Discrimination by Employers

AU’s Top Ten Of 2021: Fighting To Put Reasonable Limits On The Ministerial Exception

  Rob Boston

Editor’s Note: The year 2021 was full of ups and downs – for the country, and for church-state separation. As the year draws to a close, we’re looking back at the top 10 church-state stories, how Americans United rose to the challenge to defend religious freedom and what’s on the horizon for 2022.

Our fundamental civil rights laws protect workers across the country from employment discrimination based on, among other things, their religious beliefs, gender, race, sexual orientation or disability. That means you can’t be fired or harassed because of the color of your skin, your religious beliefs or who you love, for example. Yet under a legal doctrine called the “ministerial exception,” religious entities are allowed to discriminate, but only when it comes to choosing those who play vital roles in preaching and teaching the faith.

Because houses of worship have the right to choose their own clergy, Catholic churches don’t have to allow women to be priests, fundamentalist churches don’t have to employ theological liberals, a synagogue doesn’t have to hire a Hindu to run services and so on.

The Supreme Court has held that this right extends to other types of religious institutions, such as schools. That means a seminary, for example, must be free to choose who teaches its theology.

But the ministerial exception has its limits – or at least it ought to. It was never intended to grant all religious employers carte blanche to discriminate in any way they see fit, even against people whose duties have nothing to do with imparting religious doctrine.

Yet, in the wake of some recent Supreme Court decisions, that’s exactly the kind of expansion of the ministerial exception that some Religious Right legal groups are pushing for. If they have their way, the exception will cover not just clergy and teachers who impart theology but virtually anyone who works for a religious institution, including teachers who teach secular subjects, receptionists, janitors and even nurses in religiously affiliated hospitals.

Think about what that could mean for hundreds of thousands, if not millions, of employees across the country. A Black science teacher at a religious school would have no recourse if the school admitted that it fired her because she is Black; a religiously affiliated hospital could refuse to accommodate a janitor with diabetes who needed to take 15 minutes to regulate his blood sugar; and a gay administrator at a religious nonprofit couldn’t take any legal action against a boss who regularly used vile epithets. No employee deserves that kind of treatment. And no employee should lose their legal protections against that kind of treatment just because they work for a religiously affiliated employer. That’s not religious freedom.

In 2021, Americans United pushed back. AU is in court representing workers across the country whose faith-based employers insist that these employees have no protections under our nation’s civil rights laws because they are, in effect, ministers. But they’re not ministers and they should not fall under an exception meant to protect the choice of who plays central and vital roles in preaching the faith.

Our clients include:

  • Gregg Tucker, a teacher and student life director at a private Christian school in Colorado who was fired after he challenged pervasive racism in the school.
  • Shelly Fitzgerald, a high school guidance counselor at a private Catholic school in Indiana who was fired because she married her same-sex partner of 25 years.
  • Margaret DeWeese-Boyd, a professor of social work at a Christian liberal arts college in Massachusetts who was denied a promotion after disagreeing with the school’s policies on LGBTQ rights.

These employees are not ministers; their jobs don’t involve spreading religious doctrines. They deserve the same fundamental employment protections everyone else in America receives. With your help, Americans United will see that they – and every other employee wrongly called a “minister” – get them.

An American Original

Is the separation of church and state in the Constitution?

Absolutely. The separation of church and state is baked into our founding documents and our system of government.

The “wall of separation between church and state” is an American original. It’s an American invention. We should be proud of that fact. And we should fight any disinformation that threatens this ideal.

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