Religious liberty

More on the Ministerial Exemption and Religious Autonomy

|The Volokh Conspiracy |

From Victoria Dorfman, Todd Geremia, Anthony Dick & Kaytlin Roholt Lane (National Review Online), who wrote the law professors' amicus brief (which I was glad to join) in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel; an excerpt:

A religious group's autonomy to choose its key religious personnel is … not confined only to the hiring and firing of religious "leaders." At oral argument, the teachers' lawyer contended that the ministerial exception should cover only those employees who perform leadership roles, but Hosanna-Tabor itself rejected that position: "Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree." And of course, to her students a teacher is a leader, and if she teaches them religion, or leads them in prayer or worship, she is a religious leader.

Instead of focusing on an employee's title, the focus in these cases must be on the functions performed by those who work for religious bodies. As Justice Alito explained in his Hosanna-Tabor concurrence, the First Amendment protects the ability of religious groups to engage in "certain key and other religious ceremonies and rituals, as well as the critical process of communicating the faith." Religious groups must accordingly "be free to choose the personnel who are essential to the performance of these functions." Since Hosanna-Tabor, lower courts have crystalized around the functional approach adopted by Justice Alito's Hosanna-Tabor concurrence. But even before Hosanna-Tabor, lower courts have consistently applied this functional approach for decades.


NEXT: "The New York Bar’s Misguided Discrimination Against Out-Of-State Law Schools"

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  1. Let’s call this for what this really is. This case is about church run K-12 schools, but they want a ruling so broad it would expand to any business that religious groups run. They want the ability to strip all worker protections from employees of their hospitals and universities. They claim it is about “religious freedom”, but it does not look like freedom at all from the worker’s perspective when they lose protections such as minimum wage, overtime, whistle blower, disability discrimination and more.

    SCOTUS got this all wrong. The rule should not be who is a “minister” or not, but what is the reason the person is hired or fired. Not hiring a non-Catholic to teach Catholic school is ok, not hiring gays is ok, but not hiring blacks is not. Firing someone for reporting child abuse is defiantly not ok. The case in front of SCOTUS was that they want protection for firing a woman with cancer.

    1. A religious institution should not (and thankfully does not) need to justify why it picked someone to perform a religious function. The government cannot tell a synagogue, “No, you have to hire John to instruct your members in religious matters because you don’t have a good reason for rejecting him.” It’s not the government’s job to appoint religious teachers.

      1. This goes far beyond religious teachers. This is about any employee of religious owned hospitals, universities, and other businesses. They want the ability to exempt anyone of their employees from labor laws.

        1. Employees don’t have to be employed by “religious owned hospitals.” I mean seriously: if you don’t want to be “discriminated against” by icky religious people, then don’t apply for jobs where you would be working for those icky religious people.

          1. And if the religious folk *really* fired her because she had cancer, I suspect the Lord will have a chat at some point about that as it’s not a particularly Christian thing to do.

            My guess, and hopes, is that there were other reasons….

        2. That issue can be solved by the courts coming up with a reasonable way of determining who is a minister. That solution doesn’t open the can of worms of the state telling religious organizations who can be a minister.

          1. Why should “courts” be the ones to determine who is a minister and who isn’t? Seems like the religious organization is the one better suited to make that determination.

            Courts are not all-seeing, all-knowing entities filled with mythic, Solomonic wisdom. They shouldn’t tell a religious org who gets to be a minister and who doesn’t. If that happens, then there is no religious liberty and these organizations exist at the mercy and tolerance of government. Screw that.

            1. Unlike the question of who can be a minister, the definition of what jobs qualify as being a minister worthy of First Amendment protection, is not a matter of church doctrine.

      2. The government may not be able to tell a synagogue that, but why shouldn’t it be able to tell a business “you have to comply with employment discrimination laws”?

        In addition to what Molly says, it’s also worth remembering, this isn’t only about discrimination based on religion. It’s about all sorts of discrimination laws. Why should there be a religious preference to, e.g., sexually harass people, at all?

        1. but why shouldn’t it be able to tell a business “you have to comply with employment discrimination laws”?

          Because of a thing called the Free Exercise Clause. It’s called religious liberty, and the government cannot tell a religious organization how to conduct itself.

          Seriously, think about your position: should a religious organization that still believes in that quaint, old-fashioned notion that true marriage is a union only between a man and a woman be forced to hire a married lesbian?

          To quote a certain former vice president: “Come on, man!”

