Modifying the Ministerial Exception: Providing Ministers with a Remedy for Employment Discrimination under Title VII While Maintaining First Amendment Protections of Religious Freedom

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INTRODUCTION

Although the foundation of every religious organization is its doctrine, the clergy are the pillars upon which the message of a religious organization ultimately rests. Ideally, every religious organization would treat its clergy members with respect, fairness, and generosity. In reality, however, ministerial employees often face the same types of employment discrimination as their secular counterparts. Generally, an employee who has been subjected to discrimination in the workplace may bring an action against his or her employer under Title VlI of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, sex, religion, or national origin.1

Despite the general applicability of Title VII to the employment practices of religious organizations,2 the majority of the circuit courts have refused to adjudicate the employment discrimination claims of clergy members, creating a "ministerial exception" to Title VII.3 This exception arose in response to concerns that the application of Title VII to a religious organization's ministerial employment decisions would violate the organization's rights under the First Amendment, which provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."4

Ambiguity regarding the nature of the religious freedoms protected by the First Amendment has left ministerial employment discrimination claims stuck in a constitutional quagmire.5 Although the majority of circuits have adopted a ministerial exception in order to avoid the difficulty of applying First Amendment protections to ministerial Title VII claims, the lingering effects of First Amendment ambiguity are inescapable. The breadth of the ministerial exception differs among the circuits, depending upon a court's determination of the religious freedoms protected by the First Amendment.6 First Amendment ambiguity is also evident in the use of different constitutional justifications for the exception.7 Consequently, both the foundation and the scope of the ministerial exception vary from circuit to circuit.

Although the exception is alive and well in many circuits, the tides are beginning to turn. Recent attempts by the Second and Third Circuits to move away from the ministerial exception8 and increased public scrutiny of exceptions exempting religious organizations from generally applicable federal laws9 suggest that the Supreme Court may have occasion to rule on the ministerial exception in the near future. In the meantime, the circuits are desperately in need of a uniform and systematic way of applying First Amendment protections in the context of ministerial employment discrimination cases.

The purpose of this Note is threefold: first, to provide a comprehensive understanding of the current use of the ministerial exception in the circuits; second, to clarify the First Amendment issues implicated in the adjudication of ministerial employment discrimination claims; and third, to provide a test that will allow for a consistent and accurate application of the First Amendment to Title VII claims against religious organizations.

Part I examines the collision of Title VII and the First Amendment in the context of ministerial employment discrimination, and the creation of the ministerial exception in response to this conflict. In addition, Part I provides an overview of the two basic arguments employed by the circuits in support of the ministerial exception, and briefly explores how the Supreme Court decision in Employment Division, Department of Human Resources v. Smith10 may influence the future application of the ministerial exception. Part II analyzes how the exception has been used in the circuits, highlighting: (1) the particular form of the exception adopted; (2) justifications for the exception; and (3) application of the exception post-Smith. Part III looks at the recent attempts by the Second and Third Circuits to move beyond the ministerial exception. …