The Ministerial Exception Allows Racial Discrimination by Religions

Posted in: Civil Rights

The ministerial exception is a First Amendment rule that allows race discrimination cases against religious organizations to be dismissed.

Racial Discrimination Cases Are Dismissed

A federal district court in Georgia (2007) rejected on ministerial exception grounds the lawsuit by an African American pastor, the “director of worship arts,” for race discrimination. One of the things his pastor told him was “this is a white church, Shirley Caesar music won’t work here,” and “since you’ve come, the church is experiencing white flight.”

An African American Catholic priest alleged racial discrimination against his bishop and diocese. The Second Circuit (2008) ruled that the ministerial exception barred his race discrimination claim.

A Christian seminary’s tenured professor had his racial discrimination case barred by the ministerial exception by the Supreme Court of Kentucky (2014).

A Methodist African American pastor had his racial discrimination case dismissed by the Eleventh Circuit (2010) due to the ministerial exception.

The D.C. Court of Appeals (2005) dismissed a Caucasian woman school principal’s race discrimination case against the Archdiocese of Washington because of the ministerial exception.

The Seventh Circuit (1994) ruled that an African American woman minister’s race and sex discrimination case against the Methodist Church was dismissed by the ministerial exception.

A White woman’s lawsuit that claimed she was denied a pastoral position due to racial and sexual discrimination was dismissed by the Fourth Circuit (1985) due to the ministerial exception.

A White 67-year-old woman who worked for the Salvation Army had her race and age discrimination lawsuit dismissed by a federal district court in Michigan (2015) because of the ministerial exception.

A Hispanic woman’s national origin and gender discrimination claims against her Catholic bishop were dismissed by the Seventh Circuit (2003) due to the ministerial exception.

Years ago, there was one small victory. The Fifth Circuit (1980) allowed a White woman to proceed with a claim alleging Mississippi College “has discriminated on the basis of race by failing to recruit and hire Black faculty members.” The court relied largely on the ground that the plaintiff was a faculty member, not a minister.  With recent Supreme Court decisions, it is not clear if she would still win today.

The point about the refusal to allow racial discrimination lawsuits was made in a 2017 ministerial exception case in the Northern District of Illinois. In rejecting the plaintiff’s sexual orientation discrimination claim because he was a minister, the court observed:

it is notable that the ministerial exception even bars claims of race discrimination against religious organizations. Demkovich does not explain why the exception bars ministers from bringing claims of race discrimination—a form of discrimination that draws the strictest form of constitutional scrutiny—but would be overridden by a claim premised on marital status. The ministerial exception does apply despite the fundamental right to marry.

The ministerial allows any form of discrimination by religious organizations to proceed without lawsuit.

What is the Ministerial Exception?

What is this ministerial exception that was present throughout the previous paragraphs? It is a First Amendment rule the courts created to dismiss any discrimination cases—race, gender, national origin, sexual orientation, age, equal pay, disabilities, and so forth—against any religious employers—elementary and secondary schools, hospitals, universities, camps, orphanages, and more in addition to synagogues and churches. The ministerial exception is an affirmative defense. If the employer asserts it and wins, the lawsuit ends. The discriminatory conduct never gets reviewed. If you are a minister, your lawsuit ends, no matter what your employer has done to you.

The ministerial exception has been back in the news because of the Supreme Court’s recent decision in Biel and Morrissey-Berru, two cases about Catholic school teachers who claimed they were fired because they were developing breast cancer and getting older. Seven justices concluded the two Catholic elementary school teachers were ministers, and so their age and disabilities discrimination cases were dismissed.

Without the ministerial exception, if they got to court, the plaintiffs could win or lose, depending on the facts of their case. With the ministerial exception, plaintiffs always lose. The Supreme Court’s recent decision expanded the exception’s range even farther, freeing religious organizations from lawsuits when they fire their “ministers,” even for getting older or developing breast cancer, illegal action which is not supported by their religious beliefs at all.

