3rd place — 2024 FFRF Law Student Essay Contest: Alexander Worrell
By Alexander Worrell
I propose a 28th Amendment to the U.S. Constitution which reads as follows: “No law shall, on account of its religious status, afford any special rights or privileges to religious institutions not afforded to secular institutions.” Though this should already be implicit in a plain reading of the Establishment Clause, the explicit language of this new amendment would emphasize the principles already enumerated in the Establishment Clause and bring the Establishment and Free Exercise Clauses (the “religion clauses”) back into balance. The First Amendment to the Constitution holds, in pertinent part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
But a troubling recent trend seeks to undermine the protections established by the religion clauses — the so-called “ministerial exception,” which has been fully embraced by recent U.S. Supreme Court decisions. The ministerial exception is an affirmative defense to liability under which a “ministerial employee” is barred from bringing certain suits against their religious employer, typically those involving employment disputes under Title VII of the Civil Rights Act of 1964. As it currently exists, the ministerial exception essentially ignores the Establishment Clause in favor of a broad reading of the Free Exercise Clause. The ministerial exception affords rights and privileges to religious institutions that are far too broad in scope and accordingly undermines the protections that the religion clauses seek to create.
A brief history
The Supreme Court first embraced the ministerial exception in Hosanna-Tabor Evangelical Church and School v. E.E.O.C. There, the petitioner fired one of its teachers, Cheryl Perich, after she took disability leave. Perich filed a complaint under the Americans With Disabilities Act with the E.E.O.C., who then brought suit against the petitioner. The case made its way to the Supreme Court, where the court curiously held that Perich’s ADA claim was barred against her religious employer because Perich was one of the petitioner’s ministers. In reaching its decision, the court emphasized that the religion clauses purportedly empower churches with near-absolute authority to “select and control” their ministerial employees because the imposition of liability against a religious organization is tantamount to imposing a “penalty on the church for terminating an unwanted minister.” That power, therefore, prevents courts from deciding any “employment discrimination suit brought on behalf of a minister.”
The scope of the ministerial exception evidently expanded dramatically in Our Lady of Guadalupe School v. Morrissey-Berru, decided eight years later. There, two teachers at two different Catholic schools brought claims under the Age Discrimination in Employment Act and Americans with Disabilities Act, respectively. Although one plaintiff was discharged shortly after requesting leave for breast cancer treatment and the other was elderly, the court declined to reach the merits of either claim because it held that both plaintiffs were ministers. The scope of the ministerial exception was then greatly broadened when the court noted that “courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.” No longer are mere ministerial employment decisions shielded from judicial scrutiny. Rather, courts are broadly prohibited from probing “employment disputes” among any employee holding an “important position” within a religious institution.
Read together, Hosanna-Tabor and Morrissey-Berru stand for several propositions. First, the ministerial exception operates as an affirmative defense to an “otherwise cognizable claim.” That is, the ministerial exception prevents plaintiffs from reaching the merits of the claim regardless of whether they could otherwise prevail on the merits. Second, “ministerial employee” is defined very broadly — nearly any employee who works for a church could conceivably be a ministerial employee under these two decisions. In dicta, the Morrissey-Berru court further noted that an employee needn’t even be a practicing adherent of the religious organization to be that organization’s “minister,” because a court deciding whether an aggrieved plaintiff practices the organization’s religion would risk government “entanglement” in the organization’s affairs.
Finally, ministerial employees are categorically barred from bringing suit against their employees when the resolution of the claim would require judicial scrutiny of the religious employer’s ability to “select and control” its ministerial employees — this remains true regardless of whether the adverse employment action was made for a religious reason. The ministerial exception applies even when the plaintiff alleges discharge for reasons explicitly prohibited by Congress, including age discrimination, disability discrimination and retaliation, and Title VII employment discrimination suits broadly. The federal circuit courts have used the ministerial exception to bar lawsuits alleging age and disability discrimination, discrimination based on sexual orientation, racial discrimination, hostile work environment claims, and claims arising under the Equal Pay Act. Evidently, the ministerial exception therefore requires courts to turn a blind eye to violations of federal anti-discrimination law in the name of “religious freedom,” but in doing so runs afoul of the Establishment Clause by respecting an establishment of religion.
Exception is incompatible
The First Amendment prohibits any “law respecting an establishment of religion,” but this is precisely the outcome created by the ministerial exception. The ministerial exception plainly allows religious institutions to escape liability for conduct that would be otherwise prohibited by secular institutions. In doing so, the court has essentially bestowed a doctrinally sanctioned privilege upon religious institutions by virtue of their religious status. The policy underlying the ministerial exception is the recognition of a religious institution’s right to “select and control” its own ministers — that is, the idea that “the First Amendment protects the right of religious institutions to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” But, at best, the ministerial exception tangentially serves this goal. Employment discrimination lawsuits do not hinder a religious institution’s ability to decide matters of its own “government” any more than it would for a secular institution. In both cases, there is a legitimate legal restraint on an employer’s ability to discharge an employee. But there is no legitimate reason why religious institutions should be entirely immune from scrutiny for their ministerial employment decisions when a prohibited, discriminatory motive is alleged.
Rather, the use of the ministerial exception amounts to a blind eye in the enforcement of federal anti-discrimination law. Religious institutions can always discharge ministerial employees for legitimate, nondiscriminatory reasons, just as any other institution may do as well. But the ministerial exception’s categorical protection of all employment decisions, including those that are prohibited by law, is a protection that is far too broad in scope and is not in accordance with the First Amendment’s Establishment Clause. A court’s inquiry should not focus on the degree of “selection and control” of purported ministers that it feels a church deserves, but rather should focus its inquiry on the ultimate question — that is, whether the institution treated its employee in a manner that the law has forbidden. Evidently, Hosanna-Tabor and Morrissey-Berru would have been decided differently under the proposed 28th Amendment. In both cases, judgment was entered against the plaintiffs entirely because the ministerial exception barred their claims — all plaintiffs were ministerial employees bringing employment dispute claims. The proposed 28th Amendment’s prohibition on differential rights and privileges afforded to religious and secular institutions would bar courts from using the ministerial exception because the ministerial exception plainly affords privileges to religious institutions. In the absence of the ministerial exception, the court would have reached the opposite results in these cases. This is the best outcome because the ministerial exception’s categorical bar on employment discrimination suits by ministerial employees against their religious employers is plainly incompatible with the Establishment Clause’s prohibition on laws “respecting an establishment of religion.”
Conclusion
As it currently exists, the ministerial exception requires courts to turn a blind eye to violations of federal anti-discrimination law in the name of “religious freedom.” Accordingly, the ministerial exception provides religious institutions with privileges not provided to their secular counterparts. The proposed 28th Amendment should be enacted because it would no longer provide courts with the discretion to treat religious and secular institutions differently with regard to liability for prohibited conduct. Correcting this problem would help to restore the balance between the First Amendment’s Religion clauses by empowering the Establishment Clause and reigning in the current court’s emphasis on the Free Exercise Clause.
Alexander Worrell is a student in the West Virginia University College of Law’s Class of 2025. He graduated summa cum laude from West Virginia University in 2022 with a degree in philosophy and political science. He is passionate about causes promoting the secularization of the United States and intends to use his law degree accordingly.
