Gordon College and the Future of the Ministerial Exception

47 Pages Posted: 22 Aug 2022

See all articles by Peter J. Smith

Peter J. Smith

George Washington University - Law School

Robert W. Tuttle

George Washington University Law School

Date Written: 2022

Abstract

In Gordon College v. DeWeese-Boyd, a social work professor at a religious college sued after she was denied promotion. The college asserted the “ministerial exception,” a judicially crafted and constitutionally grounded exception to the ordinary rules of liability arising out of the employment relationship between religious institutions and their ministers. Although the plaintiff had no distinctively religious duties, the college expected her (and all other faculty) to integrate the faith into her teaching and scholarship. The Massachusetts Supreme Judicial Court (SJC) held that this obligation, standing alone, was insufficient to qualify the plaintiff as a minister within the meaning of the exception. The U.S. Supreme Court denied the college’s petition for certiorari, but Justice Alito, joined by three other Justices, issued a statement respecting the denial. He criticized the SJC’s view of religious education, suggested that the mere duty to infuse the faith into teaching and scholarship was sufficient to qualify a professor as a minister, and expressed willingness to review the SJC’s decision after a final judgment. Nonetheless, DeWeese-Boyd’s claims may proceed to litigation.

Justice Alito’s statement is significant both for the scope of the ministerial exception—as applied to religious colleges and other employers—and for the future of the relationship between the Constitution’s Religion Clauses. Justice Alito’s capacious understanding of the ministerial exception—and his view that it is grounded primarily in the Free Exercise Clause, rather than the Establishment Clause—will likely leave little room for civil courts to adjudicate claims that assert wrongful treatment by religious institutions of ministerial employees. Equally important, Justice Alito’s view suggests a continued marginalization of the Establishment Clause in ways that will have effects far beyond the world of higher education.

Keywords: Ministerial exception, Establishment Clause, Free Exercise Clause, Religion Clauses, First Amendment, Constitutional Law, Church and state

Suggested Citation

Smith, Peter J. and Tuttle, Robert W., Gordon College and the Future of the Ministerial Exception (2022). GWU Legal Studies Research Paper No. 38, 2022, GWU Law School Public Law Research Paper No. 38, 2022, 47 Journal of College & University Law 1 (forthcoming), Available at SSRN: https://ssrn.com/abstract=4194988

Peter J. Smith (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
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United States
202-994-4797 (Phone)

Robert W. Tuttle

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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