Religious free exercise and anti-discrimination law.

• Author: Moreland, Michael P.
• Position: Symposium: A Second-Class Constitutional Right? Free Exercise and the Current State of Religious Freedom in the United States

I will speak about the conflict between anti-discrimination statutes and religious free exercise. I want to talk about these issues specifically in light of two areas of contemporary religious free exercise litigation and controversy. So much of the church-state debate seems to be driven by issues such as Ten Commandment displays, school funding, and other highly publicized areas. Not to minimize the significance of those cases, but there are areas of the law that seem to generate less attention but at the same time seem to pose deeper and more interesting issues to the question of the First Amendment and church-state issues and religious free exercise. So the two things that I am going to talk about are, first, the set of cases and policy issues around the so-called ministerial exception, and, second, a set of cases dealing with mandated benefits provisions, paying specific attention to a recent New York case and its companion case in the state of California requiring employers to provide contraceptive drug prescription benefits to employees.

First with respect to the ministerial exception: for those of you who have had a course in employment discrimination and covered Title VII of the Civil Rights Act, the major federal employment anti-discrimination statute, you know that the statute already provides an exception for religious organizations in their decisions to discriminate on the basis of religion. That is, the prohibition on discrimination based on religion in Title VII does not apply to religious institutions. This seems perfectly sensible to most people. The Supreme Court upheld that exemption in the face of an Establishment Clause challenge many years ago. (1) But the ministerial exception is a non-statutory, judicially-created exemption that provides that religious institutions are exempt from Title VII's requirements altogether when claims are brought challenging the employment decisions of religious institutions with respect to "ministers." This issue has never been decided by the Supreme Court, but a number of circuits--in fact all of the circuit courts of appeal with one slight exception that we will talk more about momentarily--have upheld this exception.

The argument presented by these circuit courts of appeals are probably familiar to those with a constitutional law background who know about the constitutional avoidance doctrine that is sometimes used by the courts in the face of a constitutional problem that might be posed. In the case of the ministerial exception issue, courts have held that Title VII does not apply to the employment decision made about the ministers of a religious institution so as to avoid a possible free exercise problem posed by enforcing the employment discrimination statute against the religious institution.

Now, what is the justification for this? There are at least two, and here I am borrowing heavily from Judge Buckley's decision in the D.C. Circuit's EEOC v. Catholic University (2) case from the mid-1990s. The first was that the imposition of secular standards of employment non-discrimination on a church's employment of ministers would burden free exercise. The second is that the state's anti-discrimination interest is outweighed by the church's constitutional autonomy. Basically this justification means that the church autonomy doctrine implies that the state's anti-discrimination interest in enforcing employment...