The Curious Case of the Ministerial Exception

I’m a longtime layman-observer of the Supreme Court of the United States. There’s nothing that gets the intellectual juices flowing for me like a compelling case before the high court.

The latest source of fascination is last week’s unanimous decision that a teacher in a church-run school could not sue her employer for discrimination under the ADA. I’ve long wondered how the court would rationalize employment discrimination on the part of the church. Now I know. It’s called the “ministerial exception.”

Essentially the court held that the exception granted to churches is consistent with the First Amendment’s guarantee of freedom of religion. The decision also codifies the right of religious institutions to discriminate in hiring (e.g. the Catholic church will never be compelled by law to hire female priests). This probably makes sense, but clearly the First Amendment does have limits in this realm. Does it protect the right of Rastafarians to smoke pot since it’s said to be a religious sacrament. I don’t think so.

But it does appear that the court’s interpretation of the word “ministerial” is overly broad. The teacher in question is not an ordained minister. Cheryl Perich taught primarily secular subjects such as math and science but she did teach one religious course. I guess the question I would ask is: does the court’s decision mean churches are not bound by traditional employment law if the employee has only a glancing involvement with religious instruction?

Surely the custodian who sweeps the altar and polishes the chalice would be afforded the same protections as the guy who cleans the public elementary school down the street? Curiously, the court did not define the exception, nor did it mention how it might be invoked in other circumstances. It seems to me that the high court, in a way that previous courts had not done at the appellate level, had to massage the word “ministerial” in order to preserve the right of churches to discriminate in hiring or, in this case, to fire certain employees who call the church out on its mischief.

What’s amazing about this case is that the reaction of newspaper editorial boards has been almost as unanimous as the court’s 9-0 decision. Papers representing the full range of the idealogical spectrum have commended the interpretation — the notable exception being the New York Times, with which I mostly agree with.

I wouldn’t go so far as to define the ministerial exception down to almost nothing and clear the way for lawsuits from atheists who don’t get hired by parochial schools. Nor would I want to abolish it, as some progressive legal groups do. But Ms. Perich’s lawsuit had nothing to do with her religion or her teachings and everything to do with federal law that prohibits employers from retaliating against workers who try to access the secular anti-discrimination justice system. What about a religious school teacher who is a target of workplace harassment? Would the church be within its rights to fire her if she complained?

These questions demand answers from the high court if it expects Americans to continue supporting this excessively broad exception.

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