Publication Date

Spring 8-1-2023


Nearly fifty years ago, the circuit courts gave birth to a defense that would prevent the judiciary from interfering with the personnel decisions of religious organizations. When the Supreme Court ultimately addressed the ministerial exception, it baptized its rationale and scope. In sum, where a religious organization’s decision to hire, control or fire a ministerial employee is concerned—actions the court defines as tangible— no judge can meddle. But that simplicity belies complex issues that the federal appellate courts are grappling with as well as those that may well arise.

The circuits have split on whether the ministerial exception can be invoked in hostile environment cases with a growing majority holding that it does. However, the trend misconstrues the purpose of the ministerial exception, fails to recognize that hostile environment cases are much like torts impervious to the exception, neglects the fact that many, if not most, employment disputes are decided by private arbitrators and, last but far from least, that a categorical application of the exception is nonsensical.

For these reasons, the Supreme Court should accept review of a hostile environment case and squarely reject a categorical application of the ministerial exception. If the high court declines to do so, the possibility that controversial organizations whose mission manifests principles repugnant to federal anti-discrimination laws will take shelter under the exception by giving them free reign to harass employees they deem to be ministerial.