          1. Why should the government be able to declare a major aspect of life, earning food for your mouth, a religion-free activity? You do not have government’s permission to do that?

            How in god’s name did it agglomerate that power?

          2. Seriously, think about your position: should a religious organization that still believes in that quaint, old-fashioned notion that true marriage is a union only between a man and a woman be forced to hire a married lesbian?

            For the position of janitor, “yes.”

          3. So you think there’s a free exercise right to sexually harass your church employees?

            Sorry. I think the minister exception should be limited to just that, ministers. Church leaders. If there are none, there’s no reason for the exception.

            And the exception should only go to issues where there is an established inexorable conflict with church doctrine, and it shouldn’t apply at all where there are strong countervailing public policies, e.g., sexual harassment laws.

          4. Why would a married lesbian want to teach at a catholic school? It’s not pay/benefits. What feature would attract a married lesbian. There are literally dozens of teaching opportunities for employment. To reverse the roles, why should the institution acquiesce to the desires of one? Ask all the other teachers to adopt the desires of one?

        2. I would hope courts can distinguish between claims of adverse job actions on account of sex and claims of a severe and hostile work environment on account of sex. The ministerial exception applies only to the former because only the former involves church doctrine.

          1. The problem is, church doctrine is whatever the church says it is.

            1. Although the facts of any particular case will be important, I suspect not many churches are claiming a doctrinal right to sexually harass.

    2. How are courts supposed to decide which reasons are OK and which are not?

      1. That is a complicated questions that would take lots of litigation to answer. But for now I can safely say that cancer, reporting crimes, objecting to unsafe practices are reasons that should be illegal.

        1. I like how your proposed solution is “lots of litigation.” We used to solve things without resorting to lawfare all the time. Resort to the law ought to be a last resort, since the law is a blunt force instrument.

          Let gay people be gay. Let religious people be religious. There ought to be room enough for folks to co-exist. There doesn’t need to be a winner and a loser.

    3. How about just start and end with freedom of association and leave the government out of personal and business relationships altogether?

      Get the bigots out in the open rather than hidden away, looking for loopholes to work legal bigotry.

      1. That was the case up till around 1900. It was a disaster. Workers were abused, dramatically underpaid, and worked long hours in dangerous conditions. Holidays and breaks were few and far between. Union organizers were literally beaten and murdered.

        1. MollyGodiva is indulging in solidarity agitprop. This is pure socialist mythmaking on her part. The comment is pure Workers’ Paradise boilerplate.

          1. I’m sure America will become a worker’s paradise once Biden is elected President!

          2. What I stated is historically accurate. They did not even try to hide it back then.

      2. >freedom of association
        How will the lawyers feed their families?
        What happens if those “whites only” bars, restaurants, and hotels start to succeed?

    4. I don’t think a “if we give an inch, they’ll take a mile” parade of horribles is reasonable here.

      Let’s step back a minute. It reflects an atmosphere of extreme distrust. It’s a bit like white Southerners’ attitude towards black people: if we let them shop in our stores, they’ll rape our women; if we let them vote, they’ll institute black government (and rape our women); if we let them use our bathrooms, they’ll rape our women.

      It seems reasonable fo come up with boundaries that provide people with a reasonable amount of freedom without taking everything.

      And when you are so suspicious of people you start thinking that if you let them have an inch they’ll take you for all you’re worth, that’s at least some evidence that you’re prejudiced against them.

      1. This is not a parade of horribles, it is their stated goal. They even alluded to it during the SCOTUS hearing.

      2. Perhaps whether the parade of horribles is reasonable is a judgment that should be left to the elected branches.

      3. don’t think a “if we give an inch, they’ll take a mile” parade of horribles is reasonable here.

        Let’s step back a minute. It reflects an atmosphere of extreme distrust.

        Having worked in the field of labor relations for quite a while, I can assure you that “extreme distrust” is justified. All institutions try to exert maximum control over hiring and firing decisions, including the freedom to discriminate on any basis they choose. Until you’ve seen a labor union fight an organizing campaign amongst its own employees, you will not understand the depth of this desire to maintain maximum control.

        Of course religious organizations will use any rope they’re given in this decision to expand the employment-law-free zone that the ministerial exemption has created. That’s just how institutions roll.

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  3. Instead of focusing on an employee’s title, the focus in these cases must be on the functions performed by those who work for religious bodies.

