Academic journal article The Yale Law Journal

Should the Ministerial Exception Apply to Functions, Not Persons?

Academic journal article The Yale Law Journal

Should the Ministerial Exception Apply to Functions, Not Persons?

Article excerpt



Last year, in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court held that the First Amendment bars ministers from suing their religious employers under the employment discrimination laws. (1) Applying these laws to the ministerial employment relationship, the Court reasoned, would impermissibly infringe upon churches' freedom to select their representatives and control their internal affairs. The Court thus adopted the conclusion, widespread in the courts of appeals, that the First Amendment requires a "ministerial exception." In Chief Justice Roberts's words:

    The interest of society in the enforcement of employment    discrimination statutes is undoubtedly important. But so too is the    interest of religious groups in choosing who will preach their    beliefs, teach their faith, and carry out their mission. When a    minister who has been fired sues her church alleging that her    termination was discriminatory, the First Amendment has struck the    balance for us. The church must be free to choose those who will    guide it on its way. (2) 

The Chief Justice's conclusion remains controversial, (3) but this Note does not challenge its basic thrust--that the government cannot interfere in a church's selection of those who will carry out its religious mission. Rather, it considers whether Hosanna-Tabor, and the ministerial exception cases more generally, can fit into a refined analytical framework that better strikes the balance that the Supreme Court (rightly or wrongly) thinks the First Amendment requires.

The gist of my proposal is this: Hosanna-Tabor seems to treat the threshold question whether an employee is a minister--an inquiry that I call the ministerial determination--as an all-or-nothing proposition. A given plaintiff either is a minister, in which case the Constitution wholly bars her lawsuit, or she is not, in which case her suit proceeds like any other. That way of framing the inquiry might be plausible for the ministerial exception's core cases: ministers, rabbis, imams, and other "pastors of congregations who are the most obvious referent for 'minister.'" (4) The ministerial exception has come to apply to a much wider set of employees than paradigmatic ministers, however, (5) and here an all-or-nothing framework is less compelling. After all, courts generally agree that, in these latter cases, the ministerial determination turns not on the formalistic fact that a given employee is a minister, but on the functional fact that she acts ministerially. Yet how one acts, as opposed to what one is, is not necessarily all-or-nothing. Indeed, because the same employee may act ministerially in one context and nonministerially in another, it might be more appropriate to conceptualize the ministerial exception as a partial bar instead of a total one.

Put another way, in at least some cases, it might make sense to think of the ministerial exception as protecting a church's relationship with, and control over, particular functions, not particular persons. On this view, the exception would continue to foreclose those aspects of an employment discrimination suit that implicate an employee's religious job functions. But it would permit the same employees to proceed with a lawsuit that is cabined to their secular capacities.

Although Walter Dellinger, who argued Hosanna-Tabor on behalf of the respondent, has hinted in this direction, no court or commentator, to my knowledge, has proposed this sort of framework. (6) That is unfortunate. A ministerial exception that focuses on religious functions, not religious persons, could enable courts to further society's "undoubtedly important" interest in enforcing antidiscrimination laws while still fully vindicating the religious rights protected by the First Amendment. …

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