Religious Hiring: What Courts Should Do

Courts don't need to stretch the ministerial exception to cover every case.

My article, Religious Hiring Beyond the Ministerial Exception, argues that religious groups have six potential legal defenses when they fire a non-minister (like a secretary or janitor) for violating the group's beliefs about sex or marriage. Some defenses are statutory, like Title VII's religious exemption. Others are constitutional, like the church-autonomy doctrine or the freedom of expressive association.

With several defenses to choose from, how should courts resolve these cases? In today's post, I'll first explain and critique how courts are currently addressing these cases—namely, by expanding the ministerial exception to apply to all of them. I'll then argue that some cases should be resolved differently—by not shying away from defenses like Title VII's religious exemption and church autonomy, which are specifically tailored to a religious group's interest in maintaining religious qualifications for employees.

What Courts Are Doing

Since the Supreme Court's decision in Bostock, federal circuit courts have resolved four sex-discrimination claims by employees who were dismissed for violating a religious group's teachings on marriage. All four cases reached the same result: The courts applied the ministerial exception and declined to address alternative defenses. But in three of those cases, one judge concurred, arguing that the claims were also barred by Title VII's religious exemption. (Disclosure: I helped represent the defendants in all four cases.)

The Fourth's Circuit's decision in Billard v. Charlotte Catholic High School is illustrative. The plaintiff there was a substitute English and drama teacher who was dismissed from a Catholic high school for entering a same-sex marriage. The district court concluded that he had minimal religious duties and therefore wasn't a minister. He taught "purely secular subjects," had no "religious training," had no special title, and "was not required to be a Catholic or even a Christian to hold his post." On top of that, the school stipulated it wouldn't assert the ministerial exception as a defense. (I was not representing the school at the time.)

The briefing on appeal focused on alternative defenses—Title VII's religious exemption, church autonomy, and expressive association. But the Fourth Circuit ruled for the school based on the ministerial exception. Writing for the majority, Judge Harris acknowledged that the school had "waived" the ministerial exception, and that courts ordinarily "resolve statutory defenses" (like Title VII's religious exemption) "before constitutional ones" (like the ministerial exception). Nevertheless, she held that the ministerial exception is a "structural" protection rooted in the "separation of powers" that can't be waived, and that resolving that constitutional question was "more straightforward" than addressing other defenses.

On the merits, the court held the teacher was a minister because: (1) the school asked all employees to model the Catholic faith; (2) the teacher began each class with prayer; (3) the teacher was supposed to conform his English and drama instruction to Christian thought; and (4) "we deal here with a teacher," and "teachers are different." This holding effectively extends the ministerial exception to all teachers at many religious schools and "may be," as one commentator noted, "the single broadest application of the ministerial exception to date."

Judge King concurred in the judgment only, explaining that the majority had "strayed from settled principles of the constitutional avoidance doctrine" by addressing the constitutional ministerial exception before statutory defenses, and that he would rule for the school "solely" under a "straightforward reading" of Title VII's religious exemption.

What should we make of this ruling? I agree with the majority that the ministerial exception is structural, unwaivable, and covers the teacher in that case. But that doesn't explain why the majority relied on the ministerial exception instead of other defenses like Title VII's religious exemption—particularly when the school waived that the ministerial exception, didn't develop the factual record on the teacher's duties, and didn't brief the issue on appeal. Yet the Fourth Circuit not only excused the waiver but also issued one of the broadest ministerial exception rulings ever. Why?

As I explain more fully in my article, Billard illustrates an old proverb: to a man with a hammer, everything looks like a nail. Courts are used to the ministerial exception. It is the subject of two Supreme Court decisions and has been far more heavily litigated than alternative defenses. Thus, it is tempting to view every religious hiring case through the ministerial-exception lens. But while Billard's ministerial-exception ruling was correct, that doesn't mean the ministerial exception was the most fitting legal tool for the job.

The ministerial exception is focused on a religious group's "authority to select and control who will minister to the faithful" and is blind to whether any given employment decision is "made for a religious reason." But the reason the school has a strong defense in Billard is not just because the substitute drama teacher ministered to the faithful but also because the school had a religious reason for the employment decision: the teacher publicly rejected a core tenet of the Catholic faith, which the school viewed as religiously disqualifying. Unlike the ministerial exception, other legal tools are specifically designed to protect religious groups' interest in maintaining religious qualifications for employment. And courts should not hesitate to use them.

What Courts Should Do

What legal tools are most closely tailored to a religious group's interest in maintaining religious qualifications for employment? I argue there are two: Title VII's religious exemption and the church-autonomy doctrine.

As I have explained, Title VII's religious exemption specifically protects "the employment of individuals of a particular religion"—with "religion" defined broadly to include "all aspects of religious observance and practice, as well as belief." That is, religious groups can require employees to conform to the group's beliefs, observances, and practices. This provides a tight fit between the legal doctrine employed (the exemption) and the legal interest to be protected (maintaining religious qualifications for employees). It also allows courts to resolve these kinds of cases on statutory, rather than constitutional grounds.

Where this sort of statutory exemption is unavailable—as in some states that have gutted their state-law religious exemptions—the constitutional church-autonomy doctrine provides a similar fit. As I explained in another post, just as the church-autonomy doctrine allows religious groups to establish religious qualifications for membership, it also allows those groups to establish religious qualifications for employment. The constitutional protection for religious occupational qualifications asks, first, whether the employer is religious, and, second, whether the employment decision was based on an employee's religious qualifications. If so, the claim is barred by church autonomy. In that sense, it closely parallels Title VII's religious exemption.

Given these two protections, courts needn't stretch the ministerial exception to cover cases where employees may have less-than-robust religious duties but have been dismissed for rejecting a religious group's religious beliefs or standards of conduct.

Conclusion

Where does all of this leave us? To date, the ministerial exception has proven sufficiently flexible to resolve post-Bostock conflicts between religious hiring practices and federal employment law. But it is only a matter of time before courts (and likely the Supreme Court) will have to address alternative defenses in cases involving non-ministers. Some of those defenses—like Title VII's religious exemption and the church-autonomy doctrine—are even better suited than the ministerial exception to protecting religious groups' interest in maintaining religious qualifications for employment.

That said, the main lesson I hope readers will draw from this discussion (and my article) is not that one or more of these potential legal defenses is a "silver bullet" that resolves all post-Bostock religious hiring cases. Rather, the main lesson is that religious groups have several strong, overlapping, and mutually reinforcing legal defenses, all of which point to the same conclusion: religious groups have the freedom to maintain religious qualifications for their employees.