Benton C. Martin, Protecting Preachers from Prejudice: Methods for Improving Analysis of the Ministerial Exception to Title Vii

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 59 No. 5

PROTECTING PREACHERS FROM PREJUDICE: METHODS FOR IMPROVING ANALYSIS OF THE MINISTERIAL EXCEPTION TO TITLE VII

ABSTRACT

Since the early 1970s, an increasing number of courts have held that religious organizations have an absolute right to treat core employees, or "ministers," however they please without fear of being held accountable by secular courts. Though anti-discrimination legislation explicitly allows a religious institution to discriminate by hiring only ministers who practice the same religion as the hiring organization, such legislation prohibits both non- religious and religious employers from engaging in racial discrimination, gender discrimination, or sexual harassment. Federal circuit courts uniformly grant immunity to religious institutions from these neutral laws, basing their decisions on the First Amendment religion clauses, but the constitutional foundation for this immunity has been severely undermined by the Supreme Court.

Instead of the current approach, which defers to religious organizations, this Comment argues that any right to church autonomy should be balanced against the government's interest in enforcing anti-discrimination laws. The need for an appropriate balancing test is confirmed by recent lower court opinions that have struggled to justify a deferential approach in the face of employment decisions by religious institutions that violate federal law and lack any religious justification. After arguing for a more sound constitutional approach, this Comment ultimately proposes an amendment to Title VII that would protect ministers from non-religious discrimination while shielding religious organizations from intrusion on religious expression.

INTRODUCTION

In 2005, Father Justinian Rweyemamu, a black Catholic priest from Tanzania, sued his diocese and his superior, Bishop Michael Cote, alleging that he had been passed over for promotion and fired due to racial discrimination in violation of Title VII of the Civil Rights Act.¹Despite his high approval ratings among church members, the promotion was given to a white male whom Rweyemamu alleged to be less qualified than him.²The church countered that it had a right, grounded in the First Amendment, to be free from government intrusion into management of its internal affairs.³The Second Circuit agreed and dismissed the case, without any further investigation of Rweyemamu's claims, to avoid "plung[ing] the [court] into a maelstrom of Church policy, administration, and governance."⁴

By rejecting Rweyemamu's claims without researching their validity or weighing the government's interest in prohibiting racial discrimination, the Second Circuit joined the majority of circuit courts, deciding that federal employment legislation cannot be applied to religious organizations without violating the First Amendment, even in the face of blatant discrimination.⁵

This judicially recognized constitutional limitation on federal employment law, termed the "ministerial exception,"⁶is overly deferential to religious organizations, especially in light of Supreme Court opinions favoring the application of laws neutral toward religion, even when they may substantially burden the free exercise of religion.⁷

This broad deference to religious organizations has been labeled by one journalist as the "most sweeping of [the] judicial protections" for religious employers against suits by employees.⁸Indeed, Judge Posner, advocated for the ministerial exception as a constitutional limitation on Title VII, holding that religious employers should only be liable to ministers if their actions force ministers into criminal action or subject them to corporal punishment.⁹While the First Amendment's protection of religious organizations' hiring and firing of ministers, who are considered core employees,¹⁰based on genuine disputes over core doctrinal questions is undisputed,¹¹it is much less clear whether religious organizations should be absolutely immune from claims alleging sexual harassment,¹²unfair wages,¹³child labor,¹⁴or discrimination¹⁵when there is no religious justification. Furthermore, in light of the Supreme Court's willingness to look past pretextual religious justifications and hold organizations responsible for racial discrimination,¹⁶even a religious organization's right to fire a minister based on a limited religious justification, such as mediocre homilies,¹⁷becomes unclear when there is overwhelming evidence that the justification is mere pretext.¹⁸According to the Ninth Circuit, churches should not be "free from all of the secular legal obligations that currently and routinely apply to them."¹⁹

