Ministerial Exception Part II

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7 Responses

  1. Joe says:

    In the upcoming case, a claim was made that she failed to utilize the Synod’s dispute resolution process, thus a religious question arose.

  2. Perry Dane says:

    FWIW: For my take on the difference between free exercise and religious institutional autonomy, see “‘Omalous’ Autonomy”, 2004 BYU L. Rev. 1715, available at

  3. Caroline Mala Corbin says:

    Hi Perry! Thanks for adding your voice to the debate.

    The Sixth Circuit held that this claim was made for the first time after she was fired: “none of the letters that Hosanna-Tabor sent to Perich throughout her termination process reference church doctrine or the LCMS dispute resolution process.” Reading the facts, it looks like any failure to abide by their dispute resolution process mostly involved Perich’s unwillingness to resign when asked to. Because Perich did not resign and insisted on her rights under the ADA, she was fired.

    But even assuming she had failed to use a dispute resolution process, does that fact turn her ADA claim into a religious question? What exactly is meant by a “religious question”? If defined too broadly, everything the church does could be absolutely immune from secular laws. It is for this reason that the courts do not automatically defer to a religious entity when deciding whether an employee is a religious employee/minister covered by the ministerial exception. Otherwise, a religious institution could characterize everyone as a minister, and no employee could ever sue a church, religious school, religious hospital, or other religious entity for violating employment laws. For Establishment Clause purposes, a “religious question” is one requiring the courts to decide a religious truth such as resolving a theological dispute or evaluating the quality of religious teaching. Those issues are beyond a court’s competence, and the Establishment Clause bars the courts from resolving them. Adjudicating this retaliation claim, however, does not seem to present any such religious question.

  4. Joe says:

    I appreciate the reply. I will assume a case where the resolution issue is not in dispute, that is, the argument is made in timely fashion. As it will be in some cases.

    I reckon a “religious question” is a term of law that has to be decided upon. Where to draw the line as to “minister” sounds tricky, noting (as your longer article did) it has been defined rather narrow by various courts.

    And, it seems to me that in some questions who a “minister” is could be a “theological dispute.” Perhaps, only “ministers” can enter a church, even to clean it, or “teach” in religious schools, even secular subjects. Or so forth. I’m not saying total immunity is the result. Just that it’s complicated.

    The same applies to the “dispute resolution” issue. It very well might be that a religion considers a teacher a “minister” of the faith, the school’s overall mission being religious. This is after all why many do not want state funds to go there, even in some cases for what seems like secular reasons (see various SC opinions by the likes of Souter or Brennan or Stevens). Dispute resolutions there would involve “religious” questions.

    Thus, we are left with compelling interests. But, your article cites race and sex there. Disability is at issue here, and a lower standard is in place under current doctrine. Would that trump religious associational rights? The argument that just because most of the day, she taught secular subjects seems a questionable way to avoid the question. But, I will leave it there.

  5. Joe says:

    “defined rather narrow” actually should be “broadly” … resulting in the open-ended religious discretion your comments suggests is problematic.

  6. Tom Berg says:

    Prof. Corbin, I’ve posted a response to yours at It’s a little long to paste here.