Luke Goodrich (Becket Fund) Guest-Blogging This Week About "Religious Hiring Beyond the Ministerial Exception"

I'm delighted to report that Luke Goodrich of the Becket Fund—one of the most prominent, successful, and ecumenical religious liberty litigation groups in the country—will be guest-blogging this week about his forthcoming Notre Dame Law Review article, Religious Hiring Beyond the Ministerial Exception:

Can a religious school fire its secretary for entering a same-sex marriage? Under the First Amendment's "ministerial exception," religious employers have a constitutional right to select their "ministers"—broadly defined to include individuals who perform important religious functions. But what about an employee, like a secretary, who is not a minister? Do religious groups have any legal protections for hiring non-ministers?

This Article provides a comprehensive taxonomy of legal protections for the religious hiring of non-ministers. It analyzes six protections. Three are statutory: (1) Title VII's religious exemption, (2) Title VII's bona fide occupational qualification exception; and (3) the Religious Freedom Restoration Act. Three are constitutional: (4) the church autonomy doctrine, (5) the freedom of expressive association, and (6) the Free Exercise Clause. For each protection, the Article examines the leading caselaw (where it exists), analyzes the arguments for and against the protection, and identifies key unanswered questions. The result is a much-needed roadmap of an emerging legal issue of great importance to scholars, jurists, and practitioners alike.

After providing this roadmap, the Article addresses the deeper problem of determining which legal doctrines offer the best "fit" for protecting the religious hiring of non-ministers. As the Article explains, Title VII's religious exemption offers strong statutory protection for the religious hiring of non-ministers. But recent developments in state law are taking that statutory protection off the table in some cases, forcing courts to grapple with thorny constitutional questions that neither courts nor commentators have yet explored.

I'm much looking forward to his posts.