The "ministerial exception" is one of those daunting, kind of messy, areas of church-state law, I'm learning. Initially written into Title VII of the Civil Rights Act, but rooted in the religion clauses of the First Amendment, the idea is pretty simple. It says, basically, that churches and religious organizations are exempt from employment laws (like the nondiscrimination provisions of the Civil Rights Act), when it comes to personnel matters relating to ministers. The government – the reasoning goes – should not be in the business of dictating, interfering with, or even inquiring into the church-clergy relationship, as ministerial roles are a direct expression of the church's free exercise of religion as guaranteed by the Constitution.
So, what's the problem? Well, for one thing, who counts as a minister? Which jobs qualify as ministerial for purposes of the exception, and more importantly, how do we decide where to draw that line?
This is a question that the Supreme Court has not dealt with directly, and that appellate courts have approached in different ways. The 4th and DC Circuits, notably, have used a test that says if the "primary duties" of the employee are religious in nature, then that job is ministerial. A panel of the 9th Circuit, on the other hand, rejected the "primary duties" test earlier this year in favor of the 5th Circuit's test, which merely asks if the employee was chosen "largely on religious criteria" and performs "some religious duties." Any employment decision concerning a position that meets that test, that court said, should fall under the ministerial exception, and out of the reach of employment law or judicial review.
In an interesting decision Friday, however, the entire 9th Circuit (en banc) revisited that ruling and vacated that test (pdf), arguing that there was no need in that case (a minister-in-training hired to perform some religious duties, and to maintain the church building) for the court to construct a test of any kind.
The parties and amici have suggested that we adopt a test of general applicability—either the test created by the three-judge panel, a test of their own creation, or one of the tests used by our sister circuits. We decline that invitation. We leave for another day the formulation of a general test because, under any reasonable construction of the ministerial exception, Rosas meets the definition of a minister.
Religious organizations have a broad latitude – as they should – in defining their mission, and the roles of the employees they hire to achieve that mission. That doesn't mean it's a good idea for them to exploit employees, discriminate unnecessarily, or treat workers poorly. But it does mean that in some ways we would rather risk that set of problems than the one created by the state interfering with with the relationship between a church and its clergy. Courts might help by defining those lines, but they may just as easily complicate matters in harmful and entangling ways. For better or worse, it's often left up to religious institutions to live up to, and determine what is meant by, the high values they claim in employment decisions.
