Article summary. Can churches discriminate on the basis of sexual orientation? Can they terminate employees, or refuse to consider applicants for employment, on the basis of sexual orientation? These are questions that many church leaders have asked. Until now, few courts have addressed this issue directly. That has changed. A Minnesota court recently issued a ruling in a case brought against a church by its former music director who was terminated on the basis of his sexual orientation. The court concluded that the music director could not sue the church for discriminating against him. The court’s ruling is fully addressed in this feature article.

Many churches regard homosexuality as a sin, and have adopted employment standards that prohibit the employment of homosexuals. Are such policies lawful? Can such a church be sued by an employee who is dismissed on the basis of his sexual orientation? Can the church be sued by a person whose application for employment is rejected because of his sexual orientation? Does it matter if the person is a minister? All of these questions were addressed in a recent Minnesota case. This feature article will summarize the facts of the case, summarize the court’s ruling, and assess the case’s significance for church leaders.

A church hired a music director (Roger) in 1994. Roger was responsible for managing and rehearsing the church’s choir, selecting and preparing music for regular Sunday services and other special services, playing the organ, and supervising other church music groups, such as the children’s choir and the handbell choir. Roger’s sexual orientation is bisexual.

In 1999, the church committed itself to be a “reconciling congregation.” A reconciling congregation is one that openly welcomes gay, lesbian, and bisexual parishioners into its membership. The process of formally adopting this policy at the church began in 1992 and was protracted and contentious.

In 2000, Roger observed a church member (Ken) and the church’s handbell choir director (Marilyn) engaged in a conversation in the church parking lot. Roger approached the two because he simply wished to be sociable. He discovered that the two were discussing the church’s decision to identify itself as a reconciling congregation. After listening to Ken express disagreement with the reconciliation policy and strong disapproval of homosexuals, Roger commented that he had not been aware that he “was so homophobic.”

The following day, Ken sent a letter to the church’s senior pastor expressing his disapproval of the congregation’s reconciling policy decision and demanding an apology from Roger for referring to him as “homophobic.” Roger was advised of Ken’s letter and was told that unless he sent an acceptable letter of apology, he would be discharged. Roger responded that he could not in good conscience apologize for voicing support of the church’s reconciling policy. Roger was then discharged.

A few months later Roger filed a charge of discrimination with the Minnesota Department of Human Rights (MDHR), alleging discrimination and retaliation by the church on the basis of sexual orientation under the Minnesota Human Rights Act (MHRA). The MDHR dismissed Roger’s claim, finding no probable cause to charge the church.

Roger then commenced this action alleging that the church’s demand that he write a letter of apology and his subsequent discharge constituted discrimination and retaliation on the basis of his sexual orientation in violation of the MHRA. The church asked the court to dismiss Roger’s claims on the ground that, as a church, it is not subject to the Act and therefore the court lacked jurisdiction over the case. The court agreed and dismissed the case. Roger appealed.

The appeals court began its opinion by stating the three issues to be decided:

1. Does the Minnesota Human Rights Act require that sexual orientation be a “bona fide qualification of employment” in order for religious organizations to claim exemption?

2. Does the Minnesota Human Rights Act protect a church music director from discrimination and retaliation on the basis of sexual orientation?

3. Did the church waive the exemption provided for in the Minnesota Human Rights Act for religious organizations with respect to employment discrimination on the basis of sexual orientation?

The court’s answers to these questions is summarized below.

1. Does the Minnesota Human Rights Act require that sexual orientation be a “bona fide qualification of employment” in order for religious organizations to claim exemption?

The MHRA prohibits any employer in the state having at least one employee from discriminating in any employment decision on the basis of “race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, sexual orientation, or age.” Discrimination is defined to include (1) refusal to hire; (2) maintaining a system of employment that unreasonably excludes a person seeking employment; (3) dismissal; or (4) tenure, compensation, conditions, facilities, or privileges of employment. MHRA 363A.08.

