Getting Paid to Discriminate: The Clash Between Religious Autonomy and Principles of Justice and Fairness

I. Introduction

Near the end of her long day at work, while cleaning the last bathroom stall, Abigail Yuval Hussein, a janitor for a religious organization, collapses on the floor of her workplace’s bathroom.^[1] No one else was present in the building to hear her broom clatter on the floor or the sound of her head colliding with the floor, knocking her unconscious. After regaining consciousness, Abigail decided she had enough.

Abigail, a single mother, began working as a janitor for a religious organization two years ago. Over the course of her employment, on multiple occasions, she considered quitting her job. Perhaps because her employer only let her work the “graveyard” shift, when no worshippers were present in the building, due to her musculoskeletal disorder—the burn marks on the left side of her face from a car accident several years ago. Perhaps because of her employer’s repeated sexual advances or other harassments while she worked the night shift. Perhaps because she was being paid nearly half of what she should be getting paid. Perhaps because her employer went out of his way to make her life harder at work after she complained about his misbehavior or lack of equal pay, creating a hostile work environment. Or perhaps because all of this was becoming too much for her to emotionally handle, particularly because she was pregnant. Yet, she has never quit.

Although Abigail does not want this job, she needs this job. The job market has been incredibly difficult, and with her third baby on the way, she needs every penny she can make. Aware of her situation, the employer undoubtedly thought he could take advantage of her, save a few dollars by paying her half of what she deserves, and have some fun on the side, without facing any consequences. But, luckily for Abigail, she was in the United States of America—the “land of the free and the home of the brave.” Thus, she obviously can fight for her rights in court, right? Everyone knows that our legal system prides itself in providing everyone with a day in court to win or lose their case.

Abigail is scared to approach an attorney about her situation. She is embarrassed to share her story with anyone else and feels as though she stands to lose everything. However, one day, after her collapsing incident at the church, when she runs across an old friend who is an attorney at the supermarket, she decides to share her story. After hearing about all of her traumatic experiences, the attorney sadly informs Abigail that, had she been employed by a nonreligious entity, then she would most definitely have many viable claims to bring against her employer. However, because she is employed by a religious organization, the attorney explains that it becomes increasingly challenging, or rather somewhat impossible, to overcome the ministerial exception. The attorney explains to Abigail that the conclusion of her legal action will likely come down to how the court analyzes the current ministerial exception framework.

The ministerial exception is a court-created doctrine that protects religious organizations from discrimination claims brought against them by their ministers.^[2] However, this protection is meant to be limited.^[3] With nearly 1.7 million employees in the United States, the religious organization industry is the twenty-first largest in the nation.^[4] This industry not only comprises companies involved in operating religious organizations for worship, religious training, and promoting religious activities, but also hospitals and schools.^[5] Over the past five years, this industry has reached $127.7 billion in annual revenue.^[6] The full-time lay professional staff is made up of 97.4% laypersons and only 2.6% religious/clergy members.^[7] An exception that was presumably meant to apply to this small group of employees consisting of clergy members has, through the Supreme Court’s recent decisions, expanded past its intended scope and grown to incorporate employees that would normally fall into the “lay professional” staff group. Put another way, the exception has arguably consumed the rule.

In July 2020, the U.S. Supreme Court in Our Lady of Guadalupe School v. Morrissey-Berru ruled, in a 7-2 decision, that the First Amendment’s Religion Clauses prevented courts from adjudicating employment discrimination claims brought by an employee, even when they were not otherwise classified as a “minister,” against their religious employer if the employee, in essence, carried out important religious functions.^[8] Equally important, just a month before this decision, in June 2020, the Court in Espinoza v. Montana Department of Revenue ruled that once a state decides to subsidize private education, it cannot disqualify certain private schools solely because of their religious status.^[9] Taken together, these cases bring forth two issues: (1) whether the Supreme Court has provided such a broad definition and scope of the term “minister” that it practically bars all employees from bringing any discrimination claims against their religious employers; and (2) whether states are permitted, and at times obligated, to provide public funds to religious entities that have such broad immunity to discriminate in their employment practices.^[10]

This Note, in light of recent litigation, aims to analyze the breadth of a legal exception—the ministerial exception—that exempts religious institutions in the United States from complying with employment antidiscrimination laws, and to what extent those religious institutions can utilize public funds. Part II provides a brief overview of the ministerial exception’s development, including its purpose, history, origin, and relevant caselaw. Part III begins by discussing the undefined limits of the ministerial exception and ends with a discussion about the possible limits of the ministerial exception as well as inconsistencies among lower courts. Part IV examines the implications of Espinoza in this context. Part V proposes a solution that balances religious autonomy with principles of fairness and predicts the likely future of the ministerial exception. Because of the recent change on the Court, with the passing of Justice Ginsburg and the addition of Justice Barrett, the future of this exception is even less clear.^[11] Finally, this Note argues that the Court should narrow the ministerial exception to achieve the fine balance between maintaining religious autonomy and achieving justice. Although scholars have argued that the “ministerial exception amounts to . . . a First Amendment justification for disobeying the law even when it does not violate anyone’s conscience”^[12] and should cease to exist in our courts, unfortunately it seems likely the ministerial exception will, at least for the foreseeable future, remain in place as a shield for religious organizations. And thus, this Note differs from the work of scholars arguing for the extinction of the exception and seeks to defend a narrow and limited interpretation of the ministerial exception.

II. Background

A. The Ministerial Exception: Origin, Meaning, and History

The ministerial exception was carved out from the guarantee provided by the First Amendment’s Religious Freedom Clauses.^[13] Courts have cited both the Establishment and Free Exercise Clauses to justify the use of the ministerial exception.^[14] The exception shields religious institutions from antidiscrimination claims brought by their “ministers” in employment relationships.^[15] An issue often arises as to what degree this exception offers protections from liability for religious institutions. Put simply, how far does the ministerial exception go? In working towards defining the limits of this exception, courts must often determine whether a particular employee qualifies as a minister within the scope of the exception.^[16]

The Establishment Clause and Free Exercise Clause of the First Amendment to the U.S. Constitution state that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”^[17] Courts have used Thomas Jefferson’s letter to the Danbury Baptist Association in Connecticut to establish the original understanding and intent of the Constitution drafters regarding the First Amendment. In relevant part, the letter provides:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.^[18]

