Clear Circuit Split on Ministerial Exception Creates Possibility of High Court Review

Church, stock, religion, freedom

Under the ministerial exception, churches and church-supported schools often cannot be sued by their employees.

The U.S. Supreme Court could clarify a split in the federal circuit court of appeals over the reach of a doctrine known as the ministerial exception, a concept that often insulates churches from employment discrimination laws.

Under the ministerial exception, churches and church-supported schools often cannot be sued by their employees because the employee is deemed a “minister.” The ministerial exception is based on the idea that the government should not intervene in the selection of an organization’s religious leaders. The idea is that the government should not be entangled with religion.

However, many courts have interpreted the ministerial exception quite broadly to prohibit teachers at religious schools from suing for disability discrimination or age discrimination. The religious organizations often claim that these teachers are “ministers” within the meaning of the ministerial exception.

However, a three-judge panel of U.S. Courts for the Ninth Circuit refused to apply the ministerial exception in Biel v. St. James School in December 2018. As I reported in a previous story, the Ninth Circuit panel reinstated the disability discrimination claim of former fifth-grade teacher Jessica Biel, who alleged she was terminated by a religious school when it learned she had breast cancer. The Ninth Circuit panel reasoned that Biel taught secular subjects and was not a “minister.”

The school sought en banc, or full panel, review from the entire body of Ninth Circuit judges. However, on June 25, 2019, the Ninth Circuit refused to hear the case en banc.

This means that the religious school might seek review from the U.S. Supreme Court.

Nine judges dissented from the Ninth Circuit’s denial of en banc review in an opinion written by Judge Ryan D. Nelson. “In applying the ministerial exception, our court should look to the function performed by employees of religious bodies,” he wrote. “Doing so would honor the foundational protections of the First Amendment and ensure all religious groups are afforded the same protection.”

Reasonable minds can differ on the reach of the ministerial exception. Supporters of a broad interpretation of the exception point to the importance of protecting the liberties of religious organizations. Supporters of a narrower interpretation of the exception point out that a wide application of the doctrine can lead to rank discrimination by religious employees, even to employees who aren’t really ministers.

The Supreme Court last addressed the ministerial exception in its 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.

If the Biel case is appealed, it might be time for the court to address it again.

David L. Hudson Jr. is a Freedom Forum Institute Fellow for First Amendment Studies, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).

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