Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law

Abstract:     
This Article critiques the constitutional underpinning of the ministerial exemption, which grants religious organizations immunity from anti-discrimination suits brought by ministerial employees. These employees, who range from parochial schoolteachers to church music directors, cannot assert Title VII sex or race discrimination claims against their religious employers—regardless of whether or not religious belief motivated the discrimination. Lower courts and commentators assert that the right of church autonomy created by the religion clauses requires this result, but the Supreme Court has never blessed (or rejected) it. This Article argues there is no place for the ministerial exemption under the Supreme Court's current religion clause jurisprudence. The free exercise clause neither guarantees religious organizations autonomy in their internal affairs nor shields them from neutral laws of general applicability like Title VII. And while the establishment clause forbids the courts from resolving theological or spiritual disputes, this Article rebuts the unexplored assumption that adjudicating a Title VII suit requires courts to evaluate a plaintiff's spiritual qualifications. The Article also briefly explores freedom of expressive association as an alternative justification for the ministerial exemption and concludes that, to the extent it applies at all, it only protects those employers whose religious doctrine requires discrimination.

Number of Pages in PDF File: 74

Keywords: employment, exemption, discrimination, ministerial exemption, ministerial exception, free exercise, establishment clause, church autonomy, Title VII

Accepted Paper Series