WHEN RELIGIONS DISCRIMINATE, THE CONSTITUTION SAVES: A REVIEW OF THE “MINISTERIAL EXCEPTION” TO THE CIVIL RIGHTS ACT Jacob Nemon, Temple University Beasley School of Law April 2010

1. WHEN RELIGIONS DISCRIMINATE, THE CONSTITUTION SAVES:
A REVIEW OF THE “MINISTERIAL EXCEPTION” TO THE CIVIL RIGHTS ACT
Jacob Nemon, Temple University Beasley School of Law
April 2010
I. INTRODUCTION
If a black woman minister brings a lawsuit against the church that she believes fired her
discriminatorily, has she stated a claim? Can a Jewish person terminated from an executive
position in a religiously affiliated hospital sue the hospital for religious discrimination? Does a
Hispanic math teacher have any recourse if a parochial school refuses to consider her for a
position?
This article will examine how employment discrimination law in the United States is
balanced with religious institutions’ First Amendment freedom of religion rights. It will show
that while courts provide some protection from racial, sexual, and ethnic discrimination in the
religious workplace, religious freedom concerns have overwhelmingly blocked court review of
questionable employment practices.
Most federal circuit courts have adopted a ministerial exception to Title VII of the 1964
Civil Rights Act.1 Courts use the ministerial exception to dismiss discrimination cases against
religious organizations on the basis that adjudicating these cases would conflict with the Free
Exercise and Establishment clauses of the First Amendment.2 These institutions are generally not
given the burden of presenting a religious purpose for their discriminatory employment
practices.3 The courts have abided by this hands-off policy because of their unwillingness to
1
See Rweyemamu v. Cote, 520 F.3d 198, 206 (2d Cir. 2008) (documenting lead ministerial exception cases). See
also Ross v. Metro. Church of God, 471 F. Supp. 2d 1306, 1309 (N.D. Ga. 2007) (cataloguing instances of the
extension of the ministerial exception to other antidiscrimination contexts).
2
Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09 (1976); Scharon v. St. Luke’s Episcopal
Presbyterian Hospital, 929 F.2d 360, 362 (8th Cir. 1991).
3
See Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 703 (7th Cir. 2003)
1

2. entangle themselves in questions of religious practice. Recently, however, at least one court has
recognized that religious institutions should articulate a justification for discrimination where the
employment matter in dispute is inherently secular.4
This article will first recount the legal background of the ministerial exception and its
jurisprudential underpinnings. It will then critically look at the ministerial exception as adopted
by the United States Circuit Courts. Next, it will explain what organizations can utilize the
ministerial exception and how far down the line of employees the ministerial exception runs.
II. LEGAL BACKDROP
The First Amendment of the United States Constitution5 guarantees religious freedom to
all persons by providing an unbreachable wall of separation between state affairs and religion.6
Autonomy is granted to religion by prohibiting government interference with its free exercise, as
well as government or court interference that dictates how religion may be practiced.7
Constitutional protection from state involvement extends not only to individual citizens, but to
religious institutions in their collective capacities making decisions about employment and
institutional governance.8 A faith community’s right to choose its own ministers is essential
because those leaders represent the community’s values, teach its message, and interpret its
4
See Petruska v. Gannon University, 462 F.3d 294, 312 (3d Cir. 2006), cert. denied 550 U.S. 903 (2007).
5
U.S. Const., amend. I.
6
Everson v. Board of Education, 330 U.S. 1 (1947).
7
See Wisconsin v. Yoder, 406 U.S. 205, 214-15 (1972) (prohibits the government from enforcing statutes of
important state interest that infringe on the free exercise of religion); Lemon v. Kurtzman, 403 U.S. 602, 612-13
(1971) (prohibits excessive government entanglement in reviewing religious practice as a violation of the
Establishment clause); Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 191 (1960) (First Amendment prohibitions
apply to the Judicial Branch as well as to Congress).
8
Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952).
2