Rweyemamu illustrates the major weakness in this majority approach to the ministerial exception: there is no clear constitutional foundation for it.²⁰After briefly mentioning the arguments over which procedural mechanism is appropriate for the exception,²¹the Rweyemamu court recognized that the roots of the exception "remain[] a matter of some debate."²²The court discussed, but never fully embraced, the three foundations commonly used to support the deferential approach: the Free Exercise Clause, the Establishment Clause, and an independent "right to choose ministers without government restriction," or a right to organizational autonomy that implicates both clauses.²³The court cited cases showcasing the full spectrum of the debate over the ministerial exception.²⁴These cases include, on one end of the spectrum, decisions holding that federal courts lack jurisdiction to hear even blatant claims of discrimination by ministers against their employers²⁵and, on the other end, decisions allowing ministers to proceed as long as their claims do "not infringe upon [an employer]'s freedom to select its ministers."²⁶Then, by analogizing to other cases, the Rweyemamu court granted deference to the church without explicitly stating its justification.²⁷

Without clarifying the foundation for the exception, the majority of circuit courts, like the Second Circuit in Rweyemamu, defer to religious organizations whenever a minister brings suit.²⁸Deference becomes especially troubling when certain unique or complex situations arise, such as when a church has possibly breached a minister's employment contract²⁹or when a minister claims sexual harassment.³⁰An emerging minority of courts thus resort to balancing church and government interests when employees of religious organizations claim non-religious discrimination.³¹For example, in Bollard v. California Province of the Society of Jesus, the Ninth Circuit chose to balance the interests of the parties to evaluate a minister's claim of sexual harassment where the church could "not offer a religious justification for the harassment" and actually "condemn[ed the harassment] as inconsistent with [its] values and beliefs."³²

This Comment argues that the emerging minority view is the correct constitutional approach because Supreme Court precedent has eroded all three foundations used to support the deferential approach. First, Employment Division, Department of Human Resources of Oregon v. Smith³³allows courts to apply neutral laws of generally applicability, such as Title VII,³⁴even when the law substantially burdens free exercise of religion.³⁵Though nearly all of the circuit courts have distinguished Smith as addressing individual free exercise versus a church's right to autonomy,³⁶the clear language of Smith suggests it may override the ministerial exception. Second, the Court's decision in Zelman v. Selman-Harris decided that if a law is neutral on its face and in its application, like Title VII, it does not violate the Establishment Clause.³⁷Third, a right-to-autonomy claim has been eroded by the Court's most recent decision directly involving intra-church disputes, Jones v. Wolf, where it held that neutral principles of law could be applied to religious organizations despite infringing organizational autonomy.³⁸

To the extent a right to church autonomy survives these cases, this Comment argues that it certainly does not exist in the deferential form of the current ministerial exception. This Comment contends that strict scrutiny review should be applied to church autonomy defenses and that courts should be allowed to consider evidence as to whether a proffered religious justification is merely pretext for discrimination. Finally, this Comment proposes an amendment to Title VII that protects ministers whose suits can be determined using neutral principles of law and also accommodates the need to limit intrusion into church affairs. Commentators have argued that a similar neutral-principles approach is needed but have failed to justify such an approach or demonstrate its feasibility.³⁹

Part I of this Comment describes the birth of the ministerial exception and the right to autonomy. Part II demonstrates that the deferential approach is not supported by the Supreme Court's current approach to the Free Exercise Clause, the Establishment Clause, or a right to church autonomy. Part III argues that, without further guidance from the Supreme Court, any existing First Amendment right to church autonomy should be weighed against the government's compelling interest in applying neutral laws. Finally, because of the current trend toward congressional standards of religious liberty, Part IV advocates an amendment to the current exceptions to Title VII to accommodate the interests of both ministers and religious organizations.

I. THE MAJORITY DEFERENTIAL APPROACH TO THE MINISTERIAL EXCEPTION

The current majority approach to conflicts between application of neutral employment laws and a religious organization's right to deal with its ministers as it wishes is to defer automatically to the organization's employment decision and dismiss the minister's suit.⁴⁰This approach is harsh in its application and inadequate to address situations where there is no genuine religious justification for the organization's actions, such as when ministers claim...