By: Lauren P. Heller
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 VII of the Civil
Rights Act of 1964, which prohibits employment discrimination on
the basis of race, sex, religion, or national origin.
Despite the general applicability of Title VII to the employment
practices of religious organizations, the majority of the circuit
courts have refused to adjudicate the employment discrimination
claims of clergy members, creating a “ministerial exception” to
Title VII. 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.”
Ambiguity regarding the nature of the religious freedoms
protected by the First Amendment has left ministerial employment
discrimination claims stuck in a constitutional
quagmire. 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. First
Amendment ambiguity is also evident in the use of different
constitutional justifications for the exception. 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 exception and
increased public scrutiny of exceptions which exempt religious
organizations from generally applicable federal laws 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.