Ninth Circuit Explains a Potentially Expansive Ministerial Exception
The ministerial exception prohibits governments from applying anti-discrimination laws to religious organizations’ hiring of “religionists.” Religionists are the faith teachers and preachers. The rationale is that the government may not force religious organizations to hire “ministers” who do not believe and live according to the religious organization’s beliefs. To do so would entangle government in, and indeed lead to government supervision of religion. For example, a church that thinks homosexuality a sin cannot be forced by anti-discrimination laws to hire a gay or lesbian minister or Sunday school teacher.
We have blogged about Washington cases where religious organizations are seeking to extend the doctrine to the hiring of “co-religionists.” Those are the normal workers whose duties do not include teaching or preaching the organization’s belief. Under the exception so far, religious organizations may not discriminate in their hiring of office workers, in-house attorneys, facilities managers, IT managers, and other workers whose duties have nothing to do with teaching or preaching the faith. At least two Supreme Court justices — Alito and Thomas — are itching to extend the exception to co-religionists. A federal district court in Washington has already held as much. But the Washington cases are moving at a snail’s pace.
In Yaakov Markel v. Union of Orthodox Jewish Congregations of America, the Ninth Circuit Court of Appeals demonstrates just how expansive the exception is and would be if extended to co-religionists. The doctrine, according to the Court, precludes any lawsuit between a minister and his or her religious organization. It does not just prevent the government from imposing employment discrimination laws against religious organization.
The plaintiff served as a religious organization’s “mashgiach” responsible for supervising food preparation to ensure kosher compliance. He sued the Orthodox Union and the rabbi, claiming he was promised certain raises and other employment benefits that never materialized. The Court found that he was was a minister with respect to the organization, though the mashgiach, himself, asserted otherwise. Press reports state that the Orthodox Union is the largest “kosher keeper” in the world. It is pretty obviously a religious organization. The Court therefore ruled that the ministerial exception barred the mashgiach’s breach of contract action against Orthodox Union. To allow the suit would require government entanglement and supervision. Here are excerpts:
The First Amendment prohibits any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. CONST. amend. I. The Religion Clauses collectively “protect[] 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.’” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 737 (2020) (Our Lady) (quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952)). From this general principle of church autonomy stems the “ministerial exception,” which precludes the application of “laws governing the employment relationship between a religious institution and certain key employees.” Id.
The ministerial exception “protect[s] [a religious institution’s] autonomy with respect to internal management decisions,” which includes the “selection of the individuals who play key roles.” Id. at 746. “[A]ny attempt . . . to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion.” Id. Thus, the Religion Clauses require deference to a “religious institution’s explanation of the role of [its] employees in the life of the religion in question.” Id. at 757. As a result, “it is impermissible for the government to contradict a church’s determination of who can act” as one of these mission-critical employees. Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 565 U.S. 171, 185 (2012). “[C]ourts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.” Our Lady, 591 U.S. at 746.
By its terms, the rule permits no exceptions. It is categorical. The ministerial exception encompasses all adverse personnel or tangible employment actions between religious institutions and their employees and disallows lawsuits for damages based on lost or reduced pay. See Alcazar v. Corp. of Cath. Archbishop, 627 F.3d 1288, 1293 (9th Cir. 2010) (en banc).
Wow. A minister can bring no employment law action against his religious organization. The holding is especially significant in light of the efforts to expand the ministerial exception to a religious organization’s non-religious workers (co-religionists). If that effort is successful, non-religious workers, too, would be barred from ever bringing plain old employment law actions against a religious organization.
darryll k. jones