3. religious doctrines.9 The Supreme Court has been wary of any court review of the employment
of religious leadership.10
Congress passed the monumental Civil Right Act of 1964 (“the Act”) 11 in order to stem
discrimination in the United States based on race, color, religion, sex, national origin, and
disability. Title VII of the Act12 specifically targeted workplace discrimination by prohibiting
employers from making employment decisions based on race, color, religion, sex, and national
origin. It was intended to apply to all employers in the United States, including religious
institutions.
The goal of ensuring civil rights in every workplace inevitably clashes with religious
freedom for religious employers.13 To avoid conflict with the First Amendment’s constitutional
requirements, Congress provided a specific exemption for religious institutions and groups from
the Act’s coverage with regard to hiring individuals of the same religion to carry on the group’s
religious mission.14 Similarly, religious employers may, just as any employers, discriminate
against an individual if religion, sex, or national origin – but not race – are bona fide
occupational qualifications reasonably necessary to the normal operation of their organization.15
9
Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1168 (4th Cir. 1985), cert. denied 378 U.S.
1020 (1986), quoting Kedroff, 344 U.S. at 116.
10
See Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16 (1929); Milivojevich, 426 U.S. 696 at 717.
11
The Civil Rights Act of 1964, Pub.L. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 42
U.S.C.).
12
Equal Employment Opportunity Act §§ 701-716, 42 U.S.C. § 2000e-1-16. See also 42 U.S.C. § 2000e-2(e)(2)
(exemption allowing religious educational institutions to hire only members of the same religion).
13
See Rayburn, 772 F.2d at 1166.
14
42 U.S.C. § 2000e-1. See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v.
Amos, 483 U.S. 327, 329-30 (1987).
15
42 U.S.C. § 2000e-2(e)(1).
3

4. Under the Civil Rights Act, religious groups may not discriminate in hiring for the positions of
an administrator, bookkeeper, janitor, or any other job that is not of a religious nature.16
By not exempting religious institutions from the Act for racial, sexual, and national origin
discrimination, Congress clearly intended for it to apply to religious institutions.17 However,
Congress did not explain how subjecting religious institutions to the statutory requirements
passes constitutional muster. The courts were left with a battery of questions to determine how
the Civil Rights Act should apply to religious institutions in light of the freedoms of the First
Amendment.18 Is invidious discrimination worthy of protection under the First Amendment?
Should Congress’ goal of ridding the country of discrimination apply to religious institutions
where it has no articulable religious basis for discriminating? Can courts require a religious
entity to articulate its religious doctrinal reasoning or review the propriety of doctrine-based
decisions? Are religious institutions permitted to discriminate against employees who serve non-
clerical functions?
III. THE “MINISTERIAL EXCEPTION”
Congress never intended to exempt religious institutions from the Act for all forms of
discrimination.19 The Fifth Circuit, nonetheless, took initiative and created a “ministerial
16
See Scharon, 929 F.2d 360 at 363 (there is no concern that the ministerial exception will be abused to wrongfully
discriminate against non-ministerial employees as every court has denied extending the ministerial exception to
cover churches in any other discrimination situation).
17
See McClure v. Salvation Army, 460 F.2d 553, 556-557 (5th Cir. 1972), cert. denied, 409 U.S. 896 (1972).
18
See generally Yoder, 406 U.S. at 414-15.
19
See E.E.O.C. v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 1277 (9th Cir.1982); E.E.O.C. v. Sw. Baptist
Theological Seminary, 651 F.2d 277, 282 (5th Cir.1981); Rayburn, 772 F.2d at 1166-67 (concluding that Congress
intended to impose liability on religious organizations for all other forms of employment discrimination). But see
Scharon, 929 F.2d at 362 n. 2 (no indication from legislative history that Congress intended the Age Discrimination
in Employment Act, 29 U.S.C. §§ 621-634, to apply to religious institutions).
4

5. exception” to avoid entertaining discrimination lawsuits brought by ministers against religious
institutions out of the fear of entering a domain forbidden by the First Amendment.20
Subsequently, every circuit presented with the issue adopted the exception and defined which
employees are considered ministers. It is now the law in nine of the federal circuits.21 Some
courts view the ministerial exception as an affirmative defense for religious institutions when
faced with suits by former ministers alleging discrimination.22 Others have gone further to
assume that the First Amendment takes ministerial cases out of the civil courts’ subject matter
jurisdiction.23 Whatever its jurisprudential underpinning, the circuits are unanimous in their
holding that the ministerial exception prohibits review of religious employment decisions.24
Religious leadership is so vital to religious practice that any intrusion by a court would
unlawfully impinge on religious freedoms.25 Courts have generally not ventured into religious
doctrines to explore whether some religious bona fide occupational requirement justifies
discrimination against a plaintiff.26 The reason is that demanding that the defendant articulate
some religious purpose for discriminating or point to organizational bylaws would tread on Free
Exercise concerns.27 The ministerial exception applies robustly and precludes any inquiry
20
McClure v. Salvation Army, 460 F.2d at 555.
21
See n. 1, supra.
22
See, e.g., Petruska v. Gannon University, 462 F.3d 294, 312 (3d Cir. 2006).
23
See, e.g., Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2006), cert. denied 552 U.S. 857
(2007).
24
Rweyamumu, 520 F.3d at 206.
25
Rayburn, 772 F.2d at 1168.
26
See id. at 1169 (“While it is our duty to determine whether the position … is important to the spiritual mission …
we may not then inquire whether the reason for [the plaintiff’s] rejection had some explicit grounding in theological
belief”).
5