Both scholars and courts often cite this “wall of separation” as the justification for the ministerial exception.^[19] In an ideal world, the ministerial exception both provides religious entities the freedom to select their ministers as well as the right to freedom from excessive government entanglement with religion, both of which are guaranteed by the First Amendment.^[20]

The Supreme Court first formally recognized the ministerial exception as an exemption for religious institutions from antidiscrimination claims brought by their “ministers” in the 2012 decision of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC.^[21] In Hosanna-Tabor, the Equal Employment Opportunity Commission brought suit against a teacher’s former employer, claiming that the teacher was fired for threatening to bring a disability discrimination claim against the Lutheran church and school.^[22] The issue before the Court was determining whether the teacher qualified as a minister in her role at the school.^[23] Although the Court refused to put forth a “rigid formula,” it held that the teacher was a minister because (1) the institution held her out to be a minister; (2) she identified herself as a minister; (3) her job duties involved performing significant religious duties; and (4) she received theological training.^[24] Prior to the Court’s July 2020 Morrissey-Berru decision, 300 cases had cited Hosanna-Tabor.^[25]

B. Current Application of the Ministerial Exception: Morrissey-Berru

Eight years after Hosanna-Tabor, the Court revisited its ministerial exception jurisprudence.^[26] The plaintiff in Our Lady of Guadalupe School v. Morrissey-Berru taught at a Catholic school.^[27] She filed suit under the Age Discrimination in Employment Act (ADEA) after the school fired her.^[28] The Supreme Court consolidated Morrissey-Berru with Biel v. St. James School,^[29] which, similarly, arose from a plaintiff filing suit under the American with Disabilities Act (ADA) after she was dismissed from her teaching position in another Catholic School.^[30] In Morrisey-Berru, the Supreme Court rejected the Ninth Circuit’s reasoning that the teacher was not a “minister” because she did not have a ministerial background, did not hold herself out to the public as a religious leader or minister, and did not have any religious credentialing or training.^[31] The Ninth Circuit found taking one course on the history of the Catholic Church was insufficient to classify the teacher as a minister for purposes of the ministerial exception.^[32] In rejecting this reasoning, the Supreme Court emphasized that, in Hosanna-Tabor, the Court expressly declined “to adopt a rigid formula for deciding when” a religious institution’s employee is a “minister” and that different factors could be considered in different cases.^[33] The Court determined that lower courts should focus on “what an employee does” rather than the four factors outlined in Hosanna-Tabor.^[34] Justice Sotomayor, joined by Justice Ginsburg in the dissent, argued that this approach has “no basis in [the] law and strips thousands of schoolteachers of their legal protections.”^[35]

C. Application of Religious Exceptions to Other Laws

The United States of America is “a democracy, not a theocracy.”^[36] Every individual and entity should be required to follow the same law.^[37] Yet, many exceptions are carved out for religious entities and individuals.^[38] Perhaps unintentionally, over time, two separate standards formed in the name of “religious autonomy”—one standard for religious entities and one standard for everyone else.^[39] The Supreme Court, in 1990, sought to address this issue in Employment Division, Department of Human Resources v. Smith.^[40] In Smith, the plaintiffs alleged violation of their First Amendment rights following the denial of unemployment compensation by the State of Oregon, which fired them for work-related “misconduct” after ingesting peyote, a hallucinogenic, for a religious ceremony.^[41] The Court noted it has never allowed individuals to use religion as an excuse for not complying with an otherwise valid prohibition that the government is allowed to regulate.^[42] The Court provided examples such as compulsory military service, payment of taxes, health and safety regulation, compulsory vaccination laws, drug laws, and traffic laws in support of the notion that allowing exceptions to every regulation impacting religion would invite “the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”^[43] In an effort to override Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), which required courts to apply the strict scrutiny test when exercising judicial review of any law that burdens the free exercise of religion.^[44] However, the Supreme Court found RFRA unconstitutional as applied to the states, prompting many states to enact their own version of RFRA to exempt religious entities from unduly burdensome state laws.^[45] Through lobbying efforts, religious entities have successfully carved out exceptions for themselves in many state laws and regulations.^[46]

Interestingly, Justice Alito, joined by Justice Thomas and Justice Gorsuch, in Fulton v. City of Philadelphia, wrote a concurrence in which he argued that Smith is discordant with other precedents and is tough to harmonize with other precedents.^[47] Justice Alito explained that contrary to the government’s argument in Hosanna-Tabor, the Court had held that the “so-called ‘ministerial exception’” applied to “generally applicable employment laws.”^[48] In a footnote, Justice Alito argued that “[o]ur strained attempt to square the ministerial exception with Smith highlights the tension between the two decisions.”^[49] Further, he noted that “[t]he opinion in Hosanna-Tabor tried to distinguish Smith” by arguing Smith “involve[ed] only ‘outward physical acts,’” while Hosanna-Tabor involved “the faith and mission of the church itself.”^[50] But Justice Alito found this argument unavailing, as he argued that “a prohibition of peyote use surely affected the ‘faith and mission’ of the Native American Church, which regards the ingestion of peyote as a sacrament.”^[51] Justice Alito’s arguments go hand-in-hand with a part of the Sixth Circuit’s opinion in Resurrection School v. Hertel—there the court rejected the plaintiffs’ argument that Morrissey-Berru supports the assertion that a government’s order requiring students in grades K–5 at religious schools to wear a face covering is unconstitutional because “[t]he First Amendment protects the right of religious institutions ‘to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’”^[52] The Sixth Circuit noted that the Supreme Court emphasized that religious institutions’ ability to decide “matters of church government and faith and doctrine does not mean that religious institutions enjoy a general immunity from secular laws.”^[53] Yet, in certain circumstances, unfortunately, it seems as though religious organizations do enjoy such a general immunity from secular laws.^[54]