Although the MHRA prohibits discrimination on the basis of sexual orientation, there are two exemptions for religious associations:

In dismissing Roger’s claims, the trial court found that the church, as a church, was exempt under the MHRA from claims of discrimination and retaliation based on sexual orientation, and that the limit on this exemption for “secular employees” did not apply to Roger as a music director.

On appeal, Roger pointed out that the first exemption only exempts cases where sexual orientation is a “bona fide occupational qualification” in hiring. He claims that this is a narrow or specific exemption. By contrast, he claimed that the second exemption is a “broad” or general exemption that exempted all religious employers from the prohibition against discrimination on the basis of sexual orientation. Roger claimed that because the overriding purpose of the MHRA is to prohibit discrimination, the narrower exemption should be read as limiting the more broadly worded exemption. This interpretation would limit the exemption to situations where an employee’s sexual orientation was a bona fide occupational qualification. The appeals court pointed out that since sexual orientation is “not often a clear occupational qualification” Roger’s argument would “substantially constrict” the broad exemption in section 363A.20 by limiting it to cases in which the sexual orientation of an employee is shown to be a bona fide occupational qualification.

The court conceded that Roger “has identified an apparent anomaly in the statutory exemptions for religious organizations in the MHRA. The two provisions are not congruent.” Further, the court agreed with Roger that when general statutory provisions conflict with specific provisions, the specific provisions prevail. However, the court did not agree that the bona fide occupational qualification exemption is the more specific rule, or even if it is, that it should prevail over the general exemption found in section 363A.26.

The court concluded that the bona fide occupational qualification exemption “can be read as only applying to hiring situations,” and that “the legislature may craft a narrower exemption for hiring and a broader exemption for religious organizations when it comes to sexual orientation and employment more generally. As so read, there is not an irreconcilable statutory conflict between these provisions that would bar the church from claiming the exemption of section 363A.26.” In other words, the apparent incompatibility of the two exemptions can be eliminated by limiting the bona fide occupational qualification exemption to hiring decisions, and the broader exemption to all other employment decisions including dismissal.

2. Does the Minnesota Human Rights Act protect a church music director from discrimination and retaliation on the basis of sexual orientation?

The second issue was whether the trial court erred in concluding that Roger, as a church employee, was exempt from MHRA’s ban on employment discrimination based on sexual orientation. Roger insisted that as a church music director he was a “secular employee” who was entitled to protection under the MHRA since the broad exemption in section 363A.26 did not apply to “secular business activities engaged in by the religious association, religious corporation, or religious society, the conduct of which is unrelated to the religious and educational purposes for which it is organized.”

The court noted that the MHRA defines a secular activity as one “which is unrelated to the religious and educational purposes for which [the religious association] is organized.” It also noted that “Minnesota has no [cases] that further define who is a secular employee of a religious organization or that classify a church music director as a religious, as opposed to a secular, position.” But, the court pointed out that several courts around the country have addressed the issue of whether a church music director is a secular employee for purposes of the nondiscrimination provisions in Title VII of the federal Civil Rights Act of 1964. It observed, “Several decisions from other jurisdictions have addressed the problem of classifying church staff in the context of Title VII claims. Under the so-called ministerial exception, employment relationships between religious associations and their ministerial staff are exempt from the requirements of Title VII. Whether an employee is covered by the ministerial exception or is secular depends upon the function of the position. One need not be an actual ordained minister to fall within this exception.”

The court referred to a federal appeals court case in which a church music director’s position fell within the Title VII ministerial exception. Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999). The Starkman case is addressed fully in the July-August 2000 issue of this newsletter. In the Starkman case the court developed a test that examined “the employment duties and requirements of the employee as well as her actual role at the church.” Under the Starkman test, the court first asks whether the employment decision was based largely on religious criteria. Second, the court determines whether the employee was qualified and authorized to perform the ceremonies of the church. Finally, the court asks whether the employee engaged in activities traditionally considered ecclesiastical or religious, including whether the employee attends to the religious needs of the faithful. The court noted that the third factor was the most important in its analysis. In large part, “these questions revolve around whether the employee’s duties consist of the propagation of religious faith or doctrine.”