6. whatsoever into the religious hiring decisions of religious institutions.28 Some courts have
concluded that doing so would also violate the Establishment Clause because the courts would
thereby become excessively entangled in religion.29 It is of no moment that the defendant may be
using the ministerial exception defense as a pretense for some secular prejudice or bias.30
The process of inquiry into the good faith of those making religious-administrative
decisions impinges on the rights guaranteed by the First Amendment.31 Ministerial hiring
decisions by a religious institution are per se religious matters. Civil courts are prohibited from
any inquiry into religious doctrine and canonical law to impose their views on whether an
employment decision was properly made.32
The Third Circuit, one of the more recent adoptees of the ministerial exception, took a
narrow view of the exemption provided by the First Amendment to religious institutions.33
Reasoning that courts should not provide an overbroad remedy that strikes down the entire
purpose of the Civil Rights Act, the Third Circuit said that a limited review of a religious
organization’s actions is acceptable. In many circumstances, it may be possible to determine
whether discrimination occurred without challenging religious doctrinal matters. Rather than a
27
See Milivojevich, 426 U.S. at 708-09; Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1577-78 (1st Cir.
1989) (Courts are barred by the Free Exercise clause from adjudicating rules, policies, and decisions which are
unmistakably of ecclesiastical cognizance).
28
E.E.O.C. v. Roman Catholic Diocese, 213 F.3d 795, 802 (4th Cir.2000).
29
See, e.g., Scharon, 929 F.2d at 362.
30
N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, (1979);
31
Id. See also Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354, 1356-57
(D.C.Cir.1990) (determining whose voice speaks for the church is per se a religious matter); Rayburn, 772 F.2d at
1169 (“the First Amendment protects the act of a decision rather than the motivation behind it”).
32
Sharon, 929 F.2d at 363.
33
See Petruska, 462 F.3d at 312.
6

7. wholesale dismissal of a minister’s civil rights, the defendant may defeat particular issues on
summary judgment that violate its religious liberties if it can demonstrate that court examination
would thereby invade the exclusive province of religion. Matters of contract dispute and
employment discrimination, however, belong to the civil courts. 34
The Ninth Circuit held that the ministerial exception cannot be invoked to prevent a court
from finding that senior church employees sexually harassed a female minister in violation of
Title VII.35 Although wrongful termination findings by the court might infringe on the church’s
right to make its own religious decisions, a finding that sexual harassment occurred is a strictly
secular matter that does not require the court to entangle itself in religious law.36 Apparently, the
Ninth Circuit might be willing to entertain a discrimination action against a religious institution
where the discrimination is blatant and non-religious and the defendant’s invocation of the
ministerial exception is clearly pretextual.37
IV. HOW FAR DOES THE MINISTERIAL EXCEPTION REACH?
It is clear from the above that a minister cannot bring a Title VII discrimination claim
against a religious institution for discrimination. Courts may follow the lead of the Third and
Ninth Circuits38 and move away from absolute immunity under the ministerial exception.
Ministerial rights are, meanwhile, greatly curtailed. Religious groups may discriminate against
their ministers with impunity under the pretense of religious freedom.
34
Id.
35
Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 959 (9th Cir. 2004).
36
Id.
37
See also Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 950 (9th Cir.1999) (a limited inquiry may be
acceptable, where the court can control discovery and prevent wide-range intrusion into religious matters).
38
See nn. 33, 35, supra.
7

