The Church-Clergy Relationship and Anti-Discrimination Law

Ecclesiastical Law Journal (Forthcoming)

Oxford Legal Studies Research Paper No. 71/2012

20 Pages Posted: 20 Nov 2012 Last revised: 4 Feb 2013

Date Written: November 19, 2012

Abstract

Should antidiscrimination norms apply to the relationship between a religious group and its clergy? In Hosanna-Tabor Evangelical Lutheran Church v EEOC the US Supreme Court affirmed the existence of a “ministerial exception” which bars discrimination claims by ministers of religion against their church. In 2005 the House of Lords had reached the opposite conclusion, ruling, in Percy v Board of National Mission of the Church of Scotland, that the decision to dismiss an ordained minister was not a spiritual matter falling outside the scope of secular law. This article examines the constitutional foundations of the ministerial exception, argues that Percy ignored important aspects of church autonomy and suggests that courts should consider creating a narrowly tailored rule exempting decisions to appoint or remove clergy from the scope of anti-discrimination law.

Keywords: employment discrimination, ministers of religion, freedom of religion, ecclesiastical law, First Amendment, Hosanna-Tabor Evangelical Lutheran Church v EEOC, Percy v Board of National Mission of the Church of Scotland

Suggested Citation

Hatzis, Nicholas, The Church-Clergy Relationship and Anti-Discrimination Law (November 19, 2012). Ecclesiastical Law Journal (Forthcoming), Oxford Legal Studies Research Paper No. 71/2012, Available at SSRN: https://ssrn.com/abstract=2178235

Nicholas Hatzis (Contact Author)

City, University of London ( email )

4 Gray's Inn Place
London, WC1R 5DX
United Kingdom

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