Using this analysis, other jurisdictions have found that the role of “music director” has a religious significance and is not “secular.” The court referred to EEOC v. Roman Catholic Diocese, 213 F.3d 795 (4th Cir. 2000) (holding that a music director’s gender discrimination claim under Title VII was barred under the ministerial exception and noting “music is a vital means of expressing and celebrating those beliefs which a religious community holds most sacred”); and Miller v. Bay View United Methodist Church, Inc., 141 F.Supp.2d 1174 (E.D. Wis. 2001) (holding that a church music director’s discrimination claims were barred by the ministerial exception because he “engaged in traditionally ecclesiastical or religious activities”).

The court noted that Roger’s work at the church must be analyzed to determine whether his position as music director is “secular.” In his lawsuit, Roger described his work for the church as including “building and maintaining choir membership; selecting and preparing music for Sunday services and other special services throughout the church year; rehearsing the choir; playing the organ for services, weddings, and funerals; arranging for visiting musicians to participate in church services and special events, supervising the directors of [the church’s] special musical groups (such as the children’s choir or the handbell choir).”

The court acknowledged that the three-part Starkman test “is not easily applied to this job description” since “it is not clear that the initial decision to hire a music director is based on religious criteria or that music directors are qualified to perform religious ceremonies.” However, the court stressed that the Title VII test is “more demanding than the Minnesota statutory test.” The Minnesota law asks “whether Roger’s work as a music director is “related to the religious and educational purposes for which [the church] is organized.” The court concluded that this requirement was met:

We recognize that music generally has a central and substantial role in expressing religious faith; it is often described as a “ministry of music.” Music addresses the religious needs of church members and plays an integral part of the worship program. Roger states that his responsibilities include “selecting and preparing” music for religious services. Clearly, Roger had to be familiar with the corpus of church music and theology to select the proper music for such services. In performing this task, he is expected to consider the time in the church year, the scripture readings, the sermon topic, the church’s basic faith principles, and other religious matters. That Title VII cases have considered music directors exempt from the protections of that act argues in favor of our concluding that a music director plays a religious role for MHRA purposes. Accepting the facts alleged in Roger’s complaint as true, we cannot say the district court erred in finding as a matter of law that Roger was a religious employee.

3. Did the church waive the exemption provided for in the Minnesota Human Rights Act for religious organizations with respect to employment discrimination on the basis of sexual orientation?

The third issue was whether statements contained in the church’s Personnel Handbook and the United Methodist Church’s Book of Discipline waived the church’s exemption from the MHRA. The Personnel Handbook, which sets forth the church’s employment policies, states,

Non-discrimination in Employment. It is the policy of the Church to afford equal employment opportunity to qualified individuals regardless of their race, color, national origin, age, sex, marital status, sexual orientation, handicap status or welfare status and to conform to applicable laws and regulations. This policy of equal opportunity takes into account all aspects of employment relationship, including hiring, promotion, retirement, termination, training and compensation.

The doctrinal principles of the United Methodist Church are set forth in the Book of Discipline, which states:

Roger claimed that these provisions amounted to a “waiver” of the exemption of religious organizations from the non-discrimination requirements of MHRA. The court noted that this question had never been addressed by any Minnesota court. However, a number of courts have addressed the question of waivers under Title VII. The court referred to four cases:

Case 1. An employee bringing a Title VII claim against a religious educational employer argued that the employer waived its Title VII exemptions for such institutions because it represented itself as being an “equal opportunity employer.” A federal appeals court held that Title VII exemptions “reflect a decision by Congress that religious organizations [are to be] free from government intervention. Once Congress stated that this title shall not apply to religiously-motivated employment decisions by religious organizations, neither party could expand the statute’s scope.” Hall v. Baptist Memorial Health Care Corporation, 215 F.3d 618 (6th Cir. 2000).

Case 2. A federal appeals court ruled that an employee’s waiver argument “incorrectly views the exemptions for religious [institutions] as a privilege or interest granted to those organizations. Instead, those exemptions reflect a decision by Congress that the government interest in eliminating religious discrimination by religious organizations is outweighed by the rights of those organizations to be free from government intervention.” Little v. Wuerl, 929 F.3d 944 (3rd Cir. 1991).

