Pair of alums with legal backgrounds say the ministerial exception ‘has gone too far’

Under the religion clauses of the First Amendment, the government cannot tell houses of worship who they may hire—or fire—as their ministers. But how widely should that be applied? Who, exactly, should be considered a minister? And to what extent should religious employers be exempt from laws protecting workers’ rights? 

Several recent court decisions have pushed the boundaries of those questions, raising difficult issues for faith-related employers and their employees. As a result, two YDS alums with legal backgrounds are warning those with theological training to be aware of the increasingly complex legal situation and how it could affect them. Chief among their concerns is the shrinking availability of legal relief for employees who have been wrongly fired or otherwise harmed by religious organizations they work for. 

“All sorts of employment claims that people rely on for legal relief are now unavailable to hundreds of thousands of workers at faith-based organizations across the United States,” says Matt Tedeschi ’13 M.A.R., marketing manager at a Chicago employment law firm, where he also serves as a special projects paralegal and sits on the leadership team.

“This is true even in the most welcoming of religiously affiliated settings,” adds the Rev. James deBoer ’11 M.Div., an ordained minister in both the United Church of Christ (UCC) and the American Baptist Churches (ABC)and an attorney at Stulberg & Walsh LLP, a workers’ rights law firm in New York City

Finding a ministerial exception

The controversy surrounds a religious liberty legal doctrine known as the “ministerial exception.” The exception protects congregations, denominational offices, parochial schools, and other religious organizations from state interference when they hire and fire their ministers, even in circumstances that violate certain federal employment laws, such as those that bar discrimination based on “race, color, religion, sex, and national origin.” Few would dispute that religious organizations have wide constitutional latitude when it comes to what they teach and who they employ. The questions are how far and to whom the ministerial exception applies, and how decision-makers are to know the limits. 

In 2012, the U.S. Supreme Court ruled that a ministerial exception could be applied to a teacher at a Lutheran school. The teacher had tried to sue the school under the Americans with Disabilities Act when she was dismissed after being diagnosed with narcolepsy. However, the justices ruled that because the school considered the teacher a minister, federal anti-discrimination laws did not apply. The Court noted, among other factors, that the teacher had undergone “a significant degree of religious training” and played an important role “in conveying the church’s message and carrying out its mission.” 

As Justice Samuel Alito and Elena Kagan wrote in their concurring opinion, “Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance.”

In 2020, the Supreme Court reaffirmed and expanded the ministerial exception when it ruled that two lay teachers at Catholic schools were also covered by the ministerial exception. One teacher had tried to sue for age discrimination and the other for being fired after a terminal cancer diagnosis, but the justices ruled those discrimination claims could not go forward. Rather, the ministerial exception applied because the teachers performed “vital religious duties” in addition to their secular functions. These “vital religious duties” referred to leading their classes in prayer a few times a week and accompanying students on their way to school Mass.

A growing number of employment lawsuits across the country have since been dismissed under the ministerial exception. “As long as an employee at a faith-based institution is engaged in really any religious function, that person can be called a ‘minister’ and essentially lose almost all employment protections under the law,” says Tedeschi. deBoer adds: “And the discrimination does not have to have a theological basis for the exception to apply. You could one day have a disability, or you could, heaven forbid, become a person over the age of 40. Anybody can be discriminated against.”

Religious groups argue that the ministerial exception is necessary to protect them from government interference in shaping and conducting their faith missions. But deBoer and Tedeschi worry that all too often groups are taking advantage of the exception and treating workers unfairly in situations that have no bearing on the groups’ creeds or missions. 

The ministerial exception has been used not only in discrimination cases, but also in lawsuits alleging sexual harassment, hostile work environments, retaliation, breach of contract, and more. “Religious groups are using it as a get-out-of-jail-free card instead of saying, ‘We’re going to abide by our foundational values,’” Tedeschi asserts.

Who is a minister?

The Supreme Court has so far declined to establish what it calls a “rigid formula” to determine who should be considered a minister covered by the exception. Justice Samuel Alito argued for a broad interpretation that considers whether an employee’s function and duties advance the religious mission of the institution.

Lower courts have been divided over how widely that applies. One recent case raises the issue of whether a customer service representative at a Christian humanitarian organization qualifies for the ministerial exception because she might discuss the group’s faith motivations and possibly pray with donors. The group had rescinded her job offer after they discovered she was in a same-sex marriage. In August, a federal appeals court ruled the ministerial exception could be applied to her.

