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The ministerial exception is crucial

Federal appeals court continues judicial victories for religious liberty


The ministerial exception is crucial
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This past judicial term, the Supreme Court took up two important cases regarding religious liberty. These cases are part of a broader, ongoing legal and cultural discussion of how Christians are to live in an increasingly antagonistic culture. 

While both of those decisions resulted in victory for religious liberty, this discussion is far from complete. A 7th Circuit panel of judges considered another element of the question in Fizgerald v. Roncalli High School. The case arose out of Roncalli High School in Indianapolis. Michelle Fitzgerald had worked for Roncalli for fourteen years as a guidance counselor. She had received glowing evaluations from the school regarding her performance. But in 2018, the school declined to renew her contract. It did so because she had entered a same-sex marriage in violation of Roman Catholic doctrine. Another female counselor, Lynn Starkey, was also let go around the same time for the same reason. 

Both women separately sued the school, but in separate actions. Each claimed that the school discriminated against them on the basis of sex—an action that would violate Title VII of the Civil Rights Act of 1964. The 7th Circuit had decided Starkey’s case last year but only issued its decision in Fitzgerald’s on July 13. The outcome and reasoning of the two, which proved essentially identical, are important for religious organizations seeking to protect their mission going forward. 

In Friday’s ruling, the judges did say that firing a person for marrying a person of the same sex was sex discrimination. The judges had to do so, since they are bound to follow Supreme Court precedent. And that precedent, as these judges cited, now includes 2020’s Bostock v. Clayton County. That decision had found that nearly any sex specific expectations of an employee by an employer involved sex discrimination through gender stereotyping. 

To reach this novel, dystopian conclusion, the majority engaged in a reading of the word sex that involved more word games than reasonable, faithful statutory interpretation. Though its ramifications have not yet had time fully to play out, that case likely ended male and female as categories with any legally actionable meaning. 

Despite Bostock's disfigurement of Title VII, the circuit panel still sided with the Catholic high school, both Friday and in the preceding case. The school won because the court determined that its treatment of both women fell within what is known as the “ministerial exception.” This judicial rule exempts religious organizations from anti-discrimination employment laws when the job at issue is “ministerial” in nature. 

We should be thankful for and ready to use the ministerial exception recognized by federal courts where needed.

The courts have carved out this exception as a way to respect the First Amendment’s Establishment and Free Exercise clauses. Both clauses stipulate that government cannot control a church or other religious organization, especially in matters of governance. Such control could violate the Establishment Clause by the state ruling over the religious body. The same control could violate the Free Exercise Clause by inhibiting the religious liberty of that organization. 

The real question concerned defining the term “minister.” What exactly does ministerial mean in the eyes of the law? Christians can use the term in any way that meets the polity and doctrine of their church. Usually, we speak of ministers as those whose vocation involves an office in the church of preaching and administration of the sacraments.  Some churches and Christian institutions use the term more broadly.

The judges read the definition of ministers closer to this broader understanding. Following Supreme Court precedent, the judges looked for whether the guidance counselor performed some kind of religious function as part of her job. Fitzgerald of course was not a priest in the Roman Catholic Church. But as part of her role as a guidance counselor, she partook of an administrative council that made decisions about religious practice at the school. She by her own admission and by her job description gave religious counsel to students as part of her work. For the judges, that was enough in this case to define her as a minister for legal purposes and thus to grant the school the exception to terminate Fitzgerald’s (and Starkey’s before her) contract. 

We should bemoan the circumstances that made these cases so serious. The general cultural confusion regarding sex and sexuality has made the church’s mission harder. The lies of our age continue to do damage to persons made in God’s image and to distort God’s created purposes for human beings. 

We should be thankful for and ready to use the ministerial exception recognized by federal courts where needed. However one defines the term “minister,” the judicial doctrine recognizes important truths for the church and for related religious organizations. The church is bound by a common belief and mission—the proclamation of the redemption offered in Jesus Christ and the living out of that faith in love to God and neighbor. The church and religious institutions have a right to pursue this belief and mission as effectively as God blesses.

The legal doctrine understands that personnel is policy on these matters. Who you employ in crucial roles has a significant effect on the doctrinal and moral faithfulness of churches and church-affiliated organizations on these matters. Finally, the courts also have recognized that this mission and its relation to employment extends beyond traditional vocational ministry to the variety of ways and structures the church utilizes in service to the gospel. Schools, mercy ministries, and other organizations thus fall under the protection, not just churches strictly. 

The Apostle Paul, in the midst of persecution and arrest, claimed his rights as a Roman citizen. He did so not so much to protect himself as to serve the cause of spreading the gospel. Let us think of the ministerial exception in a similar fashion. As we face trial in our society for our faith, let’s use the legal protections we have as opportunity to continue Kingdom work to the salvation of souls and the glory of God. 

Adam M. Carrington

Adam M. Carrington is an associate professor of politics at Hillsdale College, where he holds the William and Patricia LaMothe Chair in the U.S. Constitution. His book on the jurisprudence of Supreme Court Justice Stephen Field was published by Lexington Books in 2017. In addition to scholarly publications, his writing has appeared in The Wall Street Journal, The Washington Examiner, and National Review.

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