Exceptions in the name of religion once again became an important issue when advocates challenged the Affordable Care Act’s contraception requirement.^[55] In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court determined whether for-profit companies were allowed to deny their employees’ health insurance coverage of contraception because of the employer’s religious objections.^[56] The Court held that, under RFRA, religious employers can exempt themselves from this contraception requirement because (1) it is not the least restrictive method of satisfying the government’s interests; and (2) the contraception requirement creates a “substantial burden” for religious individuals and entities.^[57] The majority reasoned that because corporations are composed of individuals, Congress intended for RFRA to apply to such entities as well.^[58] Although the dissenting opinion specifically denies this was Congress’s intent,^[59] as the dissenting judges noted, in essence, RFRA allows employers to decide what services would be covered through the employer-paid insurance plans,^[60] even though the Affordable Care Act was designed to help society, not burden Catholic employers.^[61] The law thus seemingly favors the interests of religious entities without giving due regard to principles of fairness and equity.^[62] It is possible to require compliance with fair laws while preserving religious autonomy, and the judicial system is capable of making such distinctions on a case-by-case basis.^[63] Indeed, as the old adage goes, what’s good for the goose is good for the gander. By allowing the judicial system to do its job, the legislature can avoid blanket exceptions for religious organizations, and exceptions can be granted in limited circumstances.^[64] As long as the Court’s current interpretation of RFRA remains the standard, some fair laws binding the rest of the nation may become inapplicable to religious organizations.^[65] Religious organizations will undoubtedly continue to advocate for broad exemptions and safeguards under the “wall of separation” doctrine, while their employees have no legal recourse, in direct contrast to the employees of nonreligious organizations.^[66] Put another way, in this case, at least according to the Supreme Court, what’s good for the goose—nonreligious organizations—is not good for the gander—religious organizations.

Some statutes and laws explicitly provide a religious exception within their text, while others contain no text exempting religious institutions from liability.^[67] In regard to those statutes containing an explicit “carve-out” for religious employers, religious institutions may not need to invoke the ministerial exception to escape liability from employee-brought claims.^[68] On the other hand, in regard to those statutes that do not contain an explicit carve-out, religious institutions would need to prove the statute does not apply to them—perhaps due to their small number of employees^[69]—or that the ministerial exception immunizes them from liability.^[70] For a better understanding, a cursory examination of some of the most applicable employment-related statutes is needed.

1. Title VII of the Civil Rights Act of 1964

Title VII of the Civil Rights Act (Title VII) was enacted by Congress in 1964^[71] to improve the economic and social conditions of minorities and women by providing access to equal opportunity in the workplace.^[72] Title VII makes it unlawful for an employer to hire, fire, or otherwise discriminate in “compensation, terms, conditions, or privileges or employment” against any individual based on “race, color, religion, sex or national origin.”^[73] Title VII generally applies to individuals who are “engaged in an industry affecting commerce” and have “fifteen or more employees.”^[74] However, religious organizations have a certain level of immunity from certain practices that are unlawful for other nonreligious employers.^[75] For example, it is not an unlawful employment practice for an educational institution to hire and employ individuals of a particular religion if such an institution is managed by that religion or if the curriculum of such an institution is directed towards the propagation of that religion.^[76] Irrespective of whether the religious exceptions provided in Title VII apply to an institution, many religious organizations are not covered by Title VII merely because they employ fewer than fifteen individuals.^[77] But those religious organizations that qualify as an “employer” under the scope of the statute can use the provided exceptions to establish immunity from related claims.^[78] Title VII only protects religious institutions that discriminate based on religion and does not protect religious organizations from claims regarding other types of discrimination.^[79] Thus, many religious organizations defend claims brought under Title VII by invoking the ministerial exception rather than invoking the specific and narrow exception found in the text of the statute.^[80]

2. Title I of the Americans with Disabilities Act of 1990

The Americans with Disabilities Act (ADA) was enacted by Congress in 1990.^[81] It was enacted “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”^[82] Title I of the ADA makes it illegal for a covered entity to “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of” the qualified individual’s employment.^[83] As found within its text, the ADA applies to employers with fifteen or more employees.^[84] Similar to the application of Title VII to religious entities, many religious organizations are not covered under the ADA merely because they have fewer than the requisite number of employees required to qualify as a covered entity under the ADA.^[85] The ADA contains a very narrow religion-based exception that does not go too far in helping many religious entities escape liability from claims brought under the ADA. Religious institutions can give preference to individuals of their religion.^[86] Outside of this narrow exception, Title I of the ADA does not directly grant any special exemptions to religious organizations.^[87] Thus, in defending claims brought under Title I of the ADA, religious organizations typically rely on the ministerial exception rather than an exception carved out by Congress in the ADA.^[88]

3. The Age Discrimination in Employment Act of 1967

Congress enacted the Age Discrimination in Employment Act (ADEA) in 1967^[89] “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] to help employers and workers find ways of meeting problems arising from the impact of age on employment.”^[90] The ADEA makes it illegal for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.”^[91] The ADEA’s prohibitions on discrimination apply to employers with twenty or more employees.^[92] Similar to Title VII and the ADA, the ADEA does not apply to many religious entities because they do not meet the jurisdictional requirements found within the statute, namely the number of employees requirement.^[93] Unlike Title VII and the ADA, the ADEA has no religious exceptions within the text of the statute itself.^[94] Thus, religious employers tend to rely on the ministerial exception as the primary defense against ADEA claims by arguing that the employee qualifies as a minister.^[95]

4. The Fair Labor Standards Act of 1938

The Fair Labor Standards Act (FLSA) became law in 1938, and Congress amended the FLSA in part with the Equal Pay Act in 1963.^[96] The FLSA has four primary purposes: (1) to establish a minimum wage requirement; (2) to establish the hours requirement for overtime pay; (3) to promote equal pay; and (4) to restrict child workers.^[97] The FLSA applies to any individual “acting directly or indirectly in the interest of an employer in relation to an employee.”^[98] In general, the FLSA covers religious employers, but the statute provides many exemptions. Although most of the exemptions do not directly apply to religious organizations, the exemption for executive employees may apply to such organizations.^[99] The exemption for executive employees makes employees with certain managerial roles and duties ineligible for coverage under the FLSA, and therefore, employers would not be liable for overtime claims brought by these employees under this statute.^[100] Further, in January 2021, the Department of Labor issued an opinion letter expressly recognizing that the ministerial exception applies to FLSA claims brought against religious organizations.^[101] Specifically, the Department of Labor stated that if a religious organization’s teacher qualifies as a minister under the exception, then the organization is not bound by the salary requirements of the FLSA; rather, the organization can use its own method to calculate and pay the teachers’ salaries.^[102] Thus, religious organizations generally have two primary defenses to FLSA claims. One, the religious employer can argue that it is immune from claims brought against it under the FLSA because the employee bringing the claim falls under the executive employee exception. And two, if that argument is unavailable or fails, the religious organization can invoke the ministerial exception as grounds for immunity against any claims brought by the employee.^[103]