Case 3. A federal court ruled that a religious college could not waive its exemption under Title VII. Siegel v. Truett-McConnell College, 13 F.Supp.2d 1335 (N.D. Ga. 1994).

Case 4. The New Jersey Supreme Court held that the first amendment did not bar an employee’s claims against a church-affiliated college for breach of contract where the employment contract did not raise questions of religious doctrine. The court noted that it could review the college’s employment manual to determine whether religious doctrine or policies precluded consideration of the employment dispute. The Minnesota court concluded that “our case is different; Roger’s claims are based on the legislative policy as expressed in the MHRA and not solely on an allegation of breach of contract.” Welter v. Seton Hall University, 608 A.2d 206 (N.J. 1992).

Roger claimed that the judicial reluctance to recognize waivers gives religious groups a privileged position in violation of the first amendment’s nonestablishment of religion clause. The court disagreed,

The court cautioned that it was not impossible for churches to waive their exemption from the MHRA. If a waiver is “specific and unequivocal, and if the scope of that waiver is evident, then there is not a risk of entanglement. It ought to be recognized. It would be illogical and unjust to ignore such a waiver.”

However, “a pronouncement by the religious organization that it will conform to the principle of nondiscrimination only indicates an intent to voluntarily embrace that principle. Without greater clarity, we would be compelled to conduct an examination and interpret statements of the church and the United Methodist Church on doctrinal policy as it relates to the alleged reasons for an employee’s discharge. This invites an unconstitutional entanglement of the church with the judicial and administrative branches of government. We conclude that there is not an effective waiver in this case.

The court concluded with the following observation,

What is the relevance of this case to church leaders? Consider the following points:

1. In general. A decision by a Minnesota appeals court is not binding in any other state, and may be overturned by the state supreme court. However, since this is one of the few cases to address the issue of church liability for discriminating on the basis of sexual orientation, it likely will be given greater weight by courts in other jurisdictions. This makes the case relevant to church leaders in every state.

2. Federal law. Roger’s lawsuit accused the church of violating a state law barring employers from discriminating against employees on the basis of sexual orientation. Roger could not base his lawsuit on federal law, since no federal law currently bars employers from discriminating on the basis of sexual orientation.

Title VII of the federal Civil Rights Act of 1964 bars employers engaged in interstate commerce and having at least 15 employees from discriminating in employment decisions on the basis of sex. A few courts have ruled that this prohibition may protect against some forms of discrimination based on sexual orientation. For example, the United States Supreme Court ruled in 1998 that an employer may be liable for violating Title VII’s ban on sex discrimination in employment if its employees engage in sexual harassment of a fellow employee of the same gender because of his sexual orientation. Oncale v. Sundowner Offshore Services, Inc., 119 S.Ct. 998 (1998). Another court ruled that employers may be liable for violating Title VII if some employees discriminate against homosexual employees because of their sex instead of their sexual orientation. Centola v. Potter, 183 F.Supp.2d 403 (D. Mass. 2002). The court concluded that “there is sufficient evidence to support the claim that [the victim’s] co-workers punished him because they perceived him to be impermissibly feminine for a man.” In both of these cases, the court stressed that it was not creating an exemption to the general rule that Title VII does not bar discrimination based on sexual orientation.

Bills have been introduced in Congress that would ban private employers from discriminating on the basis of sexual orientation, but so far none has been enacted. A recent example was the Employment Nondiscrimination Act which was co-sponsored in the Senate by Senators Jeffords, Kennedy, Lieberman, and Specter. This bill contained a broad exemption for religious organizations, including religious schools.

3. State discrimination laws. Minnesota’s MHRA prohibits employers having at least one employee from discriminating in any employment decision on the basis of sexual orientation. The definition of discrimination in this context is broad, and extends to (1) a refusal to hire; (2) maintaining a system of employment that unreasonably excludes a person seeking employment; (3) dismissal; or (4) tenure, compensation, conditions, facilities, or privileges of employment.

