Does the First Amendment’s protection of religious expression mean religious organizations are free to discriminate on the basis of sex, disability, or race in hiring and firing employees? In 2012, the Supreme Court answered this question with a unanimous yes, finding that religious organizations are immune from liability for discriminating against their employees, as long as those employees are “ministers.” This broad protection from liability is called the “ministerial exception.”
The decision in Hosanna-Tabor was wrong for three main reasons. First, the Court did not clearly answer the question of which employees count as ministers, leaving space for religious employers to argue almost any of their employees are ministers under the ministerial exception. Second, the ministerial exception uses First Amendment protections for religion to protect decisions and actions that were not based on religion, thus becoming unmoored from its constitutional support. Third, the ministerial exception hollows out hard-won protections against discrimination.
But the decision in Hosanna-Tabor was partly right—the First Amendment does and should protect the right to freely exercise religion. Choosing the leaders of a religious organization is one area deserving such protection. The Court in Hosanna-Tabor had some right instincts but went in the wrong direction.
This Comment seeks to chart a better course for the ministerial exception. First, by looking more broadly at Supreme Court interpretations of the Religion Clauses in the First Amendment, I show that the decision in Hosanna-Tabor is not required by precedent, and in fact goes against precedent. Second, in shaping a better ministerial exception, I recommend additional factors that must be considered in determining whether an employee counts as a minister under the ministerial exception. Third, I sketch out a narrower immunity for religious organizations: Even if an employee is a minister, the religious organization is not immune from liability unless the discriminatory decision to hire or fire was based on a religious belief. I call this defense the Bona Fide Religious Decision defense.