5. The Family and Medical Leave Act of 1993

Congress passed the Family and Medical Leave Act (FMLA) in 1993^[104] to help employees maintain a “balance [between] work and family responsibilities by allowing them to take reasonable unpaid leave,” and to “promote equal employment opportunit[ies].”^[105] The FMLA states that an eligible employee is “entitled to a total of 12 workweeks of leave during any 12 month[s]” for an enumerated list of reasons.^[106] The FMLA generally applies to employers with fifty or more employees.^[107] Similar to the application of Title VII, the ADA, and the ADEA to religious entities, the FMLA does not apply to many religious entities because they do not meet the jurisdictional requirements found within the statute, namely the number of employees requirement.^[108] Unlike Title VII or the ADA, but like the ADEA, the FMLA has no religious exceptions within the text of the statute itself.^[109] Thus, religious employers that are covered under the FMLA and have allegedly violated its regulations must rely on the ministerial exception as a defense to such claims.^[110]

Regardless of whether the text of the statutes contains an exception, religious institutions can, and often do, use the ministerial exception to sidestep their legal obligations to their employees.^[111] Considering the existing protections already in place for religious organizations outside of the ministerial exception,^[112] this is something that no one should be allowed to do.

III. First Issue: The Undefined Limits of the Exception

A. The Definition Problem: Are Janitors the New Ministers?

Analyzing the application of the ministerial exception to claims brought under the previously mentioned laws is alone insufficient to understand the breadth of the ministerial exception. To exemplify the current lack of a discrete definition and wide-reaching incorporation of all religious entity employees, this Note analyzes the possibility of a janitor being classified as a minister. Before Morrissey-Berru, most courts would determine whether claims brought by janitors could be subject to the ministerial exception by relying primarily on the four factors analyzed by the Court in Hosanna-Tabor.^[113] However, post-Morrissey-Berru, courts can only consider these factors when determining the essential responsibility or function of the janitor and whether that responsibility is at the core of the religious entity’s mission.^[114] If janitors of religious entities can be classified as ministers, then the ministerial exception will protect the religious entity from antidiscrimination claims brought by the janitor. Thus, to examine the likelihood of a church’s janitor being classified as a “minister,” we must analyze the role of a janitor at a church, rather than the role of a janitor in general.

A cursory examination of job descriptions for janitors, custodians, and maintenance personnel reveals that such employees of a religious organization could very well qualify as ministers of the organization.^[115] For example, one Church’s job posting states that “the aim of all Custodial positions at [the Church] is to wholeheartedly glorify Jesus Christ,” while “seeking to spread a passion for supremacy of God in all things for the joy of all peoples through Jesus Christ by caring for our facilities, and supporting our events.”^[116] The Custodian is further obligated to “maintain a Christian spirit of love and service toward the [Church] staff, congregation, and those [they] serve, in accordance with the church’s vision and philosophy of ministry.”^[117] On the other hand, an example of a typical job posting for a School Custodian, in the introductory section, states that “[t]he Custodian will clean and maintain the school or other educational facility.”^[118]

In the qualifications section of the Church’s job posting, it states, in part, that the Custodian “will sustain a vital, growing relationship with the Lord through personal and corporate worship, study of God’s Word, prayer, and regular, ongoing fellowship with believers at [the Church].”^[119] The posting provides that the Custodians must perform their responsibilities “in the power of the Holy Spirit, undergirded with prayer, guided by Scriptures, and manifesting the character of Christ for the glory of God.”^[120] The job posting explains that the Custodian is responsible for staying loyal to “God and the Word,” while also supporting “the leadership of the church generally and specifically that of their area of ministry.”^[121] Finally, if a concern or problem were to arise, then the Custodian must “communicate in a biblical manner and abide by appropriate supervisory direction and any final determination of the Council of Elders.”^[122] On the other hand, in the qualifications section of a typical job posting for a School Custodian, it states, in part, that the Custodian must have “[k]nowledge of safety hazards and proper use of various cleaning and sanitizing solutions,” while being “[d]etail-oriented and thorough.”^[123] Furthermore, the Custodian must have the “[a]bility to perform basic repairs and operate tools or equipment used in routine maintenance” and have the “[a]bility to keep the school clean and orderly,” while interacting with “staff, students, parents, and visitors at school” in a “professional, polite, and courteous” manner.^[124]

Finally, the responsibilities section of the Church’s job posting states, in part, the Custodian must “[p]erform all custodial duties assigned, including: Maintain daily cleanliness in the buildings and their grounds using prescribed procedures, supplies and equipment, and exercising safety consciousness at all times.”^[125] In contrast, the responsibilities section of a typical job posting for a School Custodian states, in part, that the custodian must “perform[] general cleaning and janitorial duties in the common areas of the building,” and “perform[] minor repairs and maintenance such as replacing light fixtures or unclogging pipes.”^[126]

As evidenced by the responsibilities sections of the job postings, the essential duties of a custodian at a church and another facility are the same. Yet, under the broader interpretation of the exception, the Church’s custodian could qualify as a minister, whereas the school’s custodian would not. Under Hosanna-Tabor, the Church’s custodian would likely not qualify as a minister because although the church may argue it held the custodian out to be a minister and all employees, including the custodian, received some sort of theological training, the custodian will likely not identify himself or herself as a minister, nor do the custodian’s job duties involve performing significant religious duties. Unlike the teacher in Hosanna-Tabor, who was a commissioned minister,^[127] the custodian most likely is not a commissioned minister. Thus, under the Hosanna-Tabor framework, the custodian would not qualify as a minister and the church would be unsuccessful in invoking the ministerial exception.^[128] On the other hand, under the Court’s recent decision in Morrissey-Berru, the Church’s custodian may qualify as a minister. The Church could successfully argue that, as evidenced by the job posting introduction, the key function of the custodian is to “wholeheartedly glorify Jesus Christ, seeking to spread a passion for the supremacy of God in all things for the joy of all peoples through Jesus Christ by caring for our facilities, and supporting our events.”^[129] In Morrissey-Berru, the Supreme Court found that educating students about their faith was at the core of the religious school’s mission, and thus, the teacher qualified as a minister.^[130] Similarly, here, a court may find that caring for the Church’s facilities and supporting religious events are at the core of the Church’s mission in providing a facility for worship and spiritual guidance, and thus, the custodian qualifies as a minister.

