Disentangling Religion and Public Reason: An Alternative to the Ministerial Exception

Abstract

According to the US Supreme Court, the First Amendment bars application of antidiscrimination law to the employment relationship between a religious organization and its “ministers.” This “ministerial exception” has permitted religious organizations to fire employees for being Polish, reporting sexual harassment, having breast cancer, and many other reasons bearing no discernible connection to religion. Proponents of the exception focus on the private and voluntary aspects of ministerial employment, arguing that the state should not interfere in intimate matters such as who ministers to the faithful. But this focus overlooks how antidiscrimination law insulates employees’ exercise of basic liberties—such as marital freedom, sexual autonomy, and religious freedom itself—from employer control and helps secure equal membership in society. By granting religious employers free rein to discriminate, the ministerial exception treats employers’ liberty interests as more important than the liberty and equality interests of ministerial employees. The exception thus conflicts with liberal democracy’s basic commitments to equal liberty and social equality.

To offer a way forward, this Article develops a theory of meaningful work to support an alternative to the ministerial exception that would permit religious organizations to hire like-minded employees, but only when doing so would not subvert the purposes of employment discrimination law. Such an “authenticity exception” can be implemented without state entanglement in religion by distinguishing the inherently religious issue of what makes work religious from the public issue of whether a limitation on someone’s rights is supported by public reasons—reasons that we could all accept as free and equal members of society. It then illustrates the authenticity exception through a similar exception in Canadian law and revisits ministerial exception cases to show how the authenticity exception better closes the gap between religious liberty and exempted discrimination.

Keywords: religious freedom, freedom of association, constitutional law, ministerial exception, First Amendment, employment law, antidiscrimination law, civil rights, comparative law