AU Urges Supreme Court To Deny Religious Groups An Overly Broad Right To Discriminate

Church-State Watchdog Calls For A Narrow Interpretation Of ‘Ministerial Exemption’


Americans United for Separation of Church and State today asked the Supreme Court not to grant religious groups a sweeping right to ignore anti-discrimination laws.

AU filed a friend-of-the-court brief in a case pending before the justices called Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. The case deals with a Michigan religious school that fired a teacher because of a medical condition.

The brief notes that religious organizations have long had the right to limit employment to people who share their theology when those employees have clear religious duties – a concept known as the “ministerial exemption.”

Some courts, AU says, have taken this concept too far.

The Rev. Barry W. Lynn, executive director of Americans United, said the Supreme Court should use the case to make it clear that the ministerial exemption is not an unrestricted license to discriminate.

“Discrimination on the basis of race, sex, disability and other features is offensive to American values,” Lynn said. “Religious groups should have the leeway to choose key staff according to religious criteria, but employees should be protected from discrimination that isn’t motivated by the groups’ religious beliefs.” 

The AU brief urges the Supreme Court not to deny judicial access to Americans who face discrimination by religious groups.

“[C]ourts have extended the exception far beyond what is required by the [Constitution],” reads the brief. “They have converted the ministerial exception into a shield for all forms of discrimination and retaliation, regardless of motivation. And they have prevented judicial redress of even the most flagrant racial or sexual harassment, even when motivated by naked animus unrelated to any religious belief.”

The brief asserts that a Roman Catholic Church or Orthodox Jewish congregation that does not ordain women should not be required to hire them as clergy. But, it goes on to say, “the First Amendment does not permit an otherwise egalitarian church to fire a female Sunday-school teacher (or its leaders to sexually harass her) when the firing resulted from an individual pastor’s purely personal belief that women should not work outside the home.”

Other organizations signing the brief are the American Civil Liberties Union Foundation, the ACLU of Michigan, the National Council of Jewish Women, the Sikh Council on Religion and Education and the Unitarian Universalist Association.

The brief was drafted by Americans United Litigation Counsel Gregory M. Lipper and Madison Fellow Robert Shapiro in consultation with AU Legal Director Ayesha Khan.

Americans United is a religious liberty watchdog group based in Washington, D.C. Founded in 1947, the organization educates Americans about the importance of church-state separation in safeguarding religious freedom.