This week, the Independent Women’s Law Center filed a brief in Our Lady of Guadalupe arguing that the ministerial exception should apply to all employees who perform significant religious duties for their employers. 

The First Amendment guarantees the freedom of a religious organization to select its ministers.  This “ministerial exception” protects a religious group’s right to shape its own faith and mission through hiring practices and bars federal and state courts from interfering with the hiring and retention policies and practices of religious employers. 

The question is what sorts of employees qualify for the ministerial exception. 

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court unanimously concluded that a Lutheran kindergarten teacher was a “ministerial” employee based on the teacher’s title and the religious functions that she performed.  Most courts have concluded that the presence or absence of a religious function is key to the application of the ministerial exception, but in Our Lady of Guadalupe, the Ninth Circuit dismissed a Catholic school teacher’s significant religious responsibilities and focused on the lack of a formal ministerial title.  (The teacher taught daily religion classes, prayed with and taught her students how to read the Bible, planned liturgies, and modeled her Catholic faith for the student body.)

Independent Women’s Law Center argues that the ministerial exception should apply to all employees who perform significant religious duties for their employers.  IWLC’s brief explains that narrowly interpreting the ministerial exception will permit government to interfere with the ability of parents to raise their children with a religious education and will impair the ability of many women to work as religious educators, a position that is often attractive because of its contribution to a faith-based education and because of its flexibility.  A formulaic approach also entangles civil courts in religious disputes by forcing judges to decide for themselves whether a particular teacher’s title and credentials are good enough to pass muster under the ministerial exception. And by effectively confining the ministerial exception to the facts of Hosanna-Tabor, this formulaic approach would discriminate against religious groups whose teachers do not mirror the characteristics of the Lutheran teacher in that case.  All of this would have substantial adverse effects on women who either (1) seek to engage in employment as instructors in religious schools or (2) seek to ensure that their children receive education from the religious denomination of their choice.  

Read the brief HERE.