Several other states have enacted similar laws banning private employers from discriminating in employment decisions on the basis of sexual orientation. A table summarizes these laws. StateApplies to employers with at least this many employeesEffective dateExemption for religious organizations

Maine enacted a statute in 1997 that barred private employers from discriminating on the basis of sexual orientation, but it was repealed by ballot referendum in 1998. A second statute enacted in 2000 provided it would not take effect unless endorsed by a majority of those voting in the state’s general elections; Maine voters defeated that initiative on November 7, 2000.

4. Municipal discrimination laws. Nearly 100 cities have enacted their own civil rights laws that in some cases bar employers from discriminating against employees and applicants for employment based on their sexual orientation. For example, 33 cities in California have enacted such laws.

5. Prior cases. Few courts have addressed discrimination by churches based on sexual orientation. Summarized below are a few of those cases.

Case 1. A Minnesota appeals court ruled a local civil rights ordinance banning discrimination against homosexuals could not be applied to a religious organization. A Catholic religious center in Minneapolis rented space to a number of community groups, including Alcoholics Anonymous, Weight Watchers, and Dignity (an organization composed largely of homosexual Catholics). In 1986, the local archbishop was instructed by the Vatican to determine whether or not pastoral practices in the diocese were consistent with the Vatican’s “Letter to Bishops on the Pastoral Care of Homosexual Persons.” This letter prohibits church facilities from being used by organizations that oppose the Vatican’s position on homosexuality. Since Dignity’s beliefs were in conflict with the Vatican’s position, its lease of space in the religious center was terminated. Dignity filed a complaint with the Minneapolis “department of civil rights,” claiming that a municipal civil rights ordinance banning discrimination against homosexuals had been violated by the termination of its lease. It named the center along with the diocese and archbishop as defendants. The complaint was dismissed, and Dignity appealed to an appeals board which concluded that Dignity’s civil rights had been violated by the defendants. It assessed fines, and ordered the defendants to refrain from any further discrimination against homosexuals. The defendants appealed this order to a state appeals court. The court ruled that application of the civil rights ordinance to the center, diocese, and archbishop constituted prohibited “entanglement” of the government in religious affairs in violation of the first amendment. It concluded: “In determining whether state action constitutes excessive entanglement, a court must undertake an examination of the character and purposes of the groups involved, the nature of the state’s involvement, and the relationship that results between the state and religious authority. In this case, we conclude the nature of the state’s activity clearly evinces excessive entanglement …. A city or municipality is without jurisdiction to enforce civil rights protections against a religious organization enforcing conformity of its members to certain standards of conduct and morals. We therefore conclude the order of the [appeals board] must be reversed as excessive entanglement in religious affairs contrary to the first amendment of the United States Constitution.” This case is one of a few decisions recognizing that the first amendment permits a church to “enforce conformity of its members to certain standards of conduct or morals,” notwithstanding a civil rights law to the contrary. Dignity Twin Cities v. Newman Center and Chapel, 472 N.W.2d 355 (Minn. App. 1991).

6. The employment of clergy. Many courts have ruled that the first amendment guaranty of religious freedom prevents civil rights laws from applying to the relationship between a church and its pastor. This so-called “ministerial exception” to civil rights laws was perhaps best stated by a federal appeals court in a case involving a pastor’s claim that he had been expelled from his church because of his wife’s race. The court ruled that there is no exception to the prohibition against judicial interference with matters of church administration, including the selection or dismissal of clergy. It concluded: “This case involves the fundamental question of who will preach from the pulpit of a church …. The bare statement of the question should make obvious the lack of jurisdiction of a civil court. The answer to that question must come from the church …. The people of the United States conveyed no power to Congress to vest its courts with jurisdiction to settle purely ecclesiastical disputes.” Simpson v. Wells Lamont Corporation, 494 F.2d 490 (5th Cir. 1974).

