Jewish Journal

Supreme Court to hear arguments in ministerial exception case

by Brad A. Greenberg

October 5, 2011 | 12:40 am

I mentioned in August the ministerial exception and the U.S. Supreme Court’s decision to hear arguments in a case involving exactly which ministers and religious organization employees the exception applies to.

Background for the ministerial exception can be found in the petition for cert in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, excerpted here by Eugene Volokh:

This Court has long recognized the right of religious organizations to control their internal affairs. Watson v. Jones, 80 U.S. 679, 728–29 (1871). This right includes the freedom of religious organizations “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952). Most importantly, it includes the right of religious organizations to select their own religious leaders. Ibid.; Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 724–25 (1976); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929).

Based on this right, twelve federal circuits have recognized the “ministerial exception.” (The Federal Circuit has no jurisdiction over cases that could present the issue.) The ministerial exception bars lawsuits that interfere in the relationship between a religious organization and employees who perform religious functions — most obviously, lawsuits seeking to compel a religious organization to reinstate such an employee or seeking to impose monetary liability for the selection of such employees. As the first court adopting the ministerial exception explained: “The relationship between an organized church and its ministers is its lifeblood”; allowing the state to interfere in that relationship — effectively allowing judges and juries to pick ministers — would produce “the very opposite of that separation of church and State contemplated by the First Amendment.” McClure v. Salvation Army, 460 F.2d 553, 558, 560 (5th Cir. 1972).

Based on this principle, every circuit has agreed that the ministerial exception bars most lawsuits between a religious organization and its leaders. Every circuit has also agreed that the ministerial exception extends beyond formally designated “ministers” to include other employees who play an important religious role in the organization.

The new Supreme Court term began yesterday, and it turns out that the Hosanna-Tabor Evangelical case will be one of the first heard by the court, with oral arguments scheduled for tomorrow.

Michael McConnell, director of the Constitutional Law Center at Stanford University, argues in The Wall Street Journal that the stakes are high and that the government should stay out of employment disputes between religious organizations and their employees:

the Obama Justice Department has now asked the court to disavow the ministerial exception altogether. This would mean that, in every future case, a court—and not the church—would decide whether the church’s reasons for firing or not hiring a minister were good enough.

But the government, including the judiciary, is not entitled under the First Amendment to decide what qualifications a minister should have, or to weigh religious considerations against others. Is a secular court to decide, for example, whether confining Catholic priests or Orthodox rabbis to males is a correct interpretation of scripture, or merely a vestige of outmoded and stereotypical bias?


As a lower court judge, Justice Sonia Sotomayor wrote: “Federal court entanglement in matters as fundamental as a religious institution’s selection or dismissal of its spiritual leaders risks an unconstitutional trespass on the most spiritually intimate grounds of a religious community’s existence.” It is unfortunate that the Department of Justice does not see it that way.

Read the rest here.

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