Why the government cannot tell a church who its ministers are

Imagine, and let me label this plainly as a thought experiment, that the federal government passed a law saying that no congregation could call a new pastor until a federal agency had reviewed the choice and decided that the candidate was the best-qualified person for the job. The review would be fair, the rules would be written by experts, and an appeals process would let a rejected candidate challenge the decision. Every step would be reasonable-sounding. Now ask yourself: does that church still choose its own pastor?

Of course it does not. The agency does. And once the agency picks the pastor, it has a say in what gets preached, how the sacraments are administered and what the congregation believes. That is why the First Amendment is read to forbid the arrangement, and the rule that implements it is called the ministerial exception. It is one of the least appreciated and most important protections in American law. It means that when a church or synagogue or mosque decides who will teach its faith, the government stays out of the room.

Today I want to explain where the rule comes from, what the two big Supreme Court cases decided, who counts as a "minister" for this purpose, and why the rule has real limits that its critics are right to point out. I will give you the strongest objection at full strength, because the ministerial exception is not a blank check, and anyone who tells you it is has not read the cases.

The old problem: kings and bishops

Start with history, because the Founders did. For centuries in England, the Crown controlled the church. Henry VIII broke with Rome in the 1530s and had Parliament declare the king the supreme head of the Church of England. His daughter Elizabeth I was given the title of supreme governor under the Act of Supremacy of 1559. The monarch picked bishops. Parliament prescribed the prayer book, and ministers who did not follow it could lose their jobs or worse. Much of the Puritan and Baptist dissent that sent people across the Atlantic was a protest against exactly this: the state deciding what the church teaches and who teaches it.

The fight was older than that. Magna Carta, in 1215, begins by promising that the English church shall be free. The medieval struggle between popes and kings over who would appoint bishops, known as the investiture controversy, was a struggle over the same question. The Supreme Court, in the 2012 case I will describe, traced the history and concluded that the founding generation knew from experience that government control over religious appointments was a danger to be guarded against.

You can see the same instinct in the story of Baptists, Madison and the Virginia fight that put religious liberty first, where colonial Virginia licensed preachers, and in the American practice that followed.

Madison's 1811 vetoes

The best American evidence comes from James Madison, the principal author of the First Amendment. As President, in February 1811, Madison vetoed a bill that would have incorporated the Protestant Episcopal Church in Alexandria, in what was then part of the District of Columbia. The bill would have set out rules for the church's governance, including provisions for its vestry and for the care of the poor. Madison objected that the bill gave Congress a hand in the internal affairs of a church, which he said violated the principle of separation between religious institutions and civil government. A few days later he vetoed a bill that would have granted land in the Mississippi Territory to a Baptist church, on the same general principle: the government should not be in the business of managing or favoring a church's affairs.

Notice that these vetoes protected an Episcopal church and a Baptist church alike. The principle is not about favoring one denomination. It is about leaving the church to govern itself.

McClure v. Salvation Army, 1972

For most of American history there was no occasion for the courts to articulate this rule, because there were few laws that told employers how to treat their employees. That changed with the Civil Rights Act of 1964, which banned employment discrimination on the basis of race, color, religion, sex and national origin. The law exempted religious organizations from the ban on religious discrimination, but not from the other categories.

The question arose in McClure v. Salvation Army, decided by the Fifth Circuit in 1972. Billie McClure, a female officer in the Salvation Army, said she had been paid less than male officers and fired in retaliation for complaining. The court held that Title VII could not be applied to the relationship between a church and its ministers without raising serious First Amendment problems. It was the first major recognition of the ministerial exception, and over the next four decades every federal court of appeals that considered the question adopted some form of it. The Supreme Court did not address the question until 2012.

Hosanna-Tabor, 2012

The case that reached the Supreme Court was Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Cheryl Perich taught at a Lutheran school in Redford, Michigan, run by a congregation of the Lutheran Church-Missouri Synod. The Synod distinguishes between "called" teachers, who are formally commissioned as ministers after religious study and an assessment by the church, and "lay" teachers. Perich was a called teacher. She taught secular subjects, but she also taught a religion class, led her students in prayer each day and took them to chapel services, and she was formally given the title "Minister of Religion, Commissioned."

She went on disability leave, and when she wanted to return, the school said it had already hired a replacement and suggested she resign. She refused and threatened to sue under the Americans with Disabilities Act. The school fired her, saying that threatening a lawsuit violated the church's teaching that disputes among Christians should be resolved internally. The Equal Employment Opportunity Commission sued the church on her behalf, claiming retaliation.

The Court ruled 9-0, in an opinion by Chief Justice John Roberts, that the ministerial exception exists and that it barred the suit. Two features of the opinion deserve attention.

1. The rule rests on both religion clauses. The Establishment Clause, the Court said, prohibits government involvement in ecclesiastical decisions. The Free Exercise Clause protects a church's right to shape its own faith and mission through its appointments. Requiring a church to accept or retain an unwanted minister, the Court said, interferes with the internal governance of the church and deprives it of control over those who will personify its beliefs.
2. The Court refused to adopt a rigid formula. It considered four things in Perich's case: the formal title the church gave her, the substance reflected in that title, her own use of the title, and the important religious functions she performed. The Court said it was "reluctant" to adopt a rigid formula. Chief Justice Roberts also took on the government's argument that a general rule against employment discrimination can apply to churches, holding that the case involved the church's relationship with its ministers, not a general regulation.

