Pastor, Church & Law

Discrimination Based on Sexual Orientation

§ 08.21.02

Key Point 8-21.02. Many state civil rights laws prohibit employers with a specified number of employees from discriminating in any employment decision on the basis of the sexual orientation of an employee or applicant for employment. Such laws generally exempt religious organizations.

Several states have enacted laws prohibiting employers from discriminating against employees and applicants for employment on the basis of sexual orientation or gender identity. Many contain an explicit exemption for religious organizations. Even without such an exemption, it is unlikely that the civil courts would apply such a law to the relationship between a church and its ministers because of a 2012 ruling by the United States Supreme Court affirming the “ministerial exception.” 140 Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012). The Hosanna-Tabor case is addressed in sections 2-04.1 and 8-10.1 of this text.The ministerial exception is an exception to the liability of churches under state and federal employment discrimination laws for the employment discrimination claims of ministers. As a result, it is unlikely that the civil courts will entertain employment discrimination claims of clergy against their employing church.

A few courts have addressed the liability of religious organizations for discriminating against employees on the basis of their sexual orientation. The leading cases are summarized below.

Case studies

  • A Massachusetts court ruled that a church could not be sued for dismissing a homosexual employee. The court noted that because the employee had been terminated “for being gay … and [was based on the] religious belief [of the church] that homosexuality is a sin for which one must repent,” the imposition of liability in such a case “would burden the church’s right to free exercise of religion.” 141 Madsen v. Ervin, 481 N.E.2d 1160 (Mass. App. 1985).
  • A church hired a bisexual music director (the plaintiff). The plaintiff was fired when he refused to apologize to a church member for calling him homophobic. He 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 the claim, finding no probable cause to charge the church. The plaintiff then sued the church in court. A trial court ruled that churches were exempt from the MHRA, and it dismissed the case. A state appeals court concluded: (1) Churches can discriminate in hiring decisions on the basis of sexual orientation, but only for (a) “ministerial” positions, or (b) nonministerial positions for which heterosexuality is a “bona fide occupational qualification.” (2) Churches can discriminate in all other employment decisions (other than hiring) on the basis of sexual orientation. This is true for ministerial and non-ministerial positions. 142 Egan v. Hamline United Methodist Church, 2004 WL 771461 (Minn. App. 2004).
  • 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. 143 Dignity Twin Cities v. Newman Center and Chapel, 472 N.W.2d 355 (Minn. App. 1991).
  • A New York court ruled that a church could be sued by a former employee for discriminating against him on the basis of his religion and sexual orientation. A homosexual, Jewish man was employed by a church in an administrative capacity. The employee claimed that his supervisor acted in a hostile manner toward him because of his sexual orientation and religious background, and that she undermined him in his job performance and treated him differently than she did heterosexual employees. The former employee sued the church, claiming that it was responsible for its supervisor’s acts of religious and sexual orientation discrimination. He asked the court to award him back pay, front pay or reinstatement, compensatory and punitive damages, interest, attorney’s fees, and costs. The church argued that it was exempt from the anti-discrimination provisions of the civil rights laws of the State of New York and New York City. The court conceded that both laws permit religious organizations to limit employment or give preference to persons of the same religion or denomination, or to promote the religious principles of the organization. However, the court noted, “those limited exemptions for religious organizations are a far cry from letting them harass their employees and treat the employees in an odiously discriminatory manner during their employment, and to use derogatory expressions toward the employees. … Thus, the claims cannot be dismissed due to defendant’s status as a religious organization.” 144 Logan v. Salvation Army, 809 N.Y.S.2d 846 (Sup. Ct. 2005).

Several 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.

Can a church waive its exemption from state laws prohibiting employers from discriminating in employment decisions on the basis of sexual orientation?

One court ruled that churches may waive an 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.” 145 Egan v. Hamline United Methodist Church, 2004 WL 771461 (Minn. App. 2004).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.”

