Ministerial Exception Part II

In my previous blog on the ministerial exception, I explained the basics of this judicially-created exception. In this blog, I take a more partisan view, and argue that the religion clauses do not justify the ministerial exception. To the extent that church-clergy relations are protected, they should be protected under the freedom of association guaranteed by the Free Speech Clause.

Does the Free Exercise Clause require the ministerial exception?

The simple answer is: not after Employment Division v. Smith. Employment Division v. Smith held that as long as a law is neutral and generally applicable, it does not violate the Free Exercise Clause even if it imposes a substantial burden on religion. Smith itself upheld a law that made illegal a religious sacrament. Since few would dispute that anti-discrimination laws such as the Americans with Disabilities Act are both neutral and generally applicable, Smith should defeat any free exercise justification.

Nonetheless, lower courts have uniformly argued that Smith only applies to individual free exercise claims and not institutional free exercise claims. The arguments for this distinction are not persuasive, and they can be understood as the lower courts’ attempt to limit the impact of the unpopular Smith decision. For example, courts cite to a line of Supreme Court cases addressing church property disputes as precedent for church autonomy. Yet they overlook the Supreme Court’s most recent church property case, Jones v. Wolf, which actually applies a “neutral principles of law” approach more in line with Smith than the older cases that deferred to church hierarchies.

Doesn’t the potential entanglement with religion mean the Establishment Clause requires the ministerial exception?

The Establishment Clause may be violated if a court were to independently evaluate a minister’s spiritual or theological qualifications. For example, the court would act beyond its competence if it were to hold that a church was wrong to fire a choir director for her choice of music because the music chosen was in fact perfectly suitable for Sunday services. However, it is a mistake to assume that resolving anti-discrimination cases will lead courts to substitute their judgment for that of the religious institution on spiritual and theological matters. To start, many discrimination suits do not present any religious questions. In addition, this fear overlooks a substantial body of anti-discrimination law that ensures that courts assess only matters well within their competence. In other words, when evaluating a claim that a professor was wrongfully denied tenure, courts will consider objective data, but they will not second-guess the employer about subjective professional qualifications.

Take the retaliation claim at issue in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In terminating Cheryl Perich, Hosanna-Tabor cited issues related to her health and its disability leave policy. No mention was made of any spiritual shortcomings. Therefore, as the Sixth Circuit concluded: “a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”

Are churches never immune from anti-discrimination suits?

Even though the religion clauses may not justify the ministerial exception, the freedom of association might shield religious organizations from some anti-discrimination claims brought by ministers. Proponents of the ministerial exception argue that religious organizations must be able to freely select their ministers and religious leaders. The freedom of association protects that choice: especially after Boy Scouts of American v. Dale, the freedom of association protects the right of all associations, religious and nonreligious, to choose leaders who will properly represent and convey the association’s message, even if it means violating anti-discrimination law. In Dale, the Supreme Court allowed the Boy Scouts to discriminate on the basis of sexual orientation on the grounds that gay Scoutmasters would undermine the Boy Scouts’ anti-homosexuality message.

At the same time, Dale makes clear that an association seeking immunity from a discrimination claim must have a message that would in some way be impaired by compliance with that anti-discrimination law. Thus, a church may assert immunity from a minister’s discrimination suit only if it first argues that its religious tenets require that discrimination. Religious organizations whose beliefs are consistent with anti-discrimination law cannot complain that compliance interferes with their expression. Unless Tabor-Hosanna argues that a disabled minister will undermine its religious message, Perich should be able to sue the religious school for violating the American with Disabilities Act.

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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.