The Supreme Court’s expansion of the ministerial exception has increased, and likely will continue to increase, uncertainty about who qualifies as a minister.^[131] If the Court indeed wishes to adopt such a broad definition of this term, then the buck will not stop with teachers; rather, it could grow to incorporate most, if not all, employees of religious entities.^[132]

B. The Scope Problem: Split in the Court System—Limits of the Ministerial Exception

Post-Morrissey-Berru, it appears as though all claims brought by religious entity employees are barred from court as long as those employees can be classified as ministers. However, this may not be the end of litigation involving the ministerial exception.^[133] As of January 2021, two circuit courts ruled in favor of the employee rather than the religious employer in cases involving immunity for religious employers.^[134] These two cases exemplify that, at least until the Supreme Court takes on another ministerial exception case, “occasionally ministers have a chance at winning their antidiscrimination lawsuits. Their chances, however, are very limited.”^[135]

In McRaney, the Fifth Circuit heard a case involving the executive director of the General Mission Board of the Baptist Convention for Maryland/Delaware (BCMD) and the North American Mission Board of the Southern Baptist Convention (NAMB).^[136] The director alleged that NAMB, who was not his employer, “intentionally made false statements about him to BCMD” that led to his termination.^[137] The district court ruled that the lawsuit was barred by the ecclesiastical abstention doctrine, which is similar to the ministerial exception, in that it is another way that churches can escape liability.^[138] The Fifth Circuit reversed the district court’s holding and found that the lawsuit could move forward to determine if it could be decided according to neutral principles of law in a civil dispute, rather than a religious one.^[139] In a footnote, the court addressed the district court’s finding that the ministerial exception does not apply to disputes between employees and third parties in response to NAMB’s motion to dismiss under the ministerial exception.^[140] However, the Fifth Circuit did not directly address this issue, as it was not raised on appeal.^[141]

Similarly in Demkovich, the Seventh Circuit heard a case involving a music director at a Catholic church who brought suit against the church under Title VII of the Civil Rights Act for harassment by the church due to his same-sex marriage and under Title I of the ADA for harassment by the church due to his weight and medical issues.^[142] The three-judge panel disagreed about the applicability of the ministerial exception in this case.^[143] The majority ruled that the ministerial exemption should not be extended to bar all hostile environment discrimination claims by ministerial employees and observed that the case involved a clash between religious freedom and freedom from invidious discrimination.^[144] The court addressed this clash by noting that under Hosanna-Tabor, courts are allowed to proceed with claims brought by nonministerial employees.^[145] Thus, the majority explained, balancing between religious freedom and freedom from invidious discrimination by allowing minister-employee-brought claims that do not challenge tangible employment actions like hiring and firing would not disrupt religious freedom.^[146] Furthermore, the court found that there was a distinction between claims brought against the religious employer’s tangible employment actions and the religious employer’s creation of a hostile work environment, which is an intangible employment action.^[147] The dissent argued that precedent guides the court to find that the ministerial exception bars all minister-brought employment discrimination claims.^[148]

Unfortunately, the three-judge panel’s opinion has since been vacated, as the Seventh Circuit granted the appellant’s motion for rehearing en banc.^[149] In July 2021, the Seventh Circuit, on a matter of apparent first impression, held that the ministerial exception applied to bar Title VII hostile work environment claims based on minister-on-minister harassment, thus deepening the circuit split on whether the ministerial exception covers hostile work environment claims.^[150] By doing so, the Seventh Circuit joined the Tenth Circuit and split with the Ninth Circuit.^[151] According to the Seventh Circuit, “[t]he First Amendment ministerial exception protects a religious organization’s employment relationship with its ministers, from hiring to firing and the supervising in between,” and by “[a]djudicating a minister’s hostile work environment claims,” the court would “undermine this constitutionally protected relationship.”^[152] This, in turn, would “result in civil intrusion upon, and excessive entanglement with, the religious realm, departing from the teachings of Hosanna-Tabor and Our Lady of Guadalupe.”^[153] Judge Hamilton, joined by Judge Rovner and Judge Wood, in his dissent, argued that the ministerial exception should be evaluated on a case-by-case basis, rather than serve as an “absolute bar to statutory hostile environment claims by ministerial employees,” which will, under the majority’s holding, “apply regardless of how severe, pervasive, or hostile the work environment is, regardless of whether the hostility is motivated by race, sex, national origin, disability, or age, and regardless of whether the hostility is tied to religious faith and practice.”^[154] Further, the dissent argued that “given other similar claims that civil courts may hear, the majority’s holding draws an oddly arbitrary line as a matter of constitutional law, barring only hostile environment claims.”^[155] Thus, the dissent would agree with the Ninth Circuit’s line drawn between matters involving tangible employment actions and hostile environment claims because such a line is the “most congruent with the purposes of the ministerial exception.”^[156]

The dissent in Demkovich cited Elvig v. Calvin Presbyterian Church in support of its argument.^[157] In Elvig, the Ninth Circuit reversed in part a district court’s dismissal of a case brought by an ordained minister alleging that another minister sexually harassed her and, after she protested, retaliated against her.^[158] The court ultimately held that the ordained minister could not challenge any tangible employment decisions against the church but could pursue her hostile work environment claims, which is an intangible employment decision.^[159]

In contrast, the Tenth Circuit, in Skrzypczak, held that the ministerial exception barred an employee’s claim for gender and age discrimination against the religious employer.^[160] The court found that, although the employee complained that the employer made discriminatory comments about women and that the employer’s attitude towards her created a hostile work environment, the church was immune from this suit under the ministerial exception.^[161]

Another relevant case involved a National Labor Relations Board (NLRB) order requiring Duquesne University, a religious school, to bargain with a union representing the school’s adjunct faculty.^[162] In Duquesne, the D.C. Circuit reversed the Board’s holding and found that the NLRB lacked jurisdiction over the religious school because the school’s status as a religious institution exempts it from the NLRB’s rules on forming a union for adjunct employees.^[163] Although the case did not involve the ministerial exception, the principles behind the doctrine lurked in the background of the court’s ruling.^[164] Of particular interest is Judge Pillard’s concurrence from the denial of a petition for a rehearing en banc, in which she cites Morrisey-Berru to argue that the employment matters of a church are “constitutionally prized attributes of religious practice” that deserve the court’s continued respect.^[165] In addition, she argued that “[s]uch respect need not come at the expense of workplace rights of those employees who do not personify a religious school’s beliefs, nor does it depend on conferring the broadest exemption at institutions whose religious character might readily accommodate labor protections alongside their faith.”^[166] Judge Pillard further stated that she trusts that the nation’s judicial system can “discern the extent to which the First Amendment requires religious schools be shielded from” a government agency’s obligations “in a manner appreciative of the autonomy they maintain over their mission.”^[167] Although this concurrence does not directly speak to the ministerial exception, it does exemplify that some judges consider it to be possible that courts can balance the interest of religious employers in maintaining religious autonomy and the interest of employees in preserving their employment rights and civil liberties.^[168]

