Justin Burnworth (University of Massachusetts Amherst) has posted The Ministerial Exception Paradox (Quinnipiac Law Review [FORTHCOMING]) on SSRN. Here is the abstract:
The “ministerial exception” spent the last few decades knocking at the Supreme Court’s door with no answer. The Court finally recognized the exception in Hosanna-Tabor v. E.E.O.C then reaffirmed and strengthened it in Guadalupe v. Morrisey-Berru. The majority cited the history surrounding the background of the exception going back to 1215 and how that history shaped the founding generation’s beliefs when passing the First Amendment. Further, the Supreme Court recently denied cert in Gordon College v. DeWeese-Boyd but will likely grant it when the case is ready to properly be before the Court. Four Justices called the lower court’s understanding of religious education “troubling.” The debate surrounding the ministerial exception is only going to become more controversial in the near future.
This article argues that the expansive rulings in Hosanna-Tabor and Guadalupe have pushed the application of the ministerial exception beyond the realm of logic and its intended purpose. The ministerial exception was once a tool to protect religious liberty, however it is now used to squash it. The individuals that the exception hits the hardest are the educators that wish to combine their faith and passion for teaching. These teachers are having their religious freedoms infringed by the Court’s granting of expansive institutional religious liberties through the exception. This creates what I call, the “Ministerial Exception Paradox.” The exception was intended to ensure individuals had the right to freely express their religions, through the protection of religious entities’ autonomy, as guaranteed by the First Amendment. Instead, the ministerial exception, in its current iteration, violates the First Amendment’s Free Exercise Clause. This creates a constitutional law paradox because a legal doctrine born in the First Amendment actually violates the very same amendment. This logical fallacy cannot be continued to be perpetuated by the Supreme Court. The Court must rein in the exception to only label individuals that have significant control over a religious institution’s policies and mission as “ministers.”