8. Two things remain to be explored: what defines a religious institution for the purposes of
the ministerial exception and which employees are considered ministers in the eyes of the law so
that the ministerial exception should extend to them? Indeed, some circuits adopted these factors
as the test for whether the ministerial exception should be applied in a particular case.39
A. What is a Religious Institution?
A religious institution does not have to be a traditional religious organization such as a
church, mosque, synagogue, or diocese.40 Rather, it can be a religiously affiliated organization
whose “mission is marked by clear or obvious religious characteristics.”41 Thus, the Fourth
Circuit found that a Jewish run nursing home is a religious institution and that operating a kosher
kitchen is a part of its religious mission.42 The Sixth Circuit found that both a Methodist
Hospital43 and a Lutheran Evangelical parochial school44 were religious institutions. Likewise,
the Fifth Circuit, in the lead ministerial exception case, had no trouble finding that the Christian-
evangelical Salvation Army is a religious organization.45
B. Who is a Minister?
39
See Hollins, 474 F.3d at 225 (forms a two factor test for applying the ministerial exception: 1) the employer must
be a religious institution and 2) the employee must be a ministerial employee).
40
Id.
41
Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 310 (4th Cir. 2004) (a Jewish nursing home
providing for the “aged of the Jewish faith in accordance with the precepts of Jewish law and customs,” .is a
religious institution such that the kosher supervisor of the kitchen is a minister who advances its religious mission).
42
Id.
43
Hollins, 474 F.3d at 225.
44
E.E.O.C. v. Hosanna-Tabor Evangelical Lutheran Church and School, __ F.3d __, 2010 WL 770190, at 7 (6th
Cir. 2010).
45
McClure, 460 F.2d at 554.
8

9. If courts cannot make religious determinations, must they defer to a religious body’s
determination of who is advancing its teachings? The religious group knows best who is
fulfilling its goals. However, it is self-evident that some employees are not performing a
religious function or have only a limited religious role. Since Congress intended for religious
institutions to be covered by the Civil Rights Act, it would be self-defeating if religious
institutions could avoid liability by claiming that each of its employees somehow advances its
tenets. A functional standard for determining ministerial roles is in order.
The courts have generally dealt with the issue of who is a minister by adopting a
“primary duties” test.46 First espoused by the Fourth Circuit, this test examines whether the
employee’s primary duties consist of teaching or spreading the faith, governing the organization,
supervising a religious order, or participating in religious ritual or worship.47 A bright line ordination
test is inappropriate because non-ordained persons often carry on many of these roles.48
The Fourth Circuit found that an unordained associate in pastoral care falls under the
ministerial exception because her responsibilities were to spread the faith. The District of
Columbia Circuit determined that a nun who was denied tenure in the canon law department of a
Catholic university had the primary duties of fostering and teaching sacred doctrine and
discipline and was therefore a minister.49 However, the Sixth Circuit applied the primary duties
test to find that a teacher of primarily secular studies in a parochial school is not a minister and
therefore covered by the Act.50
46
See Rayburn, 772 F.2d at 1169.
47
Id.
48
Id. at 1168.
49
E.E.O.C. v. Catholic University of America, 83 F.3d 455, 463-64 (D.C. Cir. 1996).
50
Hosanna-Tabor, __ F.3d __, 2010 WL 770190, at 7.
9

10. The Fifth and Ninth Circuits dismissed the primary duties test because it oversteps into
forbidden First Amendment grounds by examining which of an employee’s responsibilities carry
on a religious mission.51 Moreover, by looking to the employee’s primary duties, increased court
review of the employee’s religious responsibilities is required. Each of these circuits adopted a
three-part functional test: “if a person (1) is employed by a religious institution, (2) was chosen
for the position based ‘largely on religious criteria,’ and (3) performs some religious duties and
responsibilities, that person is a ‘minister’ for purposes of the ministerial exception.”52
While it is positive for advocates of religious liberties that both ministerial tests try to
distance themselves from intruding on religious freedoms, neither test is very helpful for
determining who is a minister. The primary duties test can be under inclusive if, for example,
“the Catholic Church requires its candidate for the priesthood to spend a year ‘mostly clean[ing] sinks’
without overtime pay.”53 Similarly, the three-part test can fail by excluding someone like a church
organist from ministerial status, despite their central role in the church service, because they were chosen
for their musical abilities and not their religious training.54 Nonetheless, elaborating some rule for
determining who is a minister is functionally superior to evaluating the plaintiff’s role in the congregation
on a case-by-case basis, which would require greater court inquiry and extensive fact finding into
religious organizations.
51
Starkman v. Evans, 198 F.3d 173, 176 (5th Cir.1999); Alcazar v. Corp. of Catholic Archbishop of Seattle, __
F.3d __, 2010 WL 917200, at 5-6 (9th Cir. 2010).
52
Id.
53
Id.
54
See Starkman, 198 F.3d at 176 (applying ministerial exception to director of music who had special training);
E.E.O.C. v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795 (4th Cir. 2000); Tomic v. Catholic Diocese of
Peoria, 442 F.3d 1036, 1040 (7th Cir. 2006), cert. denied 549 U.S. 881 (2006) (an organ player is a minister because
the music chosen will affect the worshippers’ religious experience).
10

