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.