The First Liberty Institute, a legal organization that focuses on defending religious freedom cases has urged the Supreme Court to support widespread application of the ministerial exception. “The Free Exercise Clause protects mosques, synagogues, churches, and other religious organizations’ right to freely convey their religious teachings through their ministers,” the group  asserted in a friend-of-the-court brief. “Any definition of minister that confines ministers to particular titles or that prefers ministers in particular organizational structures, such as hierarchical, formal churches, must be rejected. Likewise, any definition that requires judicial scrutiny into religious doctrinal questions must also be rejected.” 

deBoer and Tedeschi argue that the ministerial exception is being applied too broadly. “Frequently, a court defers to the religious employer’s viewpoint, so the court would accept at face value an institution’s claims that someone is acting as a ‘minister’ of its faith,” says deBoer. “So, for example, the Jewish football coach at the Catholic high school is all of a sudden considered a minister of the Catholic faith,” Tedeschi says. “If he tried to sue for disability discrimination, for example, the school could simply get his claim dismissed by saying that he led his players in prayer before each game, which it views as a ‘vital religious duty’ in its faith tradition.”

“I think the next frontier will be [faith-related] health institutions,” deBoer adds, affecting “nurses, social workers, patient care assistants at hospitals, even cafeteria workers because the ministry of providing food goes way back to the beginnings of Christianity and can be framed as a religiously-imbued job function. Really, no one is safe.”

The issue is deeply personal for Tedeschi, who says he first heard of the ministerial exception during a seminar on religion and the law at Yale. He had no idea it would one day be used against him after he was fired from his job teaching religious studies at a Catholic high school. Tedeschi was terminated in 2017 after he asked the school administration to stop student harassment resulting from their discovery that he was gay. The administration also cited his passing on a report of a student sexual assault as grounds for termination. Tedeschi filed charges of discrimination, harassment, and retaliation, but the school moved to dismiss his claims on the grounds of ministerial exception. His YDS degree was one of the factors used to support the idea that he qualified for the ministerial exception, even though his job duties were academic and did not involve saying Mass, celebrating the sacraments, or preaching. 

“I want to use my story to highlight that this is happening,” he says. He has written about the predicament recent Supreme Court decisions have put workers in, and he has also started a podcast, Dismissed with Prejudice, on which he interviews other LGBTQ+ employees who have been fired from faith-based organizations. 

Effect on church communities and workers 

deBoer notes ironic and troubling consequences of the exception for otherwise “welcoming” or progressive communities. Workers may seek out such places as refuge and be lulled into a sense of complacency after years of positive experiences, only to be shocked when that very community attempts to shield itself from a claim of discrimination or harassment by invoking the ministerial exception. “Denominations need to decide whether they are truly places of hospitality and welcome or whether such statements are mere window dressing,” he says. 

As a minister and an employment lawyer, deBoer says he is also concerned that the exception removes incentives for religious groups to seek mediation or investigate possible wrongdoing. He cites a case in his own denomination when an employee alleged racial discrimination at the UCC national office. The case was dismissed owing in part to the ministerial exception. “I take seriously any assertion of a worker experiencing racial discrimination at the national office, but by virtue of the ministerial exception, now we’ll never know what happened and so it’s doubtful any of us are going to learn from it.” deBoer says. Homing in on the topic of institutional accountability, deBoer has authored a law review article published this year in American University’s Journal of Gender, Social Policy, and the Law on situations when a national church body’s governing rules would prevent the ministerial exception from applying to its constituent entities.

Further, deBoer notes that victims of the ministerial exception can experience a profound vocational crisis, as they may be shut out of a profession they spent years training for and deeply loved, highlighting how an abstract legal doctrine can have long-lasting personal consequences for those it affects. 

Promoting justice and dignity

In the current legal situation, the two alums say many employees at faith-based institutions need to be aware that they may have limited workplace protections. Tedeschi has urged workers to lean into their faith traditions and build “people power” through solidarity. “With few other options, organizing and forming strong communal bonds can do a lot to protect individuals.”

The two also urge leaders at faith-based organizations to consider the broader implications of automatically invoking the ministerial exception, especially at a time when many Americans are skeptical about religion. “The extent to which institutions are professing values of inclusivity and love and compassion and then hiding behind the ministerial exception continues to provide a justification for the skepticism,” deBoer says. “The effect of the ministerial exception is bringing out, empowering, and rewarding the worst instincts in religious institutions.” The effect, he adds, is the reinforcement of the prevalent but misguided perception that prejudice is a core aspect of religious expression.

deBoer is co-coordinator of the Social Justice and Witness Task Force of the New Jersey Association of the UCC. The task force has created educational materials about the ministerial exception, including a pledge that promises “to help ensure that church workers are treated fairly and with dignity.” 

“I would love for faith-based institutions to start showing that we really are different,” deBoer says. “We shouldn’t be the same as many secular employers that do what they can to sweep things under the rug in order to minimize liability.”

Kim Lawton is an award-winning reporter, producer, and writer who has worked in broadcast, print and online media. For nearly 20 years, Lawton was Managing Editor and Correspondent for the highly acclaimed national public television program “Religion & Ethics NewsWeekly.”