The Ministerial Exception: Our Lady of Guadalupe School and Antidiscrimination Employment Laws.

• Author: Yeini, Shelly Aviv

TABLE OF CONTENTS I. INTRODUCTION 956 11. THE SETTINGS FOR THE MINISTERIAL EXCEPTION 958 A. Freedom of Religion 958 B. Antidiscrimination Employment Law 963 III. DIFFERENT MODELS OF INAPPLICABILITY OF ANTIDISCRIMINATION LAWS TO RELIGIOUS INSTITUTIONS 966 A. The United States 967 B. Israel 975 C. European Court of Human Rights 980 IV. THE UNBALANCED COMBINED OUTCOME OF HOSANNA-TABOR AND OUR LADY OF GUADALUPE 986 A. The ME as a Hermeneutical Universal Issue 986 1. Correlation between the Level of State Involvement and the Scope of the ME 987 2. Title and Function 988 B. The United States' Parting Paths from the Universal Understanding of ME 990 V. CONCLUSION 998 I. INTRODUCTION

In July 2020, the Supreme Court of the United States decided one of the most important cases in employment law in recent years--Our Lady of Guadalupe School v. Morrissey-Berru. (1) In Our Lady of Guadalupe, the Supreme Court decided by a 7-2 majority to interpret the "Ministerial Exception" (ME) broadly, expanding its applicability to teachers that are not titled ministers, in line with an assessment of "their core responsibilities as teachers of religion." (2)

The ME precludes the application of antidiscrimination laws "to claims concerning the employment relationship between a religious institution and its ministers." (3) This notion appears in various democracies, many of which differ in their constitutional models and their church-state relations. (4) It would appear that the ME attempts to confront a shared problem; one of protection against discrimination versus freedom of religion. A democracy strives to protect employees from discrimination, to protect the individual, but also, in a wider sense, to alter social conditions and promote an egalitarian society. (5) At the same time, democracies wish to accommodate freedom of religion, which cannot be fulfilled without the existence of religious organizations, as "religious communities traditionally and universally exist in the form of organised structures." (6) Being able to choose their staff on a religious basis is at the heart of the existence of religious institutions. (7) However, the fulfillment of such freedom often discriminates against workers on the basis of religion, gender, sexual identity, and so forth. Such a clash between freedom of religion and employment antidiscrimination laws seems unavoidable in liberal democracies and poses a major challenge to courts worldwide.

Being a shared problem of distinct hermeneutic universal characteristics, while legal systems and tools differ, states often reach quite similar outcomes with regard to the application of the ME. This Article examines the applicability of the ME in three legal contexts: US courts, Israeli courts, and the European Court of Human Rights. While for many years, the legal outcome of the ME led to quite similar results across these three court systems with distinct shared principles, the latest US judgment of Our Lady of Guadalupe, combined with the judgment of Hosanna-Tabor, has created an American version of the ME that shifts the balance of antidiscrimination labor laws and religious autonomy to bluntly favor religious autonomy. It implies that religious institutions do not need to provide a religious reason for their discriminatory decisions, (8) and that the ME applies to the entire sector of teachers in religious institutions. (9) This shift of balance created by the combined outcome of Hosanna-Tabor and Our Lady of Guadalupe removes the United States from the universal understanding of the ME. This article suggests that such a shift in balance and removal from the universal conception of the ME undermines antidiscrimination employment laws excessively. This does not mean that between Our Lady of Guadalupe and Hosanna-Tabor should be overturned, but rather that the unbalanced result of the two decisions calls for a third ruling that will moderate their combined result. American ME doctrine must be completed in a manner that bridges the gap between Our Lady of Guadalupe and Hosanna-Tabor to create a well-balanced model of the American ME. This can be done by setting two different subversions of the ME: one that applies to discriminatory decisions against employees of religious functions (such as teachers) that require religious considerations for the decision, and another that applies to discriminatory decisions against religious leaders and does not require religious considerations for the decision.