Does the Civil Rights Restoration Act prevent churches from discriminating against persons on the basis of sexual orientation?

The Rehabilitation Act of 1973, 146 29 U.S.C. § amended by the Civil Rights Restoration Act, forbids discrimination on the basis of handicap by any institution that receives federal financial assistance. In 1987, the Supreme Court ruled that a public school teacher suffering from tuberculosis was a “handicapped individual” entitled to protection under the Act. 147 Arline v. School Board of Nassau County, 107 S. Ct. 1123 (1987).The Court emphasized that the teacher was handicapped because her tuberculosis caused physical impairment, not because the disease was contagious. “This case does not present, and we therefore do not reach,” concluded the Court, “the questions whether a carrier of a contagious disease such as AIDS could be considered to have a physical impairment, or whether such a person could be considered, solely on the basis of contagiousness, a handicapped person.” To clarify that a contagious disease (such as AIDS) does not render a person “handicapped” in the absence of physical impairment, the Act was amended to read that the term handicapped does not include “an individual who has a currently contagious disease or infection and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of other individuals or who, by reason of the currently contagious disease or infection, is unable to perform the duties of the job.” 148 29 U.S.C. § 706(8)(C).According to this language, an AIDS victim could be classified as handicapped if he or she was physically impaired by the disease and did not constitute a threat to the health or safety of others. A few courts have ruled that under these circumstances AIDS is a handicap. 149 See, e.g., Thomas v. Atascadero Unified School District, 662 F. Supp. 376 (C.D. Cal. 1987); District 27 Community School Board v. Board of Education, 502 N.Y.S.2d 325 (1986).

While it is possible that the federal courts will interpret the term handicapped to include homosexuals, such a result is unlikely as a result of the overwhelming expression by Congress that homosexuality is not a handicap. Consider the following sampling of comments (contained in the Congressional Record) of some of the sponsors and co-sponsors of the bill (many other examples could be cited). “[The Act] does not prohibit discrimination against homosexuals and does not give sweeping protection to alcoholics and drug addicts” (Senator Kennedy). “The bill does not change the definition of who is handicapped. There are no Supreme Court rulings which require anyone to consider alcoholics, drug addicts, active homosexuals or transvestites to be handicapped. [Some have suggested that] churches and religious leaders could be forced to hire a practicing homosexual drug addict with AIDS to be a teacher or youth pastor. This is the most blatant untruth of all. No American government has ever had or could ever get the power, under our Constitution, to dictate any choice of pastor in a church—whether it be a youth pastor or any other” (Senator Mitchell). “There is no truth to the charges that the Act would require schools, churches, or any employer to hire homosexuals, alcoholics, drug abusers, or victims of AIDS” (Senator Conrad). “The Civil Rights Restoration Act absolutely does not expand coverage of the civil rights laws to homosexuals” (Senator Ford). “This law will not require churches to hire homosexuals” (Senator Bentsen). “If, for instance, the religious tenets of an organization require it to take disciplinary action against a homosexual because of that person’s sexual preference … the Act would not protect the individual” (Senator DeConcini). “Is it true that churches and religious schools will have to hire homosexuals as a result of this bill? No, it is not true” (Senator Levin).

One federal court has concluded that transvestites are protected by federal anti-discrimination law. The court concluded that “while homosexuals are not handicapped it is clear that transvestites are, because many experience strong social rejection in the work place as a result of their mental ailment made blatantly apparent by their cross-dressing life-style.” 150 Blackwell v. United States Department of Treasury, 656 F. Supp. 713 (D.D.C. 1986)This decision ignored testimony in the Congressional Record by the sponsors and co-sponsors of the Civil Rights Restoration Act demonstrating that it was not the intent of Congress to treat transvestites as handicapped. Such testimony will be relevant in future judicial decisions interpreting the term handicapped. But again, it cannot be said with certainty that the courts will not treat transvestites as handicapped, and therefore that churches covered by the Act will not be required to hire transvestites.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold 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. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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