Finally, four relevant court cases that, as of January 2021, have not made it to a federal appeal or state supreme court, confirm the split among courts and judges on the application of the ministerial exception. In Menard, the Massachusetts Court of Appeals dismissed a suit, under the ministerial exception, filed by a church employee for employment discrimination.^[169] The employee alleged that she was subjected to harassment in the workplace where she was a music director and that she was subjected to comments about her age and a negative, or hostile, attitude toward women.^[170] She further alleged that, after she complained to her employer, the harassment only increased and the employer retaliated against her for complaining.^[171] Although the court acknowledged the employee’s argument that a harassment suit should not be barred under the ministerial exception, the court ultimately ruled the ministerial exception barred her suit from proceeding past the initial motion to dismiss stage.^[172] Similarly, in Samano, the Appellate Court of Illinois ruled against an employee who claimed that a religious employer owed her earned wages and overtime pay.^[173] Although the trial court ruled in the employee’s favor, the appellate court reversed, finding that minister-employees were not protected under the Illinois wage statutes and that because the employee was a “minister” under the definition of the ministerial exception, she could not bring wage claims under the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act, both state law wage claims, as an employee of the religious entity.^[174] Although the concurrence argued that the employee’s work activities were primarily those which are performed by a layperson in a nonreligious environment, the employee was classified as a minister and was unable to pursue her wage claims in court.^[175]

On the other hand, in Garrick, a federal district court found that the religious exceptions carved out in Title VII and the ministerial exception do not bar a religious institution’s employee from bringing a claim against the employer for a hostile work environment.^[176] The court noted that the employee’s claim did not question the reasonableness or legitimacy of the employer’s religious beliefs; rather, it questioned “whether those beliefs actually prompted her firing.”^[177] And this distinction, the court explained, made all the difference.^[178] The court found that not all of the employee’s allegations related to the employer’s religious beliefs, and thus, other claims, such as her claim regarding unequal treatment of women who work in secular roles, were not barred from the court’s review.^[179] Similarly, the Appellate Division of the Superior Court of New Jersey found that the First Amendment did not bar an employee’s claim against her religious employer for violating the state’s Law Against Discrimination by terminating her for allegedly engaging in premarital sex because she did not qualify as a minister under the scope of the ministerial exception.^[180]

In Koenke v. Saint Joseph’s University, a plaintiff brought an employment discrimination action under Title IX against her former employer, a Catholic university, alleging claims of discrimination based on her sexual orientation.^[181] The court noted the existing ambiguity as to whether “the ministerial exception ‘bars other types of suits, including actions by employees alleging breach of contract [or tortious conduct] by their religious employers,’” but ultimately held that “hostile work environment claims, particularly those brought pursuant to Title VII or Title IX, clearly fall within the scope of cases banned by the ministerial exception.”^[182] Further, the court explained that the “Supreme Court has not cabined the ministerial exception to tangible or intangible employment actions, and it is not for this Court to create such an exception to binding precedent.”^[183] Although the plaintiff initially filed an appeal at the Third Circuit, the court announced in May 2021 that the plaintiff settled her case against the Catholic university.^[184] Thus, the Third Circuit did not get a chance to opine on this issue.

Claims brought against religious employers are continuously litigated in the court system. However, courts are divided on the applicability of the ministerial exception to different claims and employees. The cases discussed above exemplify that courts at times allow employees’ cases against religious employers to proceed forward by either (1) finding that the employee is not a “minister” under the scope of the ministerial exception; or (2) finding that the claims do not involve the type of claims—such as tangible employment actions like hiring and firing “ministers”—that the Supreme Court held are barred from a court’s review under the ministerial exception. Indeed, a minister’s chance at winning an antidiscrimination lawsuit continues to be very limited.

IV. Second Issue: Can States Fund Religious Entities That Are Immune from Liability for Discriminatory Actions Against Their Employees?

The First Amendment of the U.S. Constitution makes it difficult for religious organizations to accept public tax funds from the government.^[185] The Supreme Court has previously interpreted the Religion Clauses of the First Amendment as prohibiting government funding, whether state or federal, of religious institutions.^[186] The Court in Everson explained that:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”^[187]

Nevertheless, much like the religious exceptions discussed previously, advocates of public funding for religious organizations lobby for less restrictive guidelines governing when religious entities may seek public funding.^[188] They argue that society has become more tolerant of religion, and thus, state aid should be made available to religious entities.^[189]

A. Public Funding for Religious Entities

The Supreme Court first addressed the government’s ability to provide funding to a religious entity in Bradfield v. Roberts.^[190] The case involved a religious institution seeking a federal grant to fund the construction of a hospital wing intended to serve the poor in the community.^[191] The Court held that because the hospital wing is primarily secular in nature, the hospital was allowed to seek government funding.^[192] In the 1970s, the courts adopted a more restrictive stance on allowing public funding for religious entities.^[193] After this period, courts began to overturn restrictive guidelines provided for in the past and allowed more opportunities for private entities, including religious ones, to obtain public funding.^[194] For example, the Supreme Court has allowed public funding through direct aid programs to religious entities if the funding would provide only a marginal benefit to the religious objective of the private school operated by the entity.^[195] Furthermore, the Court began to allow religious entities access to tax benefits and scholarship programs if these benefits resulted from a student’s independent decision to receive such aid.^[196] Irrespective of the type of issue or entity involved, the Court emphasizes the importance of reviewing the secular purpose for which the public funds are sought.^[197] Nonetheless, over time, less restrictive guidelines have emerged concerning public funding benefiting religious entities.

