Key Point 8-10.01 The civil courts have consistently ruled that the First Amendment prevents them from applying employment laws to the relationship between a church and a minister.
A federal court in Oregon ruled the “ministerial exception” prevented it from resolving a discrimination claim by an applicant for a pastoral position in a church.
The decision reveals three important ideas.
1) It shows how this powerful legal doctrine directly applies to state anti-discrimination employment laws.
2) It shows how it applies to ministers and religious teachers, regardless of whether the individual is a prospective hire of the church’s, employed by the church, or no longer employed by the church.
3) It shows how churches should assert the ministerial exception as an affirmative defense when dealing with a lawsuit related to ministers and employment.
An open worship pastor position
In 2020, a church posted a job for “Pastor of Worship and the Arts” (“Worship Pastor”). The qualifications for the position were:
- “A Pastor’s heart. (We) are not merely looking for a musician, but someone who will actively pastor our community.
- Comfort and familiarity with technology and its application into worship services.
- Ability to utilize ProPresenter in the planning and implementation of worship services.
- Knowledgeable in multicultural communities and communication.
- A clear multicultural understanding and philosophy of worship that will translate to powerful multicultural worship experiences.
- Ability to lead musical worship, ideally with ability and experience in one or more instruments traditionally utilized in a worship setting.”
“Plaintiff” claimed that he possessed all the qualifications for the position, including “formal education in theology, psychology, and music” and significant experience as a “Worship Leader and Pastor, Preacher, and worship song writer.”
However, he was not selected.
The Plaintiff applied for the position two more times over the next few years. Again, he was not selected.
He said this was because he was not a native English speaker and was not familiar with American culture. The Plaintiff sued the church, claiming the church did not hire him because he was not a native English speaker and was unfamiliar with American culture.
He claimed discrimination based on national origin in violation of Title VII of the Civil Rights Act of 1964.
Church claims ministerial exception
The church moved for dismissal on the ground that the ministerial exception doctrine bars civil courts from resolving employment disputes between churches and clergy.
The federal court agreed.
The ministerial exception . . . in the employment context, allows religious institutions the “authority to select, supervise, and if necessary, remove a minister without interference by secular authorities.” The ministerial exception “insulates a religious organization’s employment decisions regarding its ministers from judicial scrutiny under Title VII.”
The court acknowledged that “there is no rigid formula for deciding when an employee qualifies as a minister.” But the inquiry focuses on “the actual functions of the employees said to be within the exception,” and considers “whether they are ordained, teach religion to other members, or perform duties that are primarily religious in nature.” (per Bohnert v. Roman Catholic Archbishop, 136 F. Supp. 3d 1094 (N.D. Cal. 2015).
The court concluded:
Plaintiff applied for the position of “Worship Pastor.” The qualifications included “a Pastor’s heart,” actively “pastoring” to the community, an understanding of the “philosophy of worship” and the “ability to lead musical worship.” These allegations establish that the job and duties at issue hold “ecclesiastical significance” and are similar to the “paradigmatic application of the ministerial exception to the employment of an ordained minister… .”
The Supreme Court has emphasized that when analyzing whether an employee qualifies as a minister, “what matters, at bottom, is what an employee does.” (per Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020)).
The allegations show that the “Worship Pastor” is meant to engage in “important religious functions” including leading others in worship and pastoring to the community… . The Court finds [the church] sought to hire for a role that falls under the ministerial exception. Accordingly, [the church] has “the authority to select and control who will minister to the faithful… .” The court dismisses Plaintiff’s Title VII claims as barred under the ministerial exception.
What this means for churches
Now let’s expand upon the three important ideas offered at the outset of this article.
1. The idea that the powerful ministerial exception doctrine can apply to state-level anti-discrimination employment laws
The Plaintiff asserted an appeal that the ministerial exception under Title VII only applies to federal cases, not state cases like this one. The court rejected this position, noting:
Plaintiff argues the ministerial exception does not apply to his state law claims because [the church has] not provided a case that applies the exception to Oregon’s anti-discrimination laws. The ministerial exception derives from Supreme Court case law interpreting the First Amendment to the United States Constitution. It thus applies to state law claims… . [The exception is] applicable to any state law cause of action that would otherwise impinge on the church’s prerogative to choose its ministers or to exercise its religious beliefs in the context of employing its ministers. Thus, any claim … that would require the church to employ [a minister] would interfere with the church’s constitutionally protected choice of its ministers, and thereby “would run afoul of the Free Exercise Clause.” (per Puri v. Khalaa, 844 F.3d 1152 (9th Cir. 2017)).
2. The idea that the ministerial exception can apply to ministers and religious teachers, regardless of whether the individual is a prospective hire, employed, or no longer employed by the church.
Previous cases regarding the ministerial exception usually involve ministers—or individuals who fulfill important religious duties through their roles—who are either employed by a church or recently dismissed by a church. As this case illustrates, the legal doctrine also applies to individuals during the application and selection phases for open roles.
3. The idea that churches can use the ministerial exception as an affirmative defense
The court concluded that the ministerial exception is an affirmative defense.
Generally, affirmative defenses to a lawsuit must be pleaded in a defendant’s response to a lawsuit or they are waived.
The ministerial exception’s status as an affirmative defense is not known by some attorneys who deal infrequently with church litigation. Therefore, it would be wise for church leaders to share this important point with the church’s attorney in any lawsuit in which the church will plead the ministerial exception.
A failure to do so may result in a loss of the exception.
Chris v. Kang, 2022 WL 2967455 (D. Ore. 2022).