Volume 20
Issue 1
Winter '22

Splitting the Difference: A Bright-Line Proposal for the Ministerial Exception

Written By: Joseph Capobianco

Abstract

Last term, for the second time in a decade, the Supreme Court weighed in on the so-called “ministerial exception.” The ministerial exception derives from both the Free Exercise Clause and the Establishment Clause. It permits religious employers—whether Catholic schools or Jewish nursing homes—to fire their employees for any reason, even reasons prohibited by antidiscrimination laws. The exception therefore straddles two independent, powerful interests: the interests reflected in the First Amendment for religious freedom, and the interests reflected in the antidiscrimination laws.

The primary problem for courts in applying this exception is defining who is a minister. Most people likely would agree a Catholic priest is a minister and the Catholic church should have the right to decide that its priests will all be male. Similarly, most would likely agree that a janitor is not a minister and the Catholic church should not have the right to decide that all its janitors be male. But what about other employees like the nurse at a Jewish hospital? Or the professor at a Christian university? Or the press secretary for the local Catholic church?

This Note contributes by proposing a bright-line test to answer these questions. Law review articles, lower courts, and the Supreme Court have put for-ward their own tests. But each of these tests is functional in nature or deferential to religious entities. This Note analyzes these tests and finds them unable to protect the powerful interests at stake in the ministerial exception. This Note therefore argues for a bright-line test. It argues that employers and employees should contract who is a minister before the employment relationship begins. The test will adequately protect both the interests reflected in the First Amendment and the interests protected in antidiscrimination laws by giving employees notice and bargaining power and giving employers control.

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