When Big Brother Plays God: The Religion Clauses, Title VII, and the Ministerial Exception

32 Pages Posted: 26 Jun 2007

See all articles by Joshua D. Dunlap

Joshua D. Dunlap

Pierce Atwood LLP; Notre Dame Law School


The ministerial exception arises from a clash of two fundamental interests. One fundamental interest, embodied in statutes such as Title VII, is the principle of non-discrimination. The other fundamental interest, enshrined in the Religion Clauses, is freedom of religion. These two interests conflict when aggrieved employees or prospective employees bring lawsuits against churches under Title VII. After all, the application of Title VII to church employment decisions might burden the free exercise of religion or constitute a government establishment of religion. This conflict has required the courts to determine whether the Religion Clauses mandate a "ministerial exception" to Title VII that would exempt churches from the reach of the anti-discrimination statute. This article sets out a justification for the ministerial exception based upon three major historical factors. First, early state constitutions explicitly guaranteed church autonomy in ministerial employment decisions. These guarantees demonstrate that that the framers understood the importance of ministerial employment decisions to the exercise of religious liberty. Second, the "theological rationale" underlying the Religion Clauses shows that one of the primary purposes of the Free Exercise Clause is protecting the church from interference by the state. One aspect of this protection is the restriction upon the state's ability to interfere with the selection of church employees. Third, the writings of James Madison suggest that the Religion Clauses protect church autonomy by establishing a jurisdictional division between religion and government. This jurisdictional division means that civil government does not have the authority to regulate religious matters such as the selection of ministers. The confluence of these three relevant aspects of the history of the First Amendment establishes the historical legitimacy of the ministerial exception to Title VII.

This article also considers one significant objection to the ministerial exception. Scholars have criticized the ministerial exception by arguing that the Supreme Court's "neutral principles of law" cases have undermined the church autonomy doctrine that supports the ministerial exception. However, this article suggests that the "neutral principles of law" cases are inapplicable in ministerial exception cases. While church property decisions may be amenable to resolution through "neutral principles of law" analysis, employment discrimination decisions are not. Accordingly, the Supreme Court's church autonomy cases should govern, preserving churches' authority to select employees without government interference.

Keywords: Ministerial exception, Title VII, church autonomy, neutral principles of law, Free Exercise Clause, Religion Clauses, religious liberty

JEL Classification: K19

Suggested Citation

Dunlap, Joshua D., When Big Brother Plays God: The Religion Clauses, Title VII, and the Ministerial Exception. Notre Dame Law Review, Vol. 82, 2005, Available at SSRN: https://ssrn.com/abstract=980565

Joshua D. Dunlap (Contact Author)

Pierce Atwood LLP ( email )

Merrill's Wharf
254 Commercial Street
Portland, ME 04074
United States

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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