Should the Ministerial Exception Apply to Functions, Not Persons?

24 Pages Posted: 1 Apr 2013 Last revised: 25 Apr 2013

Date Written: April 1, 2013

Abstract

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court confirmed what the lower courts had been saying for some time: the First Amendment prohibits the application of the employment discrimination laws to the relationship between a church and its ministers. Despite Hosanna-Tabor’s significance, however, the so-called ministerial exception remains in flux. For one thing, it is still unclear who will be deemed a “minister” for purposes of the doctrine. The answer to that foundational question may be more complicated than it appears. Thus far, courts and commentators have assumed that ministerial status is binary; a given employee either is a minister (in which case the First Amendment completely bars her suit) or she is not (in which case her suit proceeds like any other). That way of thinking may make sense for the easy cases, but it fits uneasily with the wide range of positions that have been labeled ministerial by the lower courts. This Note accordingly suggests an alternative framework that more closely tracks the functional considerations that underlie the ministerial exception. In short, it argues that a revised exception — one that applies to ministerial functions, not ministerial persons — better strikes the balance between antidiscrimination values and religious liberty that the First Amendment requires.

Keywords: Hosanna-Tabor, ministerial exception, employment discrimination, First Amendment

Suggested Citation

Glickstein, Jed, Should the Ministerial Exception Apply to Functions, Not Persons? (April 1, 2013). Yale Law Journal, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2242966

Jed Glickstein (Contact Author)

Yale University - Law School ( email )

127 Wall St.
New Haven, CT 06511
United States

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
82
Abstract Views
653
rank
327,482
PlumX Metrics