Religious Ministers and the Scope of Their Rights to Non-Discrimination in Employment

The First Amendment is currently thought to bar ministerial employees from any recourse against their religious employer under a wide variety of non-discrimination statutes and other forms of legal protection. The typical critique of this state of affairs seeks to narrow the class of persons who count as ministerial employees. This paper focuses instead on an important, and peculiar, aspect of the ministerial exception doctrine. At present, the law generally prohibits any recovery by ministerial employees for employment discrimination by their religious employer even where the employer’s reasons for the discrimination have nothing to do with any religious doctrine, belief, article of faith, or religious practice.

And it is not clear whether the religious employer can freely waive this unduly broad immunity, even for the most laudable reasons. This Article criticizes this state of the law as unjustified.