Paramount to the discussion of governmental involvement with religious entities is a brief review of the Lemon test.^[198] This test is used by courts to evaluate whether governmental involvement with religion, through laws or actions, violates the First Amendment.^[199] In the Supreme Court’s landmark decision, Lemon v. Kurtzman, the Court outlined three factors that must be analyzed when deciding whether there is excessive government entanglement with religion: (1) the purpose of the benefit to the entity receiving the government aid; (2) the nature and effect of the government benefit or aid; and (3) the result of providing such aid to the religious entity.^[200] Little to no disagreements exist regarding the application of the first prong. However, courts have inconsistently applied the second and third prongs.^[201] In analyzing the last two prongs of this test, the Court has, in the past, differentiated between governmental aid that directly benefits the religious entities and aid that indirectly benefits religious entities.^[202] Regarding aid that directly benefits a religious entity, the Court limited such aid to secular use to prevent governmental advancement of religion, which would violate the First Amendment.^[203] The Court noted that the First Amendment “absolutely prohibit[s] government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith,”^[204] and the government cannot directly subsidize the religious activities of private entities.^[205] As long as the initial recipient of government aid obtains funding based on a religiously neutral criterion and can choose whether to use the funds at a religious entity, then the Court indicated that such use is no longer in violation of the First Amendment even if the religious entity decides to use the funds for religious purposes.^[206]

In Nyquist, the Court held that a government program providing aid to religious entities to maintain and repair their educational facilities was unconstitutional because the program did not restrict these funds from being used for educational facilities teaching religion.^[207] Additionally, the Court found that providing income tax benefits to parents of students at the private school was a violation of the First Amendment because it was not sufficiently restricted.^[208] On the other hand, in Wolman, the Court held that a government aid program subsidizing books, standardized testing and scoring, diagnostic services, and therapeutic services was constitutional while subsidizing instructional materials and field trip services was unconstitutional because the supervision of teachers at religious institutions to ensure secular use would involve excessive government entanglement with religion.^[209]

On the other hand, in Mueller, the Court held that a government program providing a tax benefit to all parents who incurred a cost in sending their children to school, including private religious institutions, was not a violation of the First Amendment mandate.^[210] The Court emphasized that the tax benefit was made available “for educational expenses incurred by all parents,” and that the resulting aid to the religious educational institutions was due to the parents’ choice to send their children to that school.^[211] Similarly, in Witters, the Court found that a government aid program for a blind person training at a religious vocational program was valid because it was not likely for any significant portion of the aid to be used for religious education.^[212] Furthermore, in Zobrest, the Court upheld a government program that provided aid to deaf children attending school at a religious institution for a sign-language interpreter.^[213] Subsequently, in Helms, the Court overturned the decision in Wolman^[214] and found that private schools run by religious entities are not automatically ineligible for public aid programs directly benefiting the institution; rather, the institution may be able to seek public aid directly funding the educational functions of the institution.^[215] Additionally, the Court abandoned previous concerns of excessive government entanglement with religion when the use of public aid by religious institutions is monitored by the government.^[216] The Court has differentiated between direct funding of religious entities and indirect funding of religious entities. However, after Helms, the Court wiped away this distinction and further loosened restrictions on providing public funding to religious entities.

In 2020, the Supreme Court, in Espinoza v. Montana Department of Revenue, was presented with a challenge to a state-enacted tax-credit scholarship program that provided a tax credit to individuals and businesses who donated to private, nonprofit scholarship organizations.^[217] The state promulgated an administrative rule that prohibited scholarship recipients from using their scholarships at religious schools because the state’s constitution prohibited direct or indirect public funding of religiously affiliated educational programs.^[218] The Court was tasked with determining whether the prohibition of such funds to religious schools violated the Religion Clauses or Equal Protection Clause of the Federal Constitution.^[219] The Court explained that a “[s]tate need not subsidize private education,” but “once a [s]tate decides to do so, it cannot disqualify some private schools solely because they are religious.”^[220] Thus, the Court ruled that such a prohibition, specifically on religious institutions, based on their religious-entity status was a violation of the First Amendment.^[221]

Taken together, caselaw illustrates that although the Supreme Court has not outright allowed religious entities to obtain public funding for religious purposes, it has increased the legally valid avenues through which such entities may indirectly or directly obtain public funding for religious purposes, activities, and institutions.

B. Which States Fund Private Institutions?

For a complete understanding of Espinoza’s significance, a survey of states that have enacted scholarship programs to subsidize private education is warranted. Due to Espinoza, a state can either subsidize all private school entities, including religious ones, or subsidize no private school entities.^[222] Put another way, if a state chooses to use public funds to subsidize private schools, then it must provide the same access to private schools run by religious entities—most of which qualify for immunity against antidiscrimination claims through religious exemptions such as the ministerial exception. Thus, the Court has created an avenue for a religious institution to use public funds while remaining immune from most claims brought by its employees, including claims alleging discriminatory actions that are illegal under the applicable state and federal laws.^[223]

Thirty-eight states have enacted constitutional provisions similar to the one at issue in Espinoza.^[224] The Court’s decision forces state legislatures to lift restrictions on funding for private religious schools, if they choose to fund other private schools, without imposing any restrictions on discriminatory employment practices or otherwise voiding the religious institution’s immunity from employees’ lawsuits alleging such illegal actions.^[225] There are twenty-three tax-credit scholarship programs in eighteen different states for students obtaining private and religious school education. These states comprise Alabama, Arizona,^[226] Florida,^[227] Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Montana, New Hampshire, Nevada, Oklahoma, Pennsylvania,^[228] Rhode Island, South Carolina, South Dakota, and Virginia.^[229]

Similar to the scholarship programs in place, some states have a publicly funded voucher program that provides families with vouchers to use for their child’s educational tuition at private and religious schools.^[230] There are twenty-five such voucher programs in fifteen states. These states comprise Arkansas, Florida, Georgia, Indiana, Louisiana,^[231] Maine, Maryland, Mississippi,^[232] New Hampshire, North Carolina,^[233] Ohio,^[234] Oklahoma, Utah, Vermont, and Wisconsin.^[235] Washington, D.C., has a similar program in place that is funded by the federal government.^[236]

The best way to understand the significance of these programs would be to see the annual spending of these states on such programs. In 2016, Florida spent $969.6 million,^[237] Arizona spent $211.8 million,^[238] Wisconsin spent $271.9 million,^[239] Vermont spent $44.1 million,^[240] Maine spent $51.7 million,^[241] Indiana spent $174.5 million,^[242] Ohio spent $324.1 million,^[243] D.C. spent $15.8 million,^[244] Louisiana spent $47.1 million,^[245] and Georgia spent $74.8 million^[246] on vouchers and tax credit programs for students obtaining private and religious school education.