I have long been an opponent of the ministerial exception. I believe the employees should get into court and win or lose there. By now, I have written numerous losing briefs on the subject. This term, the employees picked up two votes—Justices Sonia Sotomayor and Justice Ruth Bader Ginsburg. Those two justices understood that broadening the ministerial exception will end too many civil rights cases.

The Ministerial Exception Was Already Broad

Many people have been analyzing the Supreme Court’s cases about the ministerial exception, Hosanna-Tabor in 2012, and Biel and Morrissey-Berru on July 8, 2020. But other courts created the exception long before 2012. Usually the Fifth Circuit is given credit for creating the exception in 1972, in McClure v. Salvation Army, where Billie McClure alleged that she was paid less than her male colleagues and then fired because of her complaints about the inequalities. The court dismissed the case, reasoning that, under the First Amendment, the court did not want to intrude on the Salvation Army’s religious decision-making.

The courts have dismissed cases around the country ever since, with the Supreme Court giving them more courage to do so as it expands the exception to include more and more employees.

I was struck by the Political Gabfest’s recent podcast on the Ministerial Exception, with discussion, as always, with David Plotz, Emily Bazelon, and John Dickerson. They asked the question:

That when people think about discriminate, the idea that you if you’re a teacher at a Catholic school and the Catholic school decides, oh, you know, we don’t want to have black teachers here, we can do that and we can get rid of them because they’re black. Like, that seems completely crazy. But is that now allowed?

That is now allowed, and as the cases above demonstrate, was allowed before. The ministerial exception gives religious organizations freedom to discriminate any way they want, leaving the plaintiffs without any legal recourse, even if racial discrimination is at stake.

In 2011, as the Supreme Court was deciding its first, 2012 case, my UNLV colleague, Ian Bartrum, wrote an article called Religion and Race: The Ministerial Exception Reexamined (2011). He argued:

I argue in favor of robust doctrinal protections for church autonomy in most ministerial hiring decisions, but because race occupies a special and central place in our modern constitutional consciousness, I conclude that we cannot permit religious organizations to discriminate on that basis.

The law, however, has not listened. It did then and does still allow religious organizations to discriminate on the basis of race. In the ministerial exception, race is no different from any other characteristic.

Religious Organizations Did and Do Discriminate on the Basis of Race

Allowing religious organizations to be free from racial discrimination lawsuits does not help the cause of racial equality in the United States. Recent protests have called the media’s attention to the long-ignored work of Black Catholics for racial justice in their church. Professor Shannen Dee Williams, for example, in an essay entitled The Church Must Make Reparation for Its Role in Slavery, Segregation, observes that “it has taken so long for the institutional church and many non-Black Catholics to embrace the rally cry of #BlackLivesMatter.” It “must be said, too, that the recent Catholic statements on racism and rising protests fall way short when it comes to acknowledging the church’s role in the contemporary crisis and direct complicity in the sins of anti-Black racism, slavery and segregation in the modern era.”

Williams, who is an expert in Black Catholic history, reminds us of the history of racism in Catholicism:

The historical record is inundated with gut-wrenching examples of Black Catholic faithfulness in the face of unholy discrimination and segregation in white Catholic parishes, schools, hospitals, convents, seminaries and neighborhoods. Yet, this history is rarely incorporated into dominant narratives of the American Catholic experience.

The denial of the dignity and sanctity of Black life is a part of the DNA of this country. It is also a foundational sin of the American Catholic Church. Black Catholic history reveals that the church has never been an innocent bystander in the history of white supremacy. If there will ever be a chance for true peace and reconciliation, the Catholic Church must finally declare with all of its might and resources that Black lives do matter. The goal for Black people has never been charity; it is full justice, human rights, freedom and the complete dismantling of white supremacy, beginning with the church.

That “full justice” will not exist as long as the courts interpret religious freedom to include a ministerial exception that tosses racial discrimination lawsuits out of court.

Or age, disabilities, gender, national origin, sexual orientation, or any other discrimination prohibited by law. The courts should help people beat discrimination, not give religious organizations the right to discriminate against anyone they call a minister, no matter what the employee thinks her job is.

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