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Missing the legal forest for the trees

The “ministerial exception” is a necessary protection for religious liberty

World Vision international headquarters in Federal Way, Wash. Associated Press/Photo by Ted S. Warren

Missing the legal forest for the trees
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A federal court in Washington state recently ruled against a Christian ministry in an employment dispute. The court’s decision reveals a point of confusion that has come up from time to time in the judiciary. It’s a case of missing the forest for the trees. The court focused simply on whether a very particular “ministerial exception” applied, rather than looking at the broader religious liberty issue at stake.

World Vision is a Christian humanitarian aid organization. As an organization funded by donations, it matters who answers the phones at World Vision. World Vision’s telephone representatives are the point of contact with the organization for many donors. World Vision also wants telephone calls to be ministry opportunities. It seeks to hire mission-aligned representatives to run its phone lines and encourages its representatives to pray with those who call the organization. The group requires that its representatives live in accord with what it sees as basic Christian ethics. And that’s where the lawsuit comes in.

World Vision had just given a job offer to an applicant when it learned that the applicant was in a same-sex marriage. The marriage conflicted with World Vision’s ethical guidelines for employees—which, consistent with Scripture and standard evangelical practice, limits sexual relations to marriage between a man and a woman. World Vision revoked the employment offer and the applicant sued, claiming discrimination.

World Vision had argued that its decision to revoke the employment offer stemmed from its religious beliefs and thus was protected both by the Constitution and by statute. The district court disagreed. While there’s lots to discuss in the decision—from the statutory issue to the freedom of association arguments—I want to focus on one key area of confusion, about “church autonomy” and the “ministerial exception.”

Over the years, there have been many cases establishing the principle that churches can choose their leadership on the basis of religious principles. This principle is grounded in the Constitution’s religion clauses. The Constitution protects the “free exercise” of religion—and if the state could tell a church whom to hire or fire, it would impinge on this free exercise. The Constitution also prohibits the government from creating an “establishment” of religion—and if the state could interfere with doctrinal decisions about who could lead a church, the state would be establishing its own dominance over religion.

When the issue is an employment decision about a minister, this principle of religious liberty has been called the “ministerial exception” from employment discrimination rules. The Roman Catholic priesthood can be limited to men; and leadership at a local Bible church isn’t open to agnostics. In some settings this would constitute discrimination on the basis of sex or religion. But in the church context, this is protected.

The principles of religious liberty that underly the “church autonomy” doctrine are not limited to ministers.

Move outside the easy case of pastors and churches to other kinds of religious institutions, and the same principles still apply. What matters is that the institution (church, school, or other organization) is religious, and that the conduct it is engaged in is religious, and done for religious reasons. This broader principle is often called the “church autonomy doctrine.” (This label can be confusing, for the rule applies not just to churches, but to any number of religious institutions—synagogues and seminaries and religious grade schools too.) It rests on precisely the same constitutional foundations as the “ministerial exception.” Except that it recognizes (correctly) that the principles of autonomy for religious organizations are not limited to the context of ministers.

This is no secret knowledge. The Supreme Court has been very clear that the ministerial exception is not some separate thing from church autonomy. It is just one manifestation of church autonomy. And religious believers in America, of every tradition, are better off for it.

So, what happened with World Vision? The court rejected World Vision’s church autonomy arguments in an order in July, and then considered (and rejected) ministerial exception arguments in a separate decision in November. If that seems confusing, it should. For it indicates that the court was confused. Artificially separating them out facilitated more analytical mistakes. The court invoked “neutral principles” of law in a way that significantly undercut church autonomy principles. It separately concluded that, because a customer service representative is not a minister, the ministerial exception didn’t apply.

But the principles of religious liberty that underly the “church autonomy” doctrine are not limited to ministers. And religious organizations need to have autonomy to run their internal affairs—and this doesn’t change just by labeling the source of government control as a “neutral” rule.

This isn’t the first time that courts have been confused about the labels, or have artificially separated different parts of the church autonomy doctrine. Courts decide one case at a time. They don’t get to identify a problem for the country and then legislate or set enforcement policies accordingly. They have to wait for cases to come, and deal with whatever comes.

It so happens that courts have had to deal with more than a few cases involving ministers. And so the doctrine is well-known to judges as a “ministerial exception.” But that should not obscure the larger principle of church autonomy. Unfortunately, it seems that is exactly what happened in Washington state. Hopefully an appellate court will correct this error. And hopefully other courts tempted to the same confusion can learn from this.

Lael Weinberger

Lael Weinberger is a lawyer and historian. He is a fellow of the Constitutional Law Center at Stanford Law School.

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