Religious Ministers and the Scope of Their Rights to Non-Discrimination
45 Pages Posted: 18 Nov 2021
Date Written: November 10, 2021
Abstract
The First Amendment is currently thought to bar ministerial employees from any recourse against their religious employer under a wide variety of non-discrimination statutes and other forms of legal protection. The typical critique of this state of affairs seeks to narrow the class of persons who count as ministerial employees. This paper focuses instead on an important, and peculiar, aspect of the ministerial exception doctrine. At present, the law generally prohibits any recovery by ministerial employees for employment discrimination by their religious employer even where the employer's reasons for the discrimination have nothing to do with any religious doctrine, belief, article of faith, or religious practice. And it is not clear whether the religious employer can freely waive this unduly broad immunity, even for the most laudable reasons. This Article criticizes this state of the law as unjustified.
Keywords: free exercise, establishment clause, ministerial exception, employment discrimination, church autonomy
JEL Classification: K10, K31
Suggested Citation: Suggested Citation