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.


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