In Defense of the Ministerial Exception

72 Pages Posted: 13 Jul 2011 Last revised: 28 Sep 2016

Christopher C. Lund

Wayne State University Law School

Date Written: December 20, 2011

Abstract

Over the past forty years, courts have developed the “ministerial exception,” a legal doctrine which immunizes churches from employment-based claims brought by their clergy (and others with significant religious duties). The lower courts all recognize this exception. But its contours remain fiercely disputed. And the Supreme Court has never clarified its boundaries or even confirmed that it exists at all.

This article defends the ministerial exception and tries to flesh out its various rationales in a systematic and comprehensive fashion. It suggests that the ministerial exception may be profitably thought of not as a single indivisible whole, but rather as the overlap of several different discrete immunities, each backed by different justifications. It divides the ministerial exception into three components - a relational component, a conscience component, and an autonomy component. Examining each component separately, this piece tries to offer a richer explanation as to why we have this thing called the ministerial exception.

This piece comes at an opportune time. Nearly forty years after the birth of the ministerial exception in the lower courts, the United States Supreme Court has finally agreed to hear its first ministerial exception case. The case is EEOC v. Hosanna-Tabor, and the Court will have to decide both whether the ministerial exception exists and what it covers. After looking at the ministerial exception in general, this piece concludes by offering specific thoughts on the issues presented in Hosanna-Tabor.

Keywords: Free Exercise Clause, Establishment Clause, religion, law, constitutional law, First Amendment, church autonomy, Employment Division v. Smith, EEOC v. Hosanna-Tabor, ministerial exception

Suggested Citation

Lund, Christopher C., In Defense of the Ministerial Exception (December 20, 2011). North Carolina Law Review, Vol. 90, p. 1, 2011; Wayne State University Law School Research Paper No. 10-28. Available at SSRN: https://ssrn.com/abstract=1883657

Christopher C. Lund (Contact Author)

Wayne State University Law School ( email )

471 Palmer
Detroit, MI 48202
United States
(313) 577-4046 (Phone)
(313) 577-9016 (Fax)

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