When can a religious group, like a church or school, lawfully fire an employee for violating its religious teachings? Under a constitutional rule called the "ministerial exception," religious groups have broad leeway to hire and fire "ministers"—broadly defined to include employees who perform important religious functions. But what about any employee like a secretary or janitor, who may not perform important religious functions? What legal protections do religious groups have when they hire and fire non-ministers?
This is the question presented in a spate of new cases now hitting appellate courts nationwide and likely, eventually, landing in the Supreme Court. It is also the question addressed in my forthcoming article in the Notre Dame Law Review, Religious Hiring Beyond the Ministerial Exception.
The article provides a comprehensive analysis of six potential legal protections for the religious hiring of non-ministers. Three are statutory: (1) Title VII's religious exemption, (2) Title VII's bona fide occupational qualification exemption; and (3) the Religious Freedom Restoration Act. Three are constitutional: (4) the church autonomy doctrine, (5) the freedom of expressive association, and (6) the Free Exercise Clause. For each protection, the article examines the key caselaw, breaks down the arguments for and against applying the protection, and identifies key pressure points and unanswered questions. The result is, I hope, a much-needed roadmap of an important issue of pressing interest to scholars, jurists, and practitioners alike.
