Doctrine Briefing: The Ministerial Exception

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In Our Lady of Guadalupe v. Morrissey-Berru (2020), the Supreme Court expanded on the ministerial exception doctrine it outlined in an earlier case, Hosanna-Tabor v. EEOC (2012). The doctrine holds that federal nondiscrimination laws do not apply to religious organizations in their decisions to hire and fire their “ministers.” It is an increasingly relevant rule in First Amendment jurisprudence, one that deserves careful attention and understanding, especially as there are many outstanding questions left by Our Lady that are already being litigated. Joining us to explain the doctrine, and discuss its history and future, is Jones Day attorney Victoria Dorfman, who represented a distinguished group of law professors in an amicus brief in support of Our Lady of Guadalupe School.


Victoria Dorfman, Partner, Jones Day 


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Event Transcript



Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at



Nick Marr:  Welcome, everyone, to this Federalist Society Teleforum conference call as today, March 30, 2020, we're having a "Doctrine Briefing on the Ministerial Exception." I'm Nick Marr, Assistant Director of Practice Groups at The Federalist Society.


      As always, please note that expressions of opinion on today's call are those of our expert.


      We're very pleased to be joined this afternoon by Ms. Victoria Dorfman. She's a Partner at Jones Day and was involved in filing an amicus brief in last year's case, Our Lady of Guadalupe, which expanded this doctrine. It was outlined in an earlier case, Hosanna-Tabor v. EEOC.


      First, we're going to get a background of the doctrine, the ministerial exception. We're going to discuss the current implications of the ongoing litigation and the future of the doctrine. After that, we'll have time for audience questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call.


      With that, thanks for being with us here, Victoria. I'll hand the floor to you.


Victoria Dorfman:  Thank you, Nick. Good afternoon, everyone. As Nick said, I'm Victoria Dorfman, Partner in the Issues and Appeals Group of Jones Day Washington D.C. office. A disclaimer of my own: the views are my own, not of Jones Day.


      Thank you, everyone, for taking the time to join us to talk about the ministerial exception. What is it? It's a constitutional doctrine having origin in the First Amendment's protection of religious autonomy. Religious autonomy is the right of religious institutions to decide for themselves, free of state interference, matters of church government, as well as those of faith and doctrine.


      The ministerial exception is a sub part of religious autonomy and it points towards governing the employment relationship between a religious institution and certain key employees. Furthermore is that it is up to the religious organization to have control over their key personnel who cannot sue them for not hiring them or firing them, etc.


      So this presentation has three parts. First, we are taking a tour into the history of ministerial exception. Second, I'll talk about recent Supreme Court decisions, and third, the issues that are already arising and will likely arise post-Our Lady.


      The Supreme Court issued a seminal decision this past term on Our Lady of Guadalupe. But let's talk first about the history of ministerial exception and religious autonomy. To give you some context about history, in [inaudible 00:02:56] years, I have been counsel of record for a group of professors, the premier experts on the religion clauses, and submitted amicus briefs in courts of appeals and the Supreme Court on ministerial exception issues in support of litigation brought by our outstanding friends and colleagues at the Becket Fund.


      Our brief focused on the history of ministerial exception, and our most extensive foray into this topic was the amicus brief on the merits for Our Lady last term. So a lot of information that I'm going to be discussing here can be found in that brief. Given the format of our teleforum, I'm not going to cite the sources. Rather, I'll tell you about what they say. But you can find the full references to all those events and topics in that brief.


      The principle that the government may not interfere with internal church affairs has long meant, among other things, that religious communities and institutions enjoy meaningful autonomy and independence with respect to their governance, teachings, and doctrines. Quoting Professor Berg, "It's worth emphasizing that the freedom to select religious leaders was a landmark in the development of limited government in the West," and that frequently resulted from a "long and bloody history of conflict" between secular and religious authorities.


