Joshua B. Davis


Rooted in the First Amendment, the ministerial exception represents a general principle of law that has existed at least since the Magna Carta: the church autonomy doctrine. The ministerial exception reflects the church autonomy doctrine by recognizing a religious institution’s absolute right to select and control its ministers. Born in 1972 and receiving Supreme Court recognition in 2012, the ministerial exception’s application to most Title VII employment discrimination claims is unquestioned. But the ministerial exception’s application to hostile work environment claims, which arise from employment discrimination statutes like Title VII, is unclear.

The Supreme Court of the United States has not yet ruled on this issue. And the United States circuit courts of appeals are currently split. On the one hand, the Ninth Circuit has taken the position that the ministerial exception does not categorically bar hostile work environment claims. On the other hand, the Seventh and Tenth Circuits have taken a principled approach and have held that the ministerial exception categorically bars ministers’ hostile work environment claims against their religious employers.

The Seventh and Tenth Circuits’ holdings are more consistent with the purpose of the ministerial exception than the Ninth Circuit’s holding. Allowing ministers to bring their hostile work environment claims against their religious employers violates the First Amendment because it requires secular courts to make impermissible determinations of faith and doctrine. Importantly, defending a hostile work environment claim requires the employer (the religious institution) to justify its internal processes and decisions as “reasonable,” an inquiry the courts have no business making under the First Amendment. Furthermore, forcing a religious institution to remedy a hostile work environment would most likely require tangible employment actions, violating the First Amendment.

Going deeper, the Court should do more than pay lip service to the church autonomy doctrine. The Court should recognize that the ministerial exception, which is rooted in the church autonomy doctrine, is meant to recognize religious institutions as their own distinct entities with total control and autonomy over that which is within their jurisdiction. While the total breadth of the ramifications of this approach is beyond the scope of this Comment, the employment relationship between ministers is undoubtedly covered by the church autonomy doctrine and, therefore, the ministerial exception.

Most importantly, because the Supreme Court has signaled that it is heading in a new direction with the Establishment Clause, the Court should define a term that has eluded definition throughout our nation’s history: religion. Specifically, it should adopt James Madison’s definition of religion: “Religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence.” Accordingly, the ministerial exception must apply to hostile work environment claims to respect the jurisdictional boundaries established through James Madison’s definition of religion. While this approach would have wide-sweeping implications, this Comment only addresses it as it pertains to the ministerial exception barring ministers from bringing hostile work environment claims against religious institutions.

This approach would not leave ministers completely without a remedy. Ministers who are subjected to harassment would still be able to seek a remedy against the harassing ministers if the conduct rose to the level of an actionable tort. Furthermore, ministers have a right to negotiate contractual terms to protect themselves from the constitutional autonomy of their religious employers. They are also free to seek new employment if their current employment environment is unsatisfactory. But the ministerial exception must categorically bar hostile work environment claims because ministers are not like other employees; their primary mission is not always inherently to be the most productive, but to carry out the mission of the religious institution as defined by the religious institution itself.

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