The ministerial exception is a legal doctrine protecting the critical First Amendment right of religious organizations to choose their ministers.  Despite the Supreme Court’s unanimous affirmation of this rule as recently as 2012, the Ninth Circuit federal appellate court has released two opinions in the past year seriously eroding the exemption.

Now, the Supreme Court has two chances to ensure that this core principle is protected.

In the 2012 case Hosanna Tabor, the Supreme Court unanimously upheld the ministerial exception.  Ministers play a central role in spreading the beliefs of churches and other religious organization. To allow the court to usurp the role of determining who should serve as a minister would pose a grave danger to the integrity of church autonomy. In his concurrence, Justice Thomas further underscored the importance of church autonomy in this area, writing that “[a] religious organization’s right to choose its ministers would be hollow…if secular courts could second-guess the organization’s sincere determination that a given employee is a ‘minister’ under the organization’s theological tenets.”

Central to the holding of Hosanna Tabor is the idea that religious organizations need not assert a religious reason for declining to have someone serve as a minister. The Court ruled that they would not look into a religious organization’s justifications for whether or not to hire or retain a minister, reasoning that this would infringe on something within the exclusive province of the church. To do so, according to the Supreme Court, is to “miss[] the point of the ministerial exception.” 

Vital to the protection of the ministerial exception is preserving the discretion of churches in determining who may teach or administer their faith. Because of this, the ministerial exception protects not only the removal of ministers for religious reasons, but also for secular and prudential reasons. Employment decisions of ministers are recognized as necessarily free from government scrutiny.

By contrast, in the two cases seeking Supreme Court review, the Ninth Circuit decided that courts can interfere in internal church decisions, scrutinizing the roles of employees of various religious organizations and analyzing whether they deemed the employee’s role in spreading the faith as religious enough to qualify as a minister.

One of these decisions even held that a court-determined significant religious role need not suffice to make someone a minister under the exception. It is hard to imagine a way in which the concerns which the Establishment Clause sought to protect against could be more starkly attacked than in this context.

Biel v. St. James School concerns a fifth-grade teacher entrusted with working “‘within [St. James’s] overriding commitment’ to Church ‘doctrines, laws, and norms’” and whose role included a duty to “‘model, teach, and promote behavior in conformity to the teaching of the Roman Catholic Church.’” The teacher taught religion four days a week and attended Mass with her students. Yet, the court decided that this did not suffice for the ministerial exception to protect the school’s decision not to retain her.

Similarly, in Morrissey-Berru v. Our Lady of Guadalupe School, a case decided in light of the holding in Biel v. St. James School, the court determined that the ministerial exception did not cover a fifth-grade teacher’s position. The Court conceded that the teacher “did have significant religious responsibilities” and acknowledged her commitment “to incorporate Catholic values and teachings into her curriculum” in addition to leading “her students in daily prayer” and “liturgy planning for a monthly Mass,” among other roles involving faith formation.

These holdings embody a dangerous break with the Constitutional protection of religious organizations from government interference with their autonomy.  By allowing the courts to “second guess” a religious organization’s decisions regarding ministers, religious organizations’ ability to internally govern and set its structure is impeded.

The Supreme Court has held before that the decision of who is a minister ought to be that of a church and its members, not that of the courts.  Now the Court has two opportunities to send a clear message to the lower courts – stay out of the church’s business.

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Suzanne Beecher is Associate Counsel to First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Read more at