11. Courts have generally given a wide construction to ministerial responsibilities,
conservatively tiptoeing around any inquiry into the religious nature of the plaintiff’s work.
Despite this reluctance to visit the work carried on by employees of religious organizations, the
courts have generally done a fine job of distinguishing employees whose roles are genuinely not
ministerial.55 Those classed by these cases as non-ministerial employees, usually teachers in
parochial schools, were generally hired to teach non-religious subjects, although sometimes with
a religious twist.56 In the cases where the plaintiff was found to be a ministerial employee, their
role is usually to teach religious subjects or impart the faith.57
With two other types of employees that courts found to fall into the ministerial exception,
there is room to quibble about the propriety of casting such a wide net. First, multiple circuits
have held that a music director or church organist is a minister.58 Second, the Seventh Circuit
held that a church’s press secretary to the Hispanic community is a minister for the purposes of
the ministerial exception because she “convey[s] the message of the organization to the public.”59
Both decisions look only at the employees’ functions but not at the context of their employment.
55
See Hosanna-Tabor, __ F.3d__, 2010 WL 770190, at 8 (recounting numerous discrimination cases where the
primary role of religious institution employees was not ministerial).
56
See, e.g., DeMarco v.Holy Cross High Sch., 4 F.3d 166, 172 (2d Cir. 1993) (applying the ADEA to a math teacher
at a religious high school would not result in excessive entanglement under the Establishment Clause); Dole v.
Shenandoah Baptist Church, 899 F.2d 1389, 1392, 1397 (4th Cir. 1990) (teachers who integrate biblical material
into traditional academic subjects should be considered lay teachers for purposes of the ministerial exception);
E.E.O.C. v. Fremont Christian Sch., 781 F.2d 1362, 1370 (9th Cir. 1986) (teachers at a church owned and operated
school do not fulfill the function of a ministerial employee).
57
See, e.g., Catholic Univ. of Am., 83 F.3d at 463-65 (nun who teaches ecclesiastical laws in a school of canon law
is a ministerial employee for the purposes of the ministerial exception); E.E.O.C. v. Sw. Baptist Theological
Seminary, 651 F.2d 277, 283-84 (5th Cir. 1981) (seminary teachers who only teach Baptist courses are ministerial
employees).
58
See n. 56, supra.
11

12. While it may be that the employees in these cases had discretion in the choice of music or
religious message to impart, in other circumstances, the holders of these positions may just be
mouthpieces for the ministers who direct their activities. These cases also fail to consider that
someone may be hired not for their religious preparation or message of faith but for their musical
talents and communications skills.
V. CONCLUSION
The First Amendment and the Civil Rights Act both represent strongly held American
values, cherished for providing greater freedom to all citizens of the United States. Where these
two freedoms clash, courts have given preference – some might argue too much preference – to
religious institutions in their choice of ministerial hires.60 Religious institutions benefit from
being able to choose the leaders they find most suitable to put forth their message. At the same
time, a carte blanche is unwittingly handed to these institutions to odiously discriminate on the
basis of race, sex and national origin. While this undermines the important goal of healing the
national malady of employment discrimination, civil rights advocates can take some comfort that
this exception only applies to a narrow class, ministerial employees.
59
Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 704 (7th Cir. 2003) (applying ministerial
exception to the Hispanic Communications Director for the Catholic Diocese of Chicago).
60
See Young, 21 F.3d at 185 (“[I]n a direct clash of “highest order” interests, the interest in protecting the free
exercise of religion embodied in the First Amendment to the Constitution prevails over the interest in ending
discrimination embodied in Title VII.”).
12