Should Religious Organizations Be Able to Hire and Fire "Ministers" for Any Reason?

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a disability act case before the Supreme Court implicates some interesting issues though not all of them are before the Court. The issue before the Court is “Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.” One of the interesting facts of the case is that some of the teachers at the school are not commissioned ministers in the eyes of the Church, but do the same work as the person who is before the Court. Should they also be ministers in the eyes of the First Amendment? (A brief before the Court authored in part by Rick Garnett and Tom Berg argues that they should).

More fundamental, should the ministerial exception exist at all. At a recent conference, Caroline Corbin argued that it should not. Among other things, the doctrine arguably necessitates judicial theological determinations as to what counts as a minister (perhaps not if the history of the exception is clear, then the Court would merely be making a historical judgment though possibly one in which some religions are privileged over others).

Even if there were no ministerial exception, surely religious associations should be able to hire or fire their leaders just as other associations can. Ideological associations, for example, can determine their membership and their leaders according to their ideology. To take an extreme example, the KKK need not accept an African American, a Catholic, or a Jew for membership, let alone for leadership. And the Catholic Church has a First Amendment right to refuse to hire women priests because it is a part of its religious doctrine to do so.

Why should the Lutheran church have to keep a minister it does not want to keep in Hosanna-Tabor? On one reading of the facts, the Lutheran church fired the teacher not because of its religious doctrine, but because of a disability in violation of the disabilities act. I emphasize that it is no part of Lutheran doctrine or ideology that the church should do so.

The church also fired the employee for bringing the law suit which is contrary to church doctrine requiring employees to settle issues within the church (Could the Catholic Church fire an employee for reporting sex abuse on the ground that the employee was supposed to keep the issue within the Church – one brief argues that these third party cases are different though I do not see why). It seems to me that government has a compelling interest in enforcing laws against disability discrimination and against sexual abuse interests that outweighs the First Amendment interests in both cases.

If the ministerial exception applies, it does not matter what reason the Church has. It could, for example, discriminate on the basis of race even if it were no part of its doctrine to do so. One difficulty with this approach, as Jesse Hill observed at the conference, is that a Court would have to determine what the Church’s doctrine really is, something it has been loathe to do, at least with respect to property disputes where it has resorted to other criteria. On the other hand, courts have considered the sincerity of religious beliefs in many exemption cases and have looked to the religious doctrine of the churches to which the applicant for an exemption has belonged.

In the end, I think that religious associations should stand on the same footing as other ideological associations They should be able to select their leaders and members in accordance with their ideology. But religion should not confer a license to discriminate for reasons that have nothing to do with the religious doctrine of the Church, yet that is precisely what the ministerial exemption confers. 

cross-posted at religiousleftlaw.com

comments open, but I may not be able to respond