Through these scholarships and tax credit programs, states can provide public funds to religious entities managing educational institutions—even when those entities may not have to answer for their discriminatory actions.^[247] The holding in Morrissey-Berru coupled with the holding in Espinoza leads to the conclusion that public funds can now be provided to religious entities that have broad immunity to discriminate in their employment practices.^[248]

V. Where Do We Go from Here?

Limitations on the broad and unchecked immunity granted to religious institutions are needed to guarantee individuals employed at religious institutions even a basic guarantee of freedom from discrimination. Clarification on the limitation of the ministerial exception is also needed at a time like this, when several states are enacting bills that could give religious organizations blanket immunity from any illegal actions.^[249] An over-broad ministerial exception and these state-enacted laws shielding religious organizations from any civil and criminal liability—irrespective of how these illegal actions might harm others—are surely direct violations of the Constitution. Ironically, it is this “profound misrepresentation of the First Amendment” that gives life to such exceptions.^[250]

The Supreme Court has several remedies within reach. As previous scholarly works note, the Supreme Court can rid itself of this court-created doctrine, as there are enough protections for religious organizations already in place within existing law.^[251] But, particularly after reaffirming the exception in Morrissey-Berru, the Court will likely not do so, at least in the foreseeable future. More realistically, the Court can restrict the definition of a “minister” to a much narrower and more limited one. Admittedly, this option raises concerns about the Court involving itself with religious matters because it may need to acquaint itself with the different ministerial qualifications among different religions to formulate a “one-size-fits-all” type definition. Yet, the Court did the exact same thing when accepting the ministerial exception and attempting to develop the definition of a minister into its current form. Further, the Court can also affirm lower court decisions creating a distinction between claims complaining of tangible employment actions protected under the ministerial exception and all other claims brought by employees against their religious employers, such as harassment and hostile work environment claims.

Until a new case involving the ministerial exception finds its way to the Supreme Court, the confusion regarding the true limits of the ministerial exception, outlined above, among courts and judges will continue to increase. If a case were to arise involving the ministerial exception and the Court can narrow the current, somewhat ambiguous, definition of the term “minister” and limit the scope of the exception, then perhaps the Court will have the opportunity to not only put some confusion to rest but also address some of the problems with the ministerial exception outlined in this Note. Particularly, the Court could better elaborate on specific factors needed to qualify as a minister under the exception. Currently, the Court emphasizes the function of the employee.^[252] However, this will continue to spur confusion and inconsistencies among the lower courts as it may be challenging to distinguish what functions qualify as ministerial in nature and what functions do not. Rather than refraining from adopting a “rigid formula,” the Court can adopt a semi-rigid formula that leaves less to the discretion of lower courts and decreases the number of employees who could qualify as a “minister.”

Furthermore, the Court can affirm decisions like Elvig or adopt the argument of the majority in Demkovich, which draw clear distinctions between the type of claims brought by employees of religious entities and limit the ministerial exception to tangible employment actions like hiring and firing.^[253] By doing so, the Court would reaffirm its faith in the lower courts’ ability to balance the concerns of religious entities, in light of guaranteed protections afforded by the First Amendment, with the judiciary’s concern of fairness and equity.

If the holding of Morrissey-Berru is any indication of the direction of the Court, it seems that future cases involving the ministerial exception will result in higher protections for religious entities.^[254] Additionally, after noted liberal Justice Ginsburg’s replacement with conservative Justice Barrett, the future of the Court leaves little room for hope among employees of religious entities.^[255] Justice Barrett’s record on the Seventh Circuit indicates that she will seek to shape the law by granting more religious exemptions from laws protecting employees to religious organizations.^[256] In Grussgott, then-Judge Barrett joined the majority in holding that the First Amendment barred a teacher’s claim against her religious employer for allegedly violating Title I of the ADA.^[257] The court found that the teacher’s duties included teaching students Hebrew and Jewish studies and, thus, she was a minister under the definition of the ministerial exception.^[258] Then-Judge Barrett, along with the majority, opined that drawing distinctions between secular and religious teachings is a type of “religious line-drawing” that is “incredibly difficult” and “impermissibly entangles the government with religion.”^[259] Put another way, the majority opined that courts faced with religious cases involving the ministerial exception should defer to religion and religious institutions because evaluating the functions necessary to qualify as a minister will infringe on the rights of religious entities guaranteed by the First Amendment.^[260] The fact that this case was decided before the Supreme Court’s ruling in Morrissey-Berru^[261] only helps substantiate the prediction that Justice Barrett will likely favor a broad definition of “minister” under the ministerial exception. Would Justice Barrett be willing to read Hosanna-Tabor’s and Morrissey-Berru’s opinions broadly enough to allow nontangible employment actions, such as the creation of a hostile work environment and unlawful harassment, to push past the immunity granted to religious employers under the ministerial exception? This remains to be seen.

It would be difficult, and perhaps in vain, to speculate how Justice Barrett will vote on a future ministerial exception case.^[262] Only time will tell how the Supreme Court will address these concerns generated by recent caselaw on the issue of immunity granted, without significant restrictions, to religious entities.

VI. Conclusion

Morrissey-Berru undoubtedly shows the Court’s willingness to grant broad immunity to religious employers for claims brought against them by employees. But because lower courts continue to inconsistently apply the ministerial exception, it may be that the Supreme Court needs to adopt a somewhat “rigid formula” or provide a list of factors that would help lower courts distinguish between minister-employees and non-minister-employees before the courts start reaching consistent decisions. One would hope that the Court’s decision in Hosanna-Tabor would continue to persuade the lower courts to more readily allow claims not involving tangible employment actions, such as hiring and firing decisions, to overcome the barrier put forth by religious exemptions such as the ministerial exception. But reliance on stare decisis may prevent such a result until the Supreme Court creates on-point, binding precedent.

Furthermore, the Court’s ruling in Espinoza grants such immunized religious entities greater access to public aid and funds without fear of losing immunity for unfair discriminatory actions against their employees. This Note does not seek to change the viewpoints of religious entities or advocate for religious entities to respect the rights of employees granted by antidiscrimination laws; rather, it aims to emphasize that religious entities should not be legally protected to take discriminatory employment actions at the expense of their employees and on the government’s dime. Put another way, as one scholar previously described it, “religious freedom is a world of permitted and funded discrimination.”^[263]

Although the recent addition of Justice Barrett could make it more likely that the definition of “minister” will be broadened to include more people and more likely that all claims against religious employers by their minister-employees will be barred from court, Justices’ political ideology or judicial philosophy before their appointment is not always dispositive of how they may vote on certain cases after their appointment.^[264] If the Court continues to grant broad immunity to religious employers without limiting the application of exceptions or access to government benefits, then it is likely that nearly 1.7 million employees will remain susceptible to discrimination without legal protections or recourse.^[265]

Farhan I. Mohiuddin