How the Ministerial Exception Protects Religious Institutions from Government Interference

For any organization, its mission statement is core to its identity. And to advance that mission, it needs people who agree with its values and will carry them out.

This is just as true, if not more so, for religious institutions. If religious beliefs are at the center of an organization, then it is addressing some of life’s most important and fundamental questions. And if its mission includes teaching and spreading those beliefs, then it is critical that the organization—rather than the government—can decide who performs this vital function.

This is why our courts have recognized the principle of the ministerial exception.

What is the ministerial exception?

The ministerial exception (sometimes mistakenly called the “ministerial exemption”) allows religious organizations to make employment decisions for ministers without government interference.

What was the origin of the ministerial exception?

The Supreme Court has long recognized that the First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine” (Kedroff v. Saint Nicholas Cathedral, 1952). However, the passage of laws prohibiting employment discrimination, even with some exceptions for religious employment, ignited debate over the extent to which religious institutions could control their own employment decisions without government interference.

Lower courts debated this question for decades. The origins of the ministerial exception can be seen in cases like McClure v. Salvation Army (1972), in which the U.S. Court of Appeals for the 5th Circuit held that interfering in the “employment relationship existing between … a church and its minister would result in an encroachment by the State into an area of religious freedom which it is forbidden to enter by the principles of the free exercise clause of the First Amendment.”

Finally, in 2012, the Supreme Court handed down a unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission and upheld the principle of the ministerial exception, recognizing that both the Free Exercise and Establishment Clauses of the First Amendment “bar the government from interfering with the decision of a religious group to fire one of its ministers.”

The Free Exercise Clause “protects a religious group’s right to shape its own faith and mission through its appointments,” while the Establishment Clause “prohibits government involvement in such ecclesiastical decisions.” If the government were to involve itself in the internal governance of a church or religious organization like this, it would “depriv[e] the church of control over the selection of those who will personify its beliefs.”

Who qualifies for the ministerial exception?

Legal scholars have debated the extent to which the ministerial exception applies to employees of religious organizations. In Hosanna-Tabor, the Supreme Court purposefully did not “adopt a rigid formula for deciding when an employee qualifies as a minister.” It did, however, cite four relevant factors for why the employee in question (a teacher named Cheryl Perich) should be considered a minister:

• “Hosanna-Tabor held Perich out as a minister, with a role distinct from that of most of its members.”

• “Perich’s title as a minister reflected a significant degree of religious training followed by a formal process of commissioning.”

• “Perich held herself out as a minister of the Church by accepting the formal call to religious service, according to its terms.”

• “Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission.”

Unfortunately, some lower courts focused too much on formalities like an employee’s title, and in 2020, the Supreme Court further clarified the ministerial exception in Our Lady of Guadalupe School v. Morrissey-Berru. In a 7-2 opinion, the Court ruled that a religious organization’s ministers (in this case, teachers at a religious school) need not necessarily have a formal title of “minister” to fall under the ministerial exception.

As the Court noted, “Simply giving an employee the title of ‘minister’ is not enough to justify the exception. And by the same token, since many religious traditions do not use the title ‘minister,’ it cannot be a necessary requirement.” Instead, any definition of minister should ultimately be based on “what an employee does.” Thus, the religious function of employees should be the most important consideration as to whether they fall under the ministerial exception.

Why does the ministerial exception matter today?

The ministerial exception is an important principle that protects religious freedom by keeping the internal workings of religious organizations free from government interference. It prevents the government from becoming unnecessarily entangled in or acting as an adjudicator in matters of faith.

Despite the Supreme Court’s rulings in Hosanna-Tabor and Our Lady of Guadalupe, however, religious organizations are still being unjustly sued for employment discrimination. Alliance Defending Freedom is currently petitioning the Supreme Court to hear a case regarding the ministerial exception—Gordon College v. DeWeese-Boyd.

Gordon College is a religious institution in Massachusetts. The mission statement posted on its website says, “Gordon College strives to graduate men and women distinguished by intellectual maturity and Christian character, committed to lives of service and prepared for leadership worldwide.”

An “About Gordon College” page elaborates:

“Gordon College is a distinctive blend: an outstanding nationally ranked liberal arts institution that retains its roots in the Christian faith, a strong residential community, and a splendid location—just north of the intellectual hub of Boston, and right near the shoreline of Cape Ann. Our faith is the foundation for all that we are—individually, collectively and institutionally. With a spirit of support and collaboration, we are set free in Christ to think critically, engage new ideas and pursue truth.”

Because the Christian faith is so important to Gordon College’s institutional identity and what it seeks to accomplish in educating students, the college works to integrate that faith into all aspects of education with each class and every professor. The faculty handbook states that Gordon College professors are both educators and ministers to students and that all professors are expected to promote an understanding of their disciplines from the perspectives of the Christian faith. In other words, Gordon’s professors are a key part of fulfilling the college’s religious mission with its students.

But when a former Gordon College professor sued because she was denied a faculty promotion, a Massachusetts court ruled in her favor, saying that although she was expected and required to be a Christian teacher and scholar, she was not expected or required to be a “minister” because she did not take students to religious services or lead them in prayer, like the elementary school teachers in Our Lady of Guadalupe. Thus, according to this court, her suit did not fall under the ministerial exception.

However, this decision goes against what the First Amendment and the U.S. Supreme Court have made clear: religious institutions, including Christian colleges, are free to choose who may teach their faith. The government should not interfere with how religious colleges select their faculty since professors are the primary way that colleges pass their faith to students and fulfill their mission.

Conclusion

The Supreme Court has now twice upheld the ministerial exception as a fundamental component of the First Amendment and essential to the free exercise of religion. Everyone benefits when the government is not second-guessing the internal decisions of who a religious organization selects to teach its faith or fulfill its mission.