Splitting the Difference: A Bright-Line Proposal for the Ministerial Exception

• Author: Joseph Capobianco
• Position: J.D. 2021, The University of Texas School of Law
• Pages: 451-484

Splitting the Difference: A Bright-Line Proposal for

the Ministerial Exception

JOSEPH CAPOBIANCO*

ABSTRACT

Last term, for the second time in a decade, the Supreme Court weighed in on

the so-called “ministerial exception.” The ministerial exception derives from

both the Free Exercise Clause and the Establishment Clause. It permits reli-

gious employers—whether Catholic schools or Jewish nursing homes—to fire

their employees for any reason, even reasons prohibited by antidiscrimination

laws. The exception therefore straddles two independent, powerful interests: the

interests reflected in the First Amendment for religious freedom, and the inter-

ests reflected in the antidiscrimination laws.

The primary problem for courts in applying this exception is defining who is

a minister. Most people likely would agree a Catholic priest is a minister and

the Catholic church should have the right to decide that its priests will all be

male. Similarly, most would likely agree that a janitor is not a minister and the

Catholic church should not have the right to decide that all its janitors be male.

But what about other employees like the nurse at a Jewish hospital? Or the pro-

fessor at a Christian university? Or the press secretary for the local Catholic

church?

This Note contributes by proposing a bright-line test to answer these ques-

tions. Law review articles, lower courts, and the Supreme Court have put for-

ward their own tests. But each of these tests is functional in nature or

deferential to religious entities. This Note analyzes these tests and finds them

unable to protect the powerful interests at stake in the ministerial exception.

This Note therefore argues for a bright-line test. It argues that employers and

employees should contract who is a minister before the employment relationship

begins. The test will adequately protect both the interests reflected in the First

Amendment and the interests protected in antidiscrimination laws by giving

employees notice and bargaining power and giving employers control.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453

I. THE MINISTERIAL EXCEPTION’S HISTORY. . . . . . . . . . . . . . . . . . . . 456

* J.D. 2021, The University of Texas School of Law. I would like to thank my parents, Eugene and

Elizabeth Capobianco, and my brother, John A. Capobianco, for their comments. I also thank Katerina

Aldereguia and Weldon Sloan for the helpful advice in writing this Note. Finally, I thank my Religious

Liberty professors, Professors Sasser and Young, for inspiring my interest in this area of the law. ©

2022, Joseph Capobianco.

451

A. The Ministerial Exception Has a Long History, with Roots

Going Back to England and the Early Colonies . . . . . . . . . . . 456

B. The Court’s Early Interpretations of the First Amendment

Recognized Church Autonomy Principles . . . . . . . . . . . . . . . 457

C. The Ministerial Exception Began in the Circuit Courts and

Slowly Expanded . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 459

D. The Supreme Court Recognized the Circuit Courts’

Ministerial Exception and Created a Function-Focused Test

to Determine Who is a Minister . . . . . . . . . . . . . . . . . . . . . . . 460

II. DEFINING WHO COUNTS AS A “MINISTER”—AS PRECISELY AS

POSSIBLE—IS IMPORTANT BECAUSE MISAPPLICATION OF THE

EXCEPTION SEVERELY HARMS POWERFUL INTERESTS . . . . . . . . . . . 463

A. Religious Entities’ Interest in Choosing Ministers and the

Individual’s and Society’s Interest in Antidiscrimination Are

Powerful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464

B. Misapplying the Ministerial Exception Severely Harms Both

Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 465

III. CURRENT TESTS ARE TOO IMPRECISE. . . . . . . . . . . . . . . . . . . . . . . 468

A. The Function-Focused Test Insufficiently Protects Religious

Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469

1. Description of the Function-Focused Test . . . . . . . . . . . . 469

2. Issues with this Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470

B. The Deferential Test Insufficiently Protects the Individual’s

and Society’s Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 474

1. Description of the Deferential Test . . . . . . . . . . . . . . . . . 474

2. Issues with this Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475

IV. A BRIGHT-LINE TEST, REQUIRING THE CHURCH AND EMPLOYEE TO

AGREE TO “MINISTER” STATUS IN CONTRACT BEFORE

EMPLOYMENT MORE PRECISELY BALANCES THE INTERESTS . . . . . . 477

A. Description, Illustration, and Basis for the Proposed Rule . . . 477

B. Benefits of this Approach. . . . . . . . . . . . . . . . . . . . . . . . . . . . 479

1. This Approach Remedies the Concerns of the Other Tests 479

2. This Approach Sufficiently Protects Both Interests . . . . . 480

452 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 20:451

V. COUNTERARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481

A. This Approach Raises Public Perception Concerns and,

Relatedly, Might Violate State Contract Law Prohibiting

Agreements Against Public Policy . . . . . . . . . . . . . . . . . . . . . 481

B. The Proposed Approach is Both Overinclusive and

Underinclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 482

C. This Approach Hurts Small Religious Entities . . . . . . . . . . . . 483

VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484

INTRODUCTION

Elevators rarely crash.

1

Nick Paumgarten, Up and Then Down, NEW YORKER, Apr. 21, 2008, https://www.newyorker.

com/magazine/2008/04/21/up-and-then-down [https://perma.cc/R5QT-QYND].

But when they do, it is usually due to human error.

2

However, in this case, the pilot had an excuse.

3

He could not see the Empire State

Building through the thick fog.

4

He crashed his B-25 bomber into the seventy-

ninth floor of the Empire State Building—right into two elevators.

5

The elevators’

hoists snapped as the safety cables gave way. The two elevators plummeted to the

ground.

6

One of the elevators was empty because its attendant had just left her

post to smoke a cigarette.

7

The other elevator was not empty: an attendant was

trapped inside as the metal cell fell. Air pressure built up in the shaft and a thou-

sand feet of cable amassed at the bottom of the pit. Ultimately, it was not an easy

landing, but the attendant survived.

8

Elevator crashes like this are rare because

there are simple rules—such as do not force open closed doors or crash a bomber

into the hoists—that, if followed, will guarantee a safe ride.

9

The ministerial exception has no similar bright-line rules—and, correspondingly,

there are more problems. The First Amendment provides in part that “Congress shall

make no law respecting an establishment of religion, or prohibiting the free exercise

thereof.”

10

The ministerial exception is derived from these words—both the

Establishment Clause and Free Exercise Clause.

11

The ministerial exception protects

1.

2. Id.

3. Id.

4. Id.

5. Id.

6. Id.

7. Id.

8. Id.

9. Id.

10. U.S. CONST. amend. I.

11. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC., 565 U.S. 171, 188–89 (2012).

This Note focuses on the ministerial exception’s application to these laws—those recognized by the

Supreme Court.

2022] A BRIGHT-LINE PROPOSAL FOR THE MINISTERIAL EXCEPTION 453