The Volokh Conspiracy
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Religious Hiring Beyond the Ministerial Exception
An important church–state question likely headed to the Supreme Court.
When can a religious group, like a church or school, lawfully fire an employee for violating its religious teachings? Under a constitutional rule called the "ministerial exception," religious groups have broad leeway to hire and fire "ministers"—broadly defined to include employees who perform important religious functions. But what about any employee like a secretary or janitor, who may not perform important religious functions? What legal protections do religious groups have when they hire and fire non-ministers?
This is the question presented in a spate of new cases now hitting appellate courts nationwide and likely, eventually, landing in the Supreme Court. It is also the question addressed in my forthcoming article in the Notre Dame Law Review, Religious Hiring Beyond the Ministerial Exception.
The article provides a comprehensive analysis of six potential legal protections for the religious hiring of non-ministers. Three are statutory: (1) Title VII's religious exemption, (2) Title VII's bona fide occupational qualification exemption; 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 key caselaw, breaks down the arguments for and against applying the protection, and identifies key pressure points and unanswered questions. The result is, I hope, a much-needed roadmap of an important issue of pressing interest to scholars, jurists, and practitioners alike.
Thanks to Eugene for inviting me to guest-blog about this issue. This first post will define the problem I'm addressing and explain why it has become such a pressing issue in federal court. Future posts will unpack the potential legal solutions and explain what courts are getting right and what they're getting wrong.
The ministerial exception
To understand religious hiring for non-ministers, it's important first to understand the key legal doctrine governing the hiring of ministers: the ministerial exception.
The ministerial exception is a First Amendment doctrine that protects religious groups from government interference in the selection of their "ministers"—broadly defined as employees who perform "vital religious duties." In Our Lady of Guadalupe School v. Morrissey-Berru, for example, a Catholic school dismissed a sixth-grade teacher for poor performance, and the teacher sued, alleging the real reason for her dismissal was age discrimination. The Supreme Court held that her lawsuit was barred by the ministerial exception, because she performed the "vital religious duties" of teaching religion classes, praying with students, and guiding their growth in the Catholic faith.
When the ministerial exception applies, it acts as an affirmative defense that bars any claim challenging a religious organization's selection, supervision, or control of its ministers. This includes claims of employment discrimination based on race, sex, national origin, age, or disability. It also includes tort or contract claims that challenge ministerial selection or control. But it applies only to ministers—employees who carry out important religious duties.
What about non-ministers?
But what about employees, like many secretaries or janitors, who don't perform important religious duties? What protections do religious groups have for choosing those employees?
Few cases have addressed this question. That's because, in most non-minister cases, there is no significant conflict between employment laws and religious practices. In most cases, non-ministers are let go for non-religious reasons—such as poor performance, personality fit, or budgetary needs. Such cases can be handled like any other employment dispute without entangling courts in religious matters.
A few cases have involved non-ministers let go for religious reasons—such as engaging in sexual conduct outside marriage or getting divorced and remarried contrary to church teaching. In those cases, the question becomes whether the religious reason is the real reason for the employment action or is instead a pretext for illegal discrimination (like age or sex discrimination). Some courts have allowed these pretext claims to go forward and treated them like any other employment dispute; others have held that these pretext claims impermissibly entangle courts in religious questions. But such cases have not been common.
Bostock changes the calculus
The Supreme Court's 2020 decision in Bostock v. Clayton County, however, has changed the calculus. Bostock held that the federal ban on employment discrimination based on "sex" also prohibits discrimination based on sexual orientation or transgender status. This creates a direct conflict between federal law and the religious hiring practices of thousands of religious organizations—many of which ask all their employees, including non-ministers, to abide by their traditional beliefs about sex and marriage.
For example, suppose a Catholic school dismisses a secretary because she entered a same-sex marriage in violation of Catholic teaching. Before Bostock, the secretary had no federal claim for employment discrimination. After Bostock, she does.
Note, too, how her new claim differs from a pretext case. In a pretext case, the secretary says, "You fired me because of my age (or other protected characteristic)," and the school denies it, saying, "No, we didn't. We fired you because you violated church teaching." The dispute is over the real reason for the firing.
In a Bostock case, by contrast, the secretary says, "You fired me because I entered a same-sex marriage," and the school says, "Yes, we did, because that violates church teaching." There is no dispute over the reason for the firing. The dispute is over whether the school can legally act on its religious beliefs.
This significantly raises the stakes of the church–state conflict. In a pretext case, the government effectively tells a religious group, "You're free to act on your religious beliefs if that is the real motivation for your action." In a Bostock case, the government tells a religious group, "We don't care if you're truly acting on your religious beliefs; acting on those beliefs is discriminatory and illegal."
Thus, absent a viable religious-freedom defense, Bostock makes it illegal for religious groups to make employment decisions based on certain core beliefs about sexuality and marriage. This, in turn, undermines the ability to form religious communities based on those shared religious beliefs. And this poses a serious challenge to religious freedom.
"Future cases"
Bostock itself acknowledged concerns that its holding "may require some employers to violate their religious convictions." But the Court said the relevant "doctrines protecting religious liberty" would have to be addressed in "future cases."
Those future cases have now arrived. In the last five years, there have been at least eighteen reported cases involving religious groups asking employees to adhere to their beliefs on sexual orientation or gender identity. At least thirteen of those cases have now hit appellate courts or will soon.
These include, for example, a high school that dismissed a substitute drama teacher who entered a same-sex marriage; a university that dismissed an IT apprentice who had a gender transition; a high school that dismissed a librarian who had a gender transition; and a homeless shelter that asks all its employees, from computer technicians to janitors, to agree with its religious views on marriage.
Lower courts have already resolved those cases inconsistently. (In fact, the four examples just listed were resolved in four different ways!) A circuit split seems inevitable.
Can religious groups require non-ministers to adhere to their beliefs about sexuality and marriage? Or will federal employment laws require religious groups to hire employees who reject their core beliefs?
My next few posts will preview the key statutory and constitutional defenses at issue in such cases—and likely to garner the Supreme Court's attention soon. Stay tuned.
