Part 1: What Is This “Ministerial Exception” I Keep Hearing About?
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Brent, you asked me to explain what the ministerial exception is and how it works. It’s a doctrine that grew out of the free exercise clause of the First Amendment. In the United States, a long line of cases has held that religious groups should be free to choose their own leaders, as a basic component of religious liberty. Usually, the courts will stay out of those decisions.
For example, in an early case against the Salvation Army, a female officer was terminated. She filed an Equal Employment Opportunity Commission sex discrimination case.1 The court decided that, while the sex discrimination provisions of Title VII generally would apply in a situation like this, they could not apply to a ministerial relationship: “The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose.”2 This doctrine has recently been strongly affirmed by the U.S. Supreme Court, in a case involving a religious teacher, and it applies not only to churches, but to religious schools and other religious organizations.3
Who is a “minister” is defined quite broadly. Persons fit the ministerial exception if their primary functions serve the spiritual and pastoral mission of the organization, whether or not they are ordained. This doctrine does not refer only to someone who is ordained, or to someone who is a pastor. Teachers, music ministers, youth pastors, and others have been found to be ministers. The key is whether the person is in a role that fulfills a specific spiritual purpose. Evangelism, creating religious materials, teaching, service ministry such as medical missions, and others can and should all fit within the ministerial role.
As a general rule, most missionaries would fit the ministerial exception, and it would be the rare employee where the mission would say that the person does not further its religious purposes. Persons would not be included under this exception if their positions were purely custodial or administrative, with no spiritual function.4 The mission should consider what jobs would have no spiritual function!
Given how strong this doctrine is, some missions leaders just relax and figure that they don’t need to worry. Any of their employment decisions will be protected by the ministerial exception doctrine.
This approach has several problems. One is that often administrative agencies (like the Civil Rights Division) will not address constitutional issues. You may have to litigate through that level and get into federal court before you can raise the ministerial exception defense. Another is that you cannot be absolutely certain that the court will agree with you that the person is a minister. Finally, if a mission appears to be violating peoples’ rights, it will be tempting for the court to narrow the ministerial exemption. In a time when many religious liberties rights are being narrowed, you don’t want to tempt fate—and none of the rest of us want you to narrow the doctrine, either.
Most employment laws involve treating people kindly and reasonably. The better approach is to have several lines of defense. Make sure that your treatment of people meets or exceeds general statutory standards. Also define your job descriptions so that you can call on the ministerial exception where you are genuinely entitled to do that. Then, if you have to raise that defense, you will be in a more sympathetic position.
1 McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972).
2 Id. at 558-59.
3 Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S.Ct. 694 (2012).
4 Patton, 212 S.W. 3d at 549 (finding a non-ordained Director of Youth Ministries was a ministerial employee).
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