    OK sure, but how much religion function is enough. Is a teaching position that covers only secular content except for 1hr/week teaching religion covered? What about a janitor that mops the floors 39H a week and then teaches ethics the last hour?

    The whole idea of looking at “function” assumes that there is just one thing to look at it.

  4. It does seem odd to me that religious organizations can invoke the ministerial exemption for “ministers” who don’t share their religion; as one of the lawyers said, how can a Jewish teacher be considered a Catholic “minister”?

    And there is no question whatsoever that, should the Court expand what one Justice correctly termed “the employment-law-free zone” of the ministerial exemption in the way that the religious schools are requesting, it’s Katie-bar-the-door for pretty much every employee of a religious organization; their employers will sooner or later claim that all of them are “ministers.” That’s just the way institutions roll; they expand their power over their employees until someone tells them “stop.”

    1. Let’s look at this. Government can’t establish a religion. Are you saying this means government can’t run a press? The existence of a government printing office violates the constitution? The First Amendment repealed the requirement that Congress publish a journal?

      If the two are really equivalent, this would be one of the consequences.

      1. Sorry, this was intended as a reply to apedad’s comment.

  5. Reading the comments above about why should religious institutions have to follow labor laws. . . well media organizations (WaPo, Fox, etc.), have to follow labor laws (safety, discrimination, unions, etc.

    1A addresses both Press and Religion so there should be no difference in the labor standards, i.e. Religion should not receive extra protection.

    1. Because of how it impacts the faith and mission of a church, government involvement in ecclesiastical hiring and firing decisions implicates the Establishment Clause. There isn’t an analogy for the media.

      On the other hand, safety, minimum wage and other labor laws raise no Establishment Clause issues, and thus apply equally to the church and media.

      1. Josh,
        You ignore that in several religions there are “religious orders” that NOT priests (or ministers). All including the priestly orders take certain vows (or make certain pledges) as part of their joining the order. For some orders there is a vow of poverty. This vow can dictate a “pay”well below that established by minimum wage laws. Of course, you can compute the “effective wage” that includes the provided “fringe benefits (housing, meals, etc.).
        Clearly the “ministerial exception” is biased in its very name.
        Moreover, the discussions above neglect the existence of lay orders such as deacons in some religions.

        When you say the person is a janitor, the matter may seem clear, but when one describes the similar activities of a sacristan, the matter remains muddy with respect to a dividing line between religious duties and secular activities.

        1. Perhaps your minimum wage hypothetical is an exception where enforcing a minimum wage law would implicate he Establishment Clause because such enforcement would interfere with internal church doctrine. I suspect in the vast majority of minimum wage, and other labor cases, only the Free Exercise clause is implicated and Employment Division v. Smith controls.

          I fully agree that courts, not churches, should decide who is a “minister” since in this context “minister” is a legal term, not a religious term.

    2. Suppose the two were equivalent. Then in addition to not being able to establish a religion, government also couldn’t establish a press. An official government printing office would be unconstitutional. Congress couldn’t publish a journal, courts couldn’t publish reports, etc. etc. etc.

      It’s obviously absurd. This alone should make clear that the clauses don’t mean the same thing at all. The establishment clause covers something that is totally outside the scope of the speech and press clauses. Government is completely free to establish a press.

    3. So judges decide WHO is a journalist? Exactly who is afforded freedom of press? The judiciary creating “tests” to define who qualifies?

  6. I think the problem of defining what a minister is is similar to the problem of defining what a religion is.

    For the religion definition problem, the two extremes could be characterized (loosely speaking) by the case where the English Supreme Court defined religion as based in beliefs and practices, and hence held that identifying people as Jewish based on their birth or the validity of their conversion was not a religious practice at all. The court characterized such an approach as a form of Jewish racism, not a form of Jewish religion. Simply put, a definition of “religion” that concludes that major world religions aren’t really religions is suspect of being gerrymandered to favor the majority religion.

    The other extreme is the prisoner who claimed to have discovered a new religion with pornography as its scriptures, and demanded an exception to prison rules on pornography. I think the state is entitled to be suspicious of recently-invented religions that seem narrowly designed to get around specific rules or achieve a specific desired legal outcome.

    I think the same considerations apply to ministers. On the one hand, there have to be some external standards. The state needn’t accept everyone’s claim that they are a minister for the same reason it needn’t accept everyone’s claim that what they are doing is a religion. On the other hand, if the standard leaves out existing major world religions, that’s good evidence that it’s too narrow.

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