Religious Hiring and Church Autonomy

Does the church-autonomy doctrine extend to hiring decisions outside the ministerial exception?

Can a religious group legally fire a non-minister employee (like a secretary or janitor) for violating the group's beliefs about sex or marriage? As I've explained, this is an urgent question likely to reach the Supreme Court soon. And the most straightforward answer is to apply the plain text of Title VII's religious exemption—which says religious groups may limit employment to individuals who adhere to their particular religious beliefs, observances, or practices.

But Title VII's religious exemption won't resolve the question entirely. That's because employees can sue under state law, and some states have recently gutted their state-law religious exemptions. Thus, as I explain in my article, Religious Hiring Beyond the Ministerial Exception, courts will eventually have to decide if religious hiring decisions are also protected by the Constitution.

My article analyzes three potential constitutional protections: (1) the church-autonomy doctrine, (2) the freedom of expressive association, and (3) the Free Exercise Clause. Today, I'll focus on the first: church autonomy.

The Scope of Church Autonomy

Church autonomy is a hot topic. Multiple appellate judges have gone out of their way to write about it. Justices Alito and Thomas have, too. What is it?

The church-autonomy doctrine is a legal principle rooted in "the understanding that church and state are 'two rightful authorities,' each supreme in its own sphere." While this doesn't mean religious institutions are immune from civil laws, it does mean the First Amendment protects a certain sphere of autonomy in which the government is not permitted to intrude. This sphere is often described as encompassing the right of religious institutions to "decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."

The protection for "faith" and "doctrine" means civil courts cannot decide religious questions or make legal decisions based on religious doctrine.

The protection for "church government" means religious institutions have freedom to make and enforce rules for their internal governance. This includes deciding who can lead a religious organization, teach its doctrine, and perform its religious functions, all of which are protected under the ministerial exception. But the ministerial exception is only one "component" of protection for church government. Also protected are other "internal management decisions that are essential to the institution's central mission," such as decisions about "church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them."

The right to make and enforce rules for church membership is particularly longstanding and robust. Since 1872, the Supreme Court has held that civil courts "have no power to revise or question ordinary acts of church discipline, or of excision from membership." This means religious groups get to set qualifications for church membership and judge "the conformity of the members of the church to the standard of morals required of them." It also means disaffected members typically cannot sue for defamation or other torts based on acts of church discipline or statements made during church discipline. In short, the government cannot interfere in a church's decision about who is qualified to be a member.

Employment of Non-Ministers

My article argues that what is true of ordinary members is even more true of individuals employed to further a church's mission. The Supreme Court unanimously agreed this is true for employment of ministers. But other Supreme Court cases also extend this principle to non-ministers.

In Catholic Bishop, for example, the Supreme Court denied the National Labor Relations Board jurisdiction over "lay teachers" (non-ordained teachers of secular subjects like "physical education") in church-run high schools, reasoning that the Board's exercise of jurisdiction "would implicate the guarantees of the Religion Clauses." Similarly, in Amos, the Supreme Court allowed application of Title VII's religious exemption to a maintenance worker in a church-run gymnasium, noting that the exemption "alleviate[s] significant governmental interference with the ability of religious organizations to define and carry out their religious missions." Justice Brennan concurred, emphasizing that the "[c]oncern for the autonomy of religious organizations" requires respect for their right to "[d]etermin[e] that certain activities are in furtherance of an organization's religious mission, and that only those committed to that mission should conduct them."

In keeping with these decisions, several lower courts (see footnote 240) have applied the church-autonomy doctrine to bar employment lawsuits by non-ministers who were dismissed for violating church teaching.

 

 

The principle that emerges from these cases is the same as that in Catholic Bishop and Amos: Church autonomy protects a religious group's freedom to decide what activities are part of its religious mission and who is religiously qualified to undertake those activities—including as a non-minister. And if an employment-discrimination lawsuit would prevent a religious organization from requiring adherence to its religious occupational qualifications—whether the qualification is based on religious belief (you must be a Christian; you must be an Orthodox Jew) or religious conduct (you must refrain from sex outside marriage; you must refrain from non-kosher food)—it is barred by the church-autonomy doctrine.

Objections

There are two main counterarguments to this understanding of church autonomy. First, some courts have said that applying church autonomy to religious occupational qualifications for non-ministers "would render the ministerial exception superfluous."

But this objection misunderstands the relationship between the ministerial exception and the protection for religious occupational qualifications. The ministerial exception applies to only a narrow set of employees (ministers), but protects a broad range of employment decisions—including decisions not "made for a religious reason." The religious-occupational-qualification protection is different: It applies to a broader group of employees (including non-ministers), but a much narrower set of employment decisions—only those based on religious qualifications for employment. Thus, while the doctrines can sometimes overlap, they still have different scopes and perform different functions.

The second objection is that there are no principled, workable limits on this religious-occupation-qualification protection. I address this objection more fully in my article. But in a nutshell, I argue that the limits of this constitutional protection are similar to the limits of Title VII's religion exemption. First, the protection is limited to religious organizations. There is ample caselaw drawing a line between religious and nonreligious organizations in various contexts—such as under the ministerial exception, Title VII's religious exemption, and federal and state tax law. This caselaw tells us, among other things, that for-profit businesses likely don't count as religious.

Second, the protection is limited to employment decisions based on sincere, religious occupational qualifications. That means insincere (i.e., "faked") qualifications aren't a protected basis for an employment decision. Nor are qualifications invoked as a pretext to mask a different, discriminatory reason for the decision. Although there are constitutional limitations on a court's inquiry into sincerity and pretext, those issues are not completely off limits, and courts regularly address them in a variety of religious contexts.

Finally, having considered the outer limits of this protection, it is also important to consider heartland cases. Suppose, for example, Congress repealed Title VII's religious exemption—making it illegal for religious groups to hire employees based on "religion." Under this regime, the government could force a Baptist church, for example, to hire an atheist church secretary. Would such a regime violate church autonomy?

Of course it would. As the Supreme Court has said, church autonomy protects "internal management decisions that are essential to the institution's central mission." This includes defining the mission, deciding what activities advance the mission, and deciding that "only members of its community" can "perform those activities." If the government could force a Baptist church to hire atheists, the First Amendment would be slender reed indeed.

Conclusion

In short, church autonomy is not limited to the ministerial exception. It also includes the freedom of religious groups to establish and maintain religious qualifications for employment—including for non-ministers. This means that when religious groups face post-Bostock claims of sex discrimination by non-ministers, they can invoke not only Title VII's religious exemption but also the First Amendment's church-autonomy doctrine.

But the church-autonomy doctrine is not the only potential constitutional protection. Tomorrow's post will explore another: the First Amendment right of expressive association.