Fighting Discrimination

How religious employers exploit the ‘ministerial exception’

  How religious employers exploit the ‘ministerial exception’

By Aidan Scully

The ministerial exception is a logical, and indeed vital, part of the Free Exercise Clause of the First Amendment that allows religious institutions autonomy in selecting their religious leaders. Under the ministerial exception, the state doesn’t get to intervene when churches, synagogues, mosques and other religious institutions choose their faith leaders.

As part of this doctrine, religious institutions are granted an exception from certain workplace regulations that prohibit discrimination in hiring and firing when it comes to clergy. These regulations include Title VII of the Civil Rights Act of 1964, which bans hiring discrimination on the grounds of “race, color, religion, sex, and national origin.” When it comes to hiring religious leadership, the state steps completely aside.

The ministerial exception is a powerful tool in defense of religious free exercise. It should come as no surprise, however, that this tool is increasingly being abused by religious institutions that exploit this commonsense provision to reject, harass and fire non-ministerial employees. We’re now seeing Shadow Network organizations that have repeatedly used “religious freedom” as an excuse to target marginalized communities advising religious institutions to avoid a wide range of workplace protections by distorting this exception.

Expanding the exception

In 2012, the Supreme Court cited the ministerial exception in Hosanna-Tabor v. EEOC, ruling against a religious school teacher who sued her former employer for violating the Americans with Disabilities Act. The court affirmed and expanded upon that decision in 2020 with Our Lady of Guadalupe v. Morrissey-Berru, stating that two teachers at Catholic schools, who had been fired for their cancer treatment and their age respectively, could not prevail against their employers. The schools did not provide a religious justification for their terminations because, under the ministerial exception, they didn’t need to.

Christian Nationalist groups are pushing to allow religious employers to designate employees with even minor religious duties as “ministers,” excluding them from any kind of workplace protection. They would like to expand the once-narrow ministerial exception into a general exemption that allows religious employers to disregard commonsense regulations that protect the most vulnerable groups in our society.

Exploiting the exception

There is still a significant amount of gray area in the Supreme Court’s interpretation of the ministerial exception. What is certain, however, is that many of the organizations that are responsible for opposing church-state separation are instructing religious employers how to take advantage of the high court’s rulings.

The Alliance Defending Freedom, one of the most notorious organizations of the Shadow Network, has developed resources describing how to take advantage of the exception. Its guidelines include, among other things, descriptions of how organizations could contractually define a receptionist as a “minister” if they “answer basic questions about the church’s faith” or “pray with callers.” The First Liberty Institute, in its guidance on isolating religious schools from “legal attack,” says that religious job descriptions and titles should be assigned to positions like counselors, managers and receptionists to ensure the ministerial exception will apply.

These organizations have long histories of opposing the separation of church and state and arguing that “religious freedom” grants religious institutions and people license to discriminate as they please. The last decade has shown how the ministerial exception can be twisted to serve that end. In Illinois, a church music director was repeatedly harassed for his sexuality, weight and disability and was ultimately fired. In 2021, the 7th U.S. Circuit Court of Appeals ruled against him in Demkovich v. St. Andrew the Apostle.  The court concluded that the ministerial exception not only protects decisions to hire and fire ministers but for some reason shields decisions to harass them at work, too.

Easing the exception

Laws like Title VII and the Americans with Disabilities Act exist because marginalized workers have faced and will face discrimination without them. Granting religious employers an unbounded exception from these laws needlessly puts at-risk workers in harm’s way.

The separation of church and state is a workers’ rights and labor justice issue. All workers, including employees of religious institutions, are entitled to the equality without exception that rests at the core of AU’s mission. Seeking to opt out of hard-won legal protections for marginalized communities is just one of the many ways that the Shadow Network is seeking to undo the progress of the last several decades.

Aidan Scully is a member of Americans United’s Youth Organizing Fellowship.

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