Is the "ministerial exception" a good idea?
Marci Hamilton discusses the issue at FindLaw:
The Supreme Court has not yet addressed an important First Amendment religion doctrine that has percolated in the lower federal courts and in the state courts for years — to the point that courts seem to be putting their finishing touches on the nuances of the doctrine. This doctrine establishes the so-called "ministerial exception" — an interpretation of the First Amendment’s Religion Clauses that requires the courts to avoid interfering with religious organizations’ employment decisions regarding clergy and other religious employees who are involved in religious doctrine.
As I have written in past columns such as this one, this is a doctrine that pits anti-discrimination laws (that is, Title VII, the Americans with Disabilities Act, and their state counterparts) against religious-liberty claims. There is now a significant split among the courts regarding several aspects of the doctrine, and, therefore, it is time for the Court to weigh in. With federal appellate courts settling into their particular interpretations, we are seeing that the same claims can get significantly different treatment depending on the circuit.
Title VII Forbids Employment Discrimination But Not When the Ministerial Exception Applies
Title VII has an exception for religious groups that permits them to discriminate on the basis of religious belief. By contrast, there is no exemption to Title VII’s prohibitions on race, national origin, or gender discrimination. The decision to create the belief exemption but to keep the other civil rights laws in place was intentional. But courts have been uncomfortable when dealing with the question of who can be a member of the clergy. Churches do not enjoy autonomy from the law, but the Establishment Clause does forbid courts from determining religious beliefs and that extends to a prohibition on judicial oversight of the choice of clergy. In order to stay out of that quagmire, the courts have crafted the ministerial exception, which is a First Amendment doctrine that creates exceptions to Title VII for religious entities, including houses of worship, religious organizations, and schools.
The exception’s core idea is that the courts should not be in the business of second-guessing religious doctrine, belief, or the qualifications of clergy. Religious organizations have pushed to expand the latter category beyond official clergy to "ministerial employees"– which means that courts have had to define what constitutes a religious employee.
To my knowledge, no ministerial-exception case has ever held that a religious group can discriminate on the basis of race. Most of the cases deal with claims of gender discrimination, though claims of age and disability discrimination also have been raised.
The typical case involves a woman who experiences gender discrimination or sexual harassment (sometimes in the form of a hostile work environment). These claims are often paired with a retaliation claim — that is, a claim that the religious employer took action against the plaintiff after she complained about the discriminatory behavior.
One Notable Case: Lynette Petruska’s Suit Against Gannon University
A classic example involved Lynette Petruska and her employer Gannon University, a Roman Catholic institution in Erie, PA. Petruska was the University chaplain for which there was no gender prerequisite. The record before the court indicated that she was fired on the basis of invidious and arbitrary gender discrimination…
