The Corner

A Key Victory for Religious Freedom: Yes, Religious Employers Can Hire (and Fire) for Religious Reasons

On the morning of the National Prayer Breakfast, where official Washington unites — briefly — to hail religious liberty and honor our nation’s faith-filled past and present, a federal court of appeals provided tangible evidence of America’s constitutional commitments to religious institutions. In Alyce Conlon v. InterVarsity Christian Fellowship/USA, the United States Court of Appeals for the Sixth Circuit rejected a plaintiff’s attempt to enforce state and federal gender discrimination laws on one of the nation’s largest Christian campus ministries. InterVarsity had parted ways with the plaintiff in response to her divorce, and she sued — claiming that her termination constituted unlawful discrimination.

Applying the Supreme Courts’ ruling in Hosanna-Tabor Evangelical Lutheran Church and School, the Sixth Circuit rejected her claims, reaching three key conclusions:

First, the “ministerial exception” to nondiscrimination laws — which traditionally allows churches to choose their own ministers without government interference — applies not just to churches and church-based entities, but to “religious organizations:”

It is undisputed that InterVarsity Christian Fellowship is a Christian organization, whose purpose is to advance the understanding and practice of Christianity in colleges and universities. It is therefore a “religious group” under Hosanna-Tabor. Indeed, we have previously held that a Methodist hospital is “a clearly religious organization” for First Amendment purposes. Hollins, 474 F.3d at 224. Although the church in Hosanna-Tabor was part of the Missouri Synod denomination within Lutheranism, and the hospital in Hollins was specifically United Methodist within Methodism, the ministerial exception’s applicability does not turn on its being tied to a specific denominational faith; it applies to multidenominational and nondenominational religious organizations as well.

Second, courts should follow a functional rather than formalistic formula to determine whether employees are subject to the ministerial exception. In other words, the court doesn’t simply ask whether they are ordained or carry a specific title like “minister,” “priest,” or “pastor,” but instead look at a number of factors. In this case, the plaintiff’s religious title (“Spiritual Formation Specialist”) and undeniable religious functions were sufficient to establish her ministerial role. And that role, once established, grants the religious employer immense autonomy. Again, here’s the Court:

The parties point to no historical example in which the founding generation permitted any arm of the federal government—including the judiciary—to order a religious organization to accept or retain in a ministerial position a person whom the organization deemed unfit for ministry. To the contrary, the historical practice has always been that the government cannot dictate to a religious organization who its spiritual leaders would be.

Third, the Court held that the ministerial exception is non-waivable. The plaintiff claimed that InterVarsity’s promise on its website that it wouldn’t discriminate on the basis of gender (InterVarsity also clearly states that it’s a faith-based employer and that it hires staff “based on their religious beliefs” so that staff “share the same religious commitment”) meant that it had waived the ministerial exception, and that InterVarsity was therefore subject to federal and state nondiscrimination laws. Yet the ministerial exception is grounded in both the Free Exercise and Establishment Clauses of the First Amendment, and those clauses work together to impose dramatic limits on the government:

The ministerial exception is a structural limitation imposed on the government by the Religion Clauses, a limitation that can never be waived.

And again:

This constitutional protection is not only a personal one; it is a structural one that categorically prohibits federal and state governments from becoming involved in religious leadership disputes.

Each of these conclusions demonstrate profound respect for our constitutional structure and for the First Amendment. It is simply not the business of the government to determine who may or may not serve as a minister of the Gospel — or a minister of any other faith. Even in an era of radical growth in government’s reach and ambitions, the Constitution still matters, and the Constitution clearly and unmistakably places a high value on religious liberty.

My colleagues and I at the ACLJ had the honor of representing InterVarsity in this case, and I’d note that the case was argued by my colleague Abigail Southerland. It was her first federal court of appeals oral argument, and it resulted in a resounding victory for religious liberty. Not bad for a first argument.

The plaintiff has a right to appeal this ruling — either to seek an en banc review from the entire Sixth Circuit or to seek review from the Supreme Court, so the case may not be over. But for now this case stands as a clear and important precedent, protecting religious institutions of all faiths from government entanglement and intrusion.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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