FedSoc Blog

DOJ Asks High Court to End Ministerial Exception in Employment Law


by Justin Shubow
Posted October 05, 2011, 9:10 AM

In the WSJ, Michael McConnell draws attention to an upcoming Supreme Court case regarding the "ministerial exception" in employment discrimination law.  For 40 years, lower courts have held that the First Amendment forbids the government from deciding who may be a religious minister--despite the fact that federal statutes outlawing employment discrimination based on race, sex, age, and disability contain no express exception. 

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court will address the issue for the first time.  The particular question at hand is: Who counts as a minister? 

The facts are that a commissioned minister who taught secular subjects and led chapel devotions at a small Lutheran elementary school was replaced by a substitute after she fell ill.  Wanting to return to the classroom in the middle of the year, she threatened to sue the school, which led to a falling out in which the congregation voted to withdraw her "call" to the ministry, thus making her ineligible for the job. She subsequently sued the school under the Americans with Disabilities Act with the support of the Equal Employment Opportunity Commission.

While the Supreme Court has been asked to determine under what circumstances the ministerial exception ought to apply, McConnell is shocked to find that:

the Obama Justice Department has now asked the court to disavow the ministerial exception altogether. This would mean that, in every future case, a court--and not the church--would decide whether the church's reasons for firing or not hiring a minister were good enough.

In response, McConnell notes:

Is a secular court to decide, for example, whether confining Catholic priests or Orthodox rabbis to males is a correct interpretation of scripture, or merely a vestige of outmoded and stereotypical bias?

James Madison famously declared that the civil magistrate is not a "competent Judge of Religious truth."

Contrary to the DOJ's position, McConnell quotes a decision Justice Sotomayor wrote as a lower court judge:

"Federal court entanglement in matters as fundamental as a religious institution's selection or dismissal of its spiritual leaders risks an unconstitutional trespass on the most spiritually intimate grounds of a religious community's existence."


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