Marci Hamilton on the "ministerial exception"

Readers familiar with Prof. Hamilton's work will not be surprised by this piece, at Patheos, in which she takes a dim and disapproving view of the "ministerial exception."  As I suggested in an earlier post, this "exception" is, in my view, a crucial -- and, indeed, perhaps the most obvious -- implication of our commitment to religious-freedom-under-law-and-through-church-state-separation-correctly-understood.

Prof. Hamilton assures her readers "[r]eligious organizations obviously should have a right to choose their clergy according to their own lights" but then goes on to indicate disagreement with the result in a relatively recent Third Circuit decision called Petruska, in which the plaintiff was a "chaplain" at a religious university.  The "right" she concedes, then, appears to be a very narrow one.

Near the end of the piece, she writes, "If the church school wins this case . . . I think that Congress and the state legislatures owe it to potential employees of religious institutions to warn them of their lack of protection from invidious discrimination."  Now, as it happens, it strikes me as a good idea for religious institutions to incorporate into their employment contracts and related materials, to the extent possible, clear indications regarding the religious nature (if any) of their employees' duties and positions.  Prof. Hamilton's suggestion, though, that they should be required to "warn" employees is curious, to me, for at least two reasons: 

First, we don't usually require people to "warn" others that they have constitutional rights which they plan to exercise; the "ministerial exception" reflects the First Amendment right of religious communities to be, well, religious communities, and to not have secular courts interfere in religious decisions and relationships.  Second, while it is certainly true that religious institutions (like all others) can and do behave badly, it is not the case that there is necessarily anything "insidious" about a religious institution making decisions about religious doctrine and positions using criteria that we do not think governments and non-religious employers should not use.  That said, even if a religious institution acts badly in selecting or terminating a ministerial employee -- say, by doing so for reasons that actually have nothing to do with religion and reflect simply petty spite, or worse -- it is still the case that a secular government committed to church-state separation will recognize that it cannot tell a religious community -- even a bad-acting one -- who will be its clergy, ministers, or teachers.