Justice Clarence Thomas wrote separately to say that the courts should defer to a religious organization's good-faith view of who is a minister. Justice Samuel Alito, joined by Justice Elena Kagan, wrote separately to say that the label "minister" is not the key, and that the function matters, because many faiths do not use that word. That concurrence set the stage for the next case.

Our Lady of Guadalupe, 2020

Eight years later, the Court took two more cases together. In Our Lady of Guadalupe School v. Morrissey-Berru, a teacher at a Catholic school in Hermosa Beach, California, claimed her contract was not renewed because of her age. In the companion case, a teacher at a Catholic school in Torrance, California, claimed disability discrimination. Neither had the title "minister." Neither had been through the sort of formal commissioning that Perich had. The Ninth Circuit ruled for the teachers on that basis.

The Supreme Court reversed, 7-2, in an opinion by Justice Alito. The Court said that what matters is what an employee does. Both teachers taught religion classes, led students in prayer, brought them to Mass and were responsible for helping to transmit the faith to the next generation. The Court said that this is the key: the educating and forming of young people in the faith is at the center of the mission of a church school. "A religious institution's explanation of the role of such employees in the life of the religion in question is important," Alito wrote, and courts should give weight to it. The title is relevant but not controlling.

The dissent, written by Justice Sonia Sotomayor and joined by Justice Ruth Bader Ginsburg, argued that the Court had gone too far. It said the majority gave too much deference to the school and that the teachers in question had far less religious training and responsibility than Perich. That is a serious argument. I will return to it.

Who counts

If you are a church, a school or a charity, the practical question is whether your employees are covered. The cases suggest the following questions, and a court will consider the answers together:

• What does the person actually do? Teaching the faith, leading worship or prayer, guiding spiritual formation and representing the faith in public are the central functions.
• How does the organization describe the role? Written job descriptions, handbooks and employment agreements that describe a religious mission matter.
• Does the person hold herself out that way? Using a title, taking a housing allowance reserved for ministers, or presenting herself as a religious leader counts.
• Is the employer a religious body? The exception protects religious institutions, not secular companies.

A custodian, an accountant or a cafeteria worker at a church school is generally not a minister, and the ministerial exception does not cover them. Other protections may apply, including statutory religious-employer exemptions, but that is a different legal question.

The strongest objection: can the rule shield wrongdoing?

Here is the best case against the ministerial exception, and I do not want to be glib about it. The rule means that a person who was fired from a religious organization cannot take her employer to court for discrimination or retaliation under certain federal laws, even if she was treated unfairly. And critics ask: what about the teacher who was fired for reporting harassment, or for illness, or for age? What about a church that hides behind the label? Justice Sotomayor's dissent in the 2020 case stressed that many people who work for religious schools perform ordinary teaching jobs. If the exception covers anyone with some religious duty, couldn't it eat the whole law of employment discrimination?

I want to give that objection its full weight, and then answer it in numbered points.

1. The exception is narrow in subject matter. It covers the employment relationship between a religious institution and those who carry out its religious mission. In Hosanna-Tabor, Chief Justice Roberts said that the Court was expressing no view on whether the exception would bar other types of suits, such as a claim of breach of contract or a tort claim against a religious employer. So the courts have left room for other kinds of claims, and the question is open.
2. It is an affirmative defense. The Court said the exception operates as an affirmative defense to an otherwise cognizable claim, not as a bar to the court's jurisdiction. The church has to raise it and prove that the employee was a minister.
3. It does not shield crimes. Nothing in either case says a church is immune from the criminal law, from child-protection reporting rules or from lawsuits by people harmed by its conduct who are not ministers. Abuse, assault and fraud are not matters of church governance.
4. The alternative is worse. If the government can decide that a church was wrong to dismiss a minister, then the government is deciding who the church's leaders will be. The Court in Hosanna-Tabor acknowledged that society has an important interest in enforcing employment discrimination laws, and said that the interest of religious groups in choosing who will preach their beliefs is also important. When two important interests collide, you need a rule about who decides, and for the selection of ministers the answer has to be the church.

That does not make every result comfortable. A rule that protects a church's liberty will sometimes also protect a church that is acting unfairly. That is the price of the principle, and it is also true of free speech, which protects speech we despise. I'd rather pay that price than hand the state a veto over the pulpit.

The tie to everything else

The ministerial exception is a close cousin of the cases I describe in From Hobby Lobby to the Little Sisters, the long fight over one mandate, where religious employers argued that the government could not force them to take part in what their faith forbids, and of the 1993 statute in How 97 senators and a voice vote undid a Supreme Court decision. It also explains why What the 9-0 Fulton decision means for foster care and faith agencies was a win for religious groups' autonomy, why Article VI, the atheist notary and the clause every believer should defend bars religious tests for office, and why the test the Court uses to judge religion cases has shifted, as the three-part test that haunted churches for fifty years is finally gone explains. In each, the principle is the same: the state does not run the church.

The bottom line

• The ministerial exception keeps the government out of a religious body's choice of those who teach and lead its faith. It rests on both religion clauses, and it has English roots and a Madison veto behind it.
• Hosanna-Tabor (2012) was unanimous. Our Lady of Guadalupe (2020) was 7-2 and held that function, not title, decides who is covered.
• If you run a church, school or charity, write job descriptions that honestly describe religious duties, and ask a lawyer before you assume anyone is covered.
• The rule has limits. It does not protect crimes, and the Court left other kinds of claims open. Do not treat it as a way around the law.
• If you are an employee of a religious organization, find out how your duties are described in writing before a dispute arises. Clear paperwork protects both sides.