To illustrate, a federal appeals court ruled that it was barred by the first amendment guaranty of religious freedom from resolving a claim that a church had engaged in unlawful sex discrimination by dismissing a non-ordained female youth pastor because of her “marriage” to another woman. Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648 (10th Cir. 2002). An Episcopal church hired a female youth pastor (Lee Ann) whose job description was to direct a youth program incorporating “fellowship, education, service, and worship.” The church did not require its youth pastor to be a member of its denomination, but it did require that the youth pastor have “a belief that Jesus is Lord and an ability to share that with youth in a constructive and non oppressive manner.” Lee Ann quickly became involved in the youth ministry of the church. She led a youth mission trip to an Indian reservation, and planned numerous recreational and spiritual events. Her first “performance appraisal” noted that she was “inspirational to youth and loves youth; ministers to parents as well as youth.” About a year after beginning her duties as youth pastor, Lee Ann had a “commitment ceremony” with her partner who was a female pastor of another area church. This ceremony violated Episcopal doctrine embodied in the “Lambeth Resolution.” This Resolution was the result of a meeting held every ten years by the bishops from the worldwide Anglican communions which gather in Lambeth, England. The Lambeth Resolution provides:

The church held a series of congregational meetings to discuss Lee Ann’s status. As it turned out, an overwhelming majority of those who spoke at the meetings supported Lee Ann. At one meeting, Lee Ann declared, “Some people say that it is not sinful to be a homosexual, but that it is sinful to engage in a homosexual relationship. This thinking is flawed for if it is really ok to be gay, then it would not be wrong to engage in a healthy, committed relationship …. Few people are called to celibacy God gives us all desires for companionship, intimacy, for someone to share joys and sorrow with to grow old with. I am no different. And I am blessed to have found someone like [my companion] …. The issue of homosexuality and inclusivity are at the forefront of every major denomination and threaten to tear the church apart. I want to scream out we cannot continue to act in ways that are bigoted, intolerant, unloving, un Christlike because of teachings that are based on centuries of misunderstanding and prejudice.” Despite strong congregational support in favor of retaining Lee Ann, the church dismissed her as a result of her “marriage” to another woman. Lee Ann sued her church, claiming that it had discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964.

A federal district court dismissed her claim on the ground that the first amendment guaranty of religious freedom bars the civil courts from resolving disputes involving the dismissal of clergy. Lee Ann appealed, and a federal appeals court affirmed the dismissal of the lawsuit. The court observed,

The court concluded that “when a church makes a personnel decision based on religious doctrine, and holds meetings to discuss that decision and the ecclesiastical doctrine underlying it, the courts will not intervene.”

This case illustrates the two points. First, the ministerial exception has been almost universally recognized by both federal and state courts, and it provides churches with virtual immunity from employment discrimination claims by current of former ministers. Second, the term “minister” is not limited to ordained clergy, but can include lay employees “whose primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order or participation in religious ritual and worship.”

7. The Minnesota case. The Minnesota court made two fundamental errors.

The court concluded that the bona fide occupational qualification exemption “can be read as only applying to hiring situations,” and that “the legislature may craft a narrower exemption for hiring and a broader exemption for religious organizations when it comes to sexual orientation and employment more generally. As so read, there is not an irreconcilable statutory conflict between these provisions.” In other words, the more specific exemption pertaining to sexual orientation as a bona fide occupational qualification only pertains to “hiring” decisions by religious organizations, while the broader exemption in section 363A.26 applies to all other aspects of the employment relationship including dismissals.

This interpretation of the two statutes is completely unsupported by their own language. It is true that the more general statute (section 363A.26) contains no “bona fide occupational qualification” requirement, and clearly applies to all aspects of the employment relationship. But the same is true of section 363A.20, which specifies that the nondiscrimination provisions of section 363A.08 do not apply to a religious organization with respect to qualifications based on religion or sexual orientation when religion or sexual orientation shall be a bona fide occupational qualification for employment.” This language is not limited to hiring decisions, as the court concluded. Instead, it is a broad exemption from the discrimination provisions contained in section 363A.08 which prohibit discrimination by employers in any employment decision including hiring, firing, and compensation. It is obvious that sections 363A.20 and 363A.26 conflict, since one limits the exemption from sexual orientation discrimination to positions in which “religion or sexual orientation shall be a bona fide occupational qualification for employment,” while the other section does not.

