Key Point 8-12.8. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court’s decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws.
A federal court in New York dismissed an age discrimination claim against a church, and based its conclusion on the federal Religious Freedom Restoration Act rather than the so-called ministerial exception. A minister was forced into retirement at age 70 by a policy of his denomination. The minister sued his church and a denominational official for violating a federal age discrimination law making it unlawful for any employer with 20 or more employees that is engaged in commerce to discriminate in any employment decision on the basis of the age of any person who is at least 40 years of age. The minister asserted that the mandatory retirement policy was a “secular” matter that was not influenced by any religious considerations. He acknowledged that most courts refuse to intervene in employment disputes between churches and clergy as a result of the so-called “ministerial exception” to employment laws, but he insisted that the ministerial exception “should not insulate a church’s non-religious regulations that discriminate against ministers on the basis of age.” A federal district court dismissed the lawsuit on the basis of the ministerial exception.
A federal appeals court ignored the ministerial exception and ruled that the lawsuit was barred by the federal Religious Freedom Restoration Act (RFRA). It noted that the ministerial exception “has no basis in statutory text, whereas RFRA, if applicable, is explicit legislation that could not be more on point. Given the absence of other relevant statutory language, the RFRA must be deemed the full expression of Congress’s intent with regard to the religion- related issues before us and displace earlier judge-made doctrines that might have been used to ameliorate the age discrimination law’s impact on religious organizations and activities.”
RFRA provides: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability … [unless] it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest.” The court reasoned that RFRA was broad enough to apply to a minister’s lawsuit against a church “since it applies to all federal law and the implementation of that law.” This language “easily covers the present action.”
The court rejected the minister’s claim that RFRA is unconstitutional. It concluded that RFRA represents a constitutional exercise of congressional power as it applies to the federal government. The court remanded the case back to the district court for reconsideration based on RFRA.
The district court concluded that it was compelled by the appeals court’s ruling to apply RFRA, rather than the ministerial exception, in resolving the plaintiff’s age discrimination claim. It noted that the appeals court found RFRA to be “the full expression of Congress’s intent with regard to the religion-related issues before us and displaces earlier judge-made doctrines that might have been used to ameliorate the ADEA’s impact on religious organizations and activities,” including the ministerial exception.
The district court concluded that outcome in this case was the same whether RFRA or the ministerial exception was applied, even though the denomination allegedly had made an exception to its retirement policy in at least one prior case:
The fact that the defendants may have deviated from this policy on one occasion, does not detract from the principle that it must have the right to appoint ministers without interference from the civil courts. Thus, because application of the ADEA to the defendant’s mandatory retirement policy would interfere with its right to select its own clergy, it places a substantial burden on its right to manage its own internal affairs. This conclusion is supported by the “long line of Supreme Court cases that affirm the fundamental right of churches to ‘decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine ….'” We cannot conceive how the federal judiciary could determine whether an employment decision concerning a minister was based on legitimate or illegitimate grounds without inserting ourselves into a realm where the Constitution forbids us to tread, the internal management of a church.
Application. Churches and denominations that are sued for discrimination under any federal employment law should cite both the ministerial exception and RFRA as defenses. Hankins v. The New York Annual Conference, 516 F.Supp.2d 225 (E.D.N.Y. 2007).
This Recent Development first appeared in Church Law & Tax Report, September/October 2008.