This Article proceeds as follows. Part I describes the settings of the ME and the clash between antidiscrimination employment laws and religious autonomy in liberal democracies. Part II analyzes ME doctrine in the United States, Israel, and Europe and introduces church-state relation models and the main judgments and legislation that shaped such ME models. Part III offers a new perspective on the deviation of American ME post-Our Lady of Guadalupe from the universal understanding of the ME and suggests a method of settling such deviation in future case law. This settling is not suggested because of a requirement that US law should comply with universal ME principles, but rather because strong deviation from accepted models of the ME might call for an examination of the current model and the balance it strikes.

2. THE SETTINGS FOR THE MINISTERIAL EXCEPTION

   The ME is the crux of the clash between freedom of religion and antidiscrimination employment laws. Before diving into the comparative analysis of the ME and the scope of its applicability, the driving forces behind it must be understood.

   1. Freedom of Religion

      The relationship between the state and the church (or synagogue, mosque, and so on) (10) is at the center of much academic discussion. In the past, religion and the state were deeply intertwined. The earliest recording of the relationship between state and religion is of Sumerian origin (not surprisingly, as they invented writing) and describes the singular identity of the state and religion:

      In [the Sumerian Kingdom], state and religion were entwined. The state was an absolute monarchy with religion for an ideology. The king was god's representative on earth, and immediately beneath him were the priests. The capability to read and write was confined to the priests and some scribes, and they ran the state with the help of a fairly large bureaucracy. The role of the masses was to serve god, which in effect meant serving the king. (11) The Sumerian example is important, as the Sumerians, who are also attributed with inveting "the state" (alongside writing and the sailboat), managed to maintain their state for a remarkably long time of between eight hundred and one thousand five hundred years. (12) Such longevity is attributed to the harmonization between Sumerians' belief system and the social and political structure they maintained. (13)

      The Sumerians, while remarkable, were one of many ancient cultures that unified state and religion. The major break of such a pattern took place with ancient Athens and the birth of the democratic state. (14) Decisions were made by the Assembly of Citizens, and leaders were chosen on the basis of their skills and merits. (15) Mueller explains that there was no ideology behind such separation, but rather, common sense: "This separation arose not because the Athenians had made a conscious decision to separate the two sets of institutions, but rather because of their reverence for reason. The Greeks were simply too rational to let superstition influence their choices in the public domain." (16)

      In modern thought, the theoretical linkage between separation of state and church dominates the discussion. Huntington claims that the separation of church and state is a distinct feature of Western civilization. (17) However, in practice, liberal democracies do not always maintain such clear separation, as "[d]emocratic states in the West subsidize religious organizations and religious schools, allow or even sometimes compel religious instruction in public, supposedly secular schools, and enact laws, which advance religious agendas." (18) Admittedly, different states have different relationships between religion and state, which, as will be shown later, influence their discussion over the applicability of the ME. On one side of the scale sit countries such as the United States, whose constitution calls for a separation of state and church, (19) and on the other side, countries such as Israel, which identifies as a Jewish state, (20) anchoring Judaism as part of its constitutional mechanism. (21) While "Israel's government involvement in religion is low for the Middle East/North Africa (MENA) region [it is] relatively high on a glohal scale" and definitely among democracies. (22) An additional model worth noting is that of European states. European states have different models for state and church relations, in which "[t]he position and meaning attributed to religion...may differ, but, in general, constitutional discourse no longer has a religious basis." (23) Models of state involvement in religion range widely, with some including complete separation and even hostility toward religion (France) and others including state-established churches (the UK) and church tax collection by the states (Germany). (24) However, the European Court of Human Rights provides some insight regarding the shared principles uniting such different models and especially so with regard to the balance between freedom of religion and other rights. (25)

      Freedom of religion is a shared principle of liberal democracies that has "always been recognized by liberal regimes as a fundamental right, a right intended to enable believers to carry out their religious practices without interference." (26) Freedom of religion appears prominently in the constitutions of many Western nations, "ascribing powers, privileges, and rights to religious persons while subordinating others, including the state, to these...