, The Daily Show), and I was excited to see you bring it to this forum. I am in complete agreement with you about the ridiculousness of this case, and I am especially concerned with the negative impact that this has on people with disabilities that are otherwise protected by law. While I would not go so far as to say that there should be no distinction between religious free exercise and the privileges given to non-profits (a discussion I look forward of furthering in class), I also find this use of the “ministerial exemption” to be an absurd use of the free exercise clause. You also make an excellent point about the negative impact on women, especially as they are more likely to work for religious organizations. I once had a conversation with a woman who had just began a new job with a religious organization. Soon after she began she learned she was pregnant. The organization basically told her that they did not have to offer her maternity leave, but they were generous enough to do so. I am curious as to how many women, people with disabilities or other minorities have lost their jobs because some disability, pregnancy or other factor has made them “an unwanted minister” that the state cannot protect out of fear of “imposing” on the group. You’re right, free exercise does not grant the right to discriminate, which seems obvious enough but will surely get more murky as we continue to examine more cases.

  • Kile Jones

    Thank you all for your comments. This is a very complicated issue that deserves attention, and in my opinion, scrutiny. While I understand the desire for religious liberty, namely, by the government not becoming “excessively entangled” (Lemon Test) with religion, I cannot excuse disability discrimination on the basis of such liberty. While I do not think that the Supreme Court should appoint ministers or handle other ministerial affairs, I do think the government has good reason to protect ministers and those who work for religious organizations from employment discrimination. Thanks.


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