Sabine Tsuruda (Queen's University Faculty of Law) has posted Disentangling Religion and Public Reason: An Alternative to the Ministerial Exception (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:
According to the US Supreme Court, the First Amendment bars application of antidiscrimination law to the employment relationship between a religious organization and its “ministers.” Relying on this “ministerial exception,” religious organizations have lawfully fired employees for being Polish, reporting sexual harassment, developing a brain tumor, and many other reasons bearing no discernible connection to religion.
Proponents of the ministerial exception typically characterize ministerial employment as private and voluntary, arguing that the state should not interfere in intimate religious matters such as who ministers to the faithful. This characterization obscures how antidiscrimination law constrains employers’ economic power to hire, fire, and promote in ways that shape employees’ exercise fundamental rights, such as marital and sexual autonomy, as well as religious freedom itself. By removing these constraints, the exception prioritizes the liberty of religious organizations over the fundamental rights of many of their employees. The exception is thus hard to reconcile with the liberal democratic principle that liberty may only be restricted for the sake of a greater, more equal liberty for all.
To offer a way forward, this Article develops a theory of the associational value of meaningful work to support an alternative exception that permits religious organizations to hire like-minded employees in furtherance of their ends. Such an “authenticity exception” can be implemented without state entanglement in religion by distinguishing the inherently religious issue of what makes work religious from the public issue of whether a limitation on someone’s fundamental rights is supported by public reasons—reasons that we could all accept as free and equal members of society. It then illustrates the authenticity exception through Canadian jurisprudence, which deploys a similar exception, and applies the authenticity exception to US ministerial exception cases to show how the authenticity exception closes the gap between religious association and exempted discrimination.