The court’s attempt to “reconcile” the two sections by limiting section 363A.20 to “hiring” decisions is not only unprincipled, but it also creates a potential problem for churches that choose to discriminate in employment decision on the basis of sexual orientation. When it comes to hiring decisions, Minnesota churches cannot discriminate on the basis of sexual orientation unless sexual orientation is a bona fide occupational qualification. On the other hand, churches are free to discriminate in all other aspects of the employment relationship (termination, compensation, promotion, fringe benefits, etc.) on the basis of sexual orientation without having to prove that sexual orientation is a bona fide occupational qualification.

What, then, is a bona fide occupational qualification? The court did not address this question, but in other contexts the term generally means a status that is “reasonably necessary to the normal operation of that particular business or enterprise.”

Section 363A.26 specifies that the exemption of religious organizations from the prohibition of discrimination in employment decisions based on sexual orientation “shall not apply to secular business activities engaged in by the religious association, religious corporation, or religious society, the conduct of which is unrelated to the religious and educational purposes for which it is organized.” There is little doubt that the Minnesota legislature intended this language to refer to overtly commercial activities carried on by religious organizations as opposed to their religious activities. The court misconstrued this language to mean that each staff position in a church must be scrutinized to determine if it is “religious” or “secular,” since the exemption from the ban on sexual orientation discrimination only applies to “religious” positions and not “secular” ones. This is the very type of analysis that the United States Supreme Court denounced in a landmark 1987 ruling. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987). The Supreme Court observed, “It is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.”

The Minnesota court correctly noted that Roger was a “minister” and therefore the “ministerial exception” to civil rights laws applied. But, it improperly did so in the context of applying the “secular business activities” exception under section 363A.26.

8. Waiver. Can a church waive its exemption from state laws prohibiting employers from discriminating in employment decisions on the basis of sexual orientation? The Minnesota court concluded that churches may waive this exemption through “nondiscrimination” provisions in personnel handbooks or policy manuals, but only if the waiver is “specific and unequivocal, and the scope of that waiver is evident.” However, “a pronouncement by the religious organization that it will conform to the principle of nondiscrimination only indicates an intent to voluntarily embrace that principle. Without greater clarity, we would be compelled to conduct an examination and interpret statements of the church on doctrinal policy as it relates to the alleged reasons for an employee’s discharge. This invites an unconstitutional entanglement of the church with the judicial and administrative branches of government. We conclude that there is not an effective waiver in this case.”

9. Other theories of liability. While no federal or state law prohibits churches from discriminating in employment decisions on the basis of sexual orientation, this does not necessarily mean that churches are immune from liability for this kind of discrimination. For example, assume that a church dismisses a long-term non-minister employee after discovering that he is a homosexual. While the dismissed employee cannot sue the church for discrimination based on sexual orientation, he may be able to sue the church for breach of contract, defamation, invasion of privacy, or some other theory of liability. As a result, church leaders should not assume that their church is immune from liability in such cases.

10. Should churches amend their bylaws? Should churches that choose to discriminate in employment decisions on the basis of sexual orientation amend their bylaws to say so? This is not required in any state. A table in this article summarizes the exemption of religious organizations from state laws prohibiting discrimination in employment on the basis of sexual orientation. This table demonstrates that religious organizations are exempt regardless of whether they have a special clause in their bylaws that states their theological opposition to hiring homosexual employees.

The only current exception to this rule may be Minnesota. The Minnesota Human Rights Act, as interpreted by the state appeals court in the case addressed in this article, exempts churches from the ban on discrimination based on sexual orientation in hiring decisions only with respect to (1) lay employees for whom heterosexuality is a bona fide occupational qualification, and (2) ministers. Minnesota churches can help demonstrate that heterosexuality is a bona fide occupational qualification for lay employees by adopting a policy to this effect that clearly articulates a theological basis. Such a policy can be in the church’s policy manual, or in a resolution adopted by the board or membership. No amendment to the church bylaws is necessary.

© Copyright 2004 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m43 c0404