Protecting Preachers from Prejudice: Methods for Improving Analysis of the Ministerial Exception to Title Vii

Abstract

Since the early 1970s, an increasing number of courts have held that religious organizations have an absolute right to treat core employees, or “ministers,” however they please without fear of being held accountable by secular courts. Though anti-discrimination legislation explicitly allows a religious institution to discriminate by hiring only ministers who practice the same religion as the hiring organization, such legislation prohibits both nonreligious and religious employers from engaging in racial discrimination, gender discrimination, or sexual harassment. Federal circuit courts uniformly grant immunity to religious institutions from these neutral laws, basing their decisions on the First Amendment religion clauses, but the constitutional foundation for this immunity has been severely undermined by the Supreme Court.

Instead of the current approach, which defers to religious organizations, this Comment argues that any right to church autonomy should be balanced against the government’s interest in enforcing anti-discrimination laws. The need for an appropriate balancing test is confirmed by recent lower court opinions that have struggled to justify a deferential approach in the face of employment decisions by religious institutions that violate federal law and lack any religious justification. After arguing for a more sound constitutional approach, this Comment ultimately proposes an amendment to Title VII that would protect ministers from non-religious discrimination while shielding religious organizations from intrusion on religious expression.