Lund on the Ministerial Exception

Christopher C. Lund (Wayne State University Law School) has posted "Understanding the Ministerial Exception" (North Carolina Law Review, Vol. 90, No. 1, Fall 2011) on SSRN.

Here is the abstract:

Over the past forty years, courts have developed a body of law known as the “ministerial exception,” under which churches have a sort of constitutional immunity from employment discrimination claims brought by their ministers. Lower courts have all generally recognized this exception to some degree. But its contours are fiercely disputed and the Supreme Court has never clarified its boundaries or even whether it exists at all.

Disagreement also abounds at the more theoretical level, where we lack much of a shared understanding of the purposes behind the ministerial exception. Courts and commentators have often focused on establishing (or rebutting) one or another particular justification for the ministerial exception in one or another particular context. That has been valuable. But with such a narrow focus, we have missed some important aspects of the larger picture.

This article begins by suggesting that the ministerial exception is best conceived not as a single indivisible whole, but as the composition of several different discrete immunities. The piece sees the ministerial exception as having three components - a relational component, a conscience component, and an autonomy component - each with different purposes and different justifications. Deconstructing the ministerial exception in this way, the piece then examines the justifications for each of the various components of the ministerial exception, leading to a general and quite pluralistic defense of the thing that courts now call the ministerial exception.

This piece comes at an opportune time. Nearly forty years after the birth of the ministerial exception in the lower courts, the United States Supreme Court has finally agreed to hear its first ministerial exception case this fall. The case is EEOC v. Hosanna-Tabor, and the Court will have to decide both whether the ministerial exception exists and what it covers. After looking at the ministerial exception in general, this piece concludes by offering specific thoughts on the issues presented in Hosanna-Tabor.