Thursday, January 12, 2012

The Supreme Court Formally Adopts a Ministerial Exception in Employment Discrimination Cases

In a case that was perhaps surprising for its unanimity, if not for its result, the Supreme Court announced that religious organizations are not subject to federal discrimination laws with respect to their selection and management of ministers, and perhaps others.  The case at issue involves a claim of ADA retaliation by a Lutheran minister who also served as a teacher in the church school.  The Court unanimously decided that allowing a discrimination claim to go forward under the circumstances would constitute an unlawful interference in the religious and theological workings of the congregation, something strictly prohibited by the First Amendment.

The case has limited application with respect to churches and their ministers and other similar employee positions. From my perspective, what was interesting about this case was the bizarre argument propounded by the Obama administration's solicitor general that religious organizations deserve no more special protection from state interference under the First Amendment than does any other group of people, such as a social club. "This remarkable position," as Justice Roberts put it (he was being polite), does not square with the express language of the First Amendment.

Where this decision might have some interesting offspring is in its application to other groups with systematic and strongly held beliefs that the EEOC has considered "religious" for discrimination purposes. If those groups have employees, the organizations might well be insulated from employment discrimination law.  That would be pretty ironic.

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