      This starts in ancient Rome, moved on to medieval Europe, then to England, and then to the early U.S. experience many of you may be more familiar with. In ancient Rome, religion was an affair of the community as a whole, and there was no form of social life that was wholly secular.


      For instance, the coins used for currency throughout the Roman Empire depicted the image of the emperor on one side and the surgical instruments used for offerings and sacrifices on the other. Religion was simply part of the fabric of Roman life, and the institution distinctions between church and state merged only in the second century during the persecution of Christians in Rome and Carthage.


      Sir Tertullian, an early Christian apologist, was the first in the history of western civilization to use the phrase "freedom of religion." Early Christians recognized a so-called dual loyalty to the church and the state, where by which they would obey the magistrate's principal powers on social matters while recognizing a separate sphere of authority on matters of religion. Secularly, those Christians came to recognize this distinction as good.


Then, in medieval Europe, the conflict arose between the swords of church and state, and this conflict resulted in the so-called Papal Revolution. In 1059, Pope Nicholas II, for the first time, forbade lay investiture, thereby taking the power to appoint the pope away from the emperor.


      Sixteen years later, in the investiture controversy, another pope, Gregory VII, challenged the authority of kings to invest bishops with the symbols of their office on the ground that lay investiture threatened the freedom of the church and inverted the right orderings of church and society.


      The states continued to endure a series of conflicts over the government's intervention in religious decision making. Neither secular nor religious authorities, however, were wholly victorious. Instead, the persistent conflict between them gradually led to a duality of jurisdictions that profoundly influenced the development of western institution of religion.


      In England, perhaps the most famous conflict between secular and religious authorities occurred when Pope Clement VII refused to annul the marriage of King Henry VIII. This incident has been continuing to show up as a fertile ground for books, films, and TV shows, and, as we know from both sources, in response, Henry removed the Church of England from the pope's authority and directed the English clergy to acknowledge the king as the sole protector and supreme head of the English church.


      In 1534, parliament adopted the act of secession, which declared Henry's marriage void and annulled and required the king's subjects to renounce allegiance to any foreign authority or pretention. When Henry's Lord Chancellor, Thomas More, and the Bishop of Rochester, John Fisher, refused [inaudible 00:07:32] allegiance to Rome, they were both executed.


      Nevertheless, by the late sixteenth century, the language of the realms, [inaudible 00:07:41] that the political, had become commonplace. Catholics in England used this language to defend the Roman Church from persecution. Protestants and separatists also involved this language as they struggled to resist the Crown's imposition.


      Despite the pleas for religious liberty from Catholics and dissident Protestants alike, the Crown remained intimately involved in religious covenants. From the time of Queen Elizabeth I, the Crown maintained control of ecclesiastical affairs by ordaining the clergy, issuing licenses to preach, and overseeing the schools.


      After James I took the throne in 1603, he proclaimed that the chiefest of all kingly duties is to settle the affairs of religion. Not surprisingly, religious wars followed. The first of England's religious struggles resulted [inaudible 00:08:36] in the wake of what the victors called the Glorious Revolution of 1618. Trying to justify and secure the fruits of that revolution, John Locke penned his influential "Letter Concerning Toleration," advocating church state separation as the only path toward peace.


According to Locke, and I quote, "It is utterly necessary that we draw a precise boundary line between, one, the affairs of civil government, and two, the affairs of religion." That's John Locke "Toleration" from 1619. Otherwise, there will be "no end to the controversies arising between those who have a concern for men's soul and those who have a care for the commonwealth."


Locke insisted that religious institutions must be free to control their membership and internal affairs. Ideas similar to Locke's found expression in American colonies, such as In the Bloudy Tenent of Persecution for Cause of Conscious" by theologian Roger Williams.


Now moving to the colonies and early United States. As the American states gained independence, the Congress took considerations to endorse the principle of noninterference in internal church governance.


In the early 1780s, the French minister to the United States petitioned Congress to approve a Catholic Bishop for American. In response, Congress passed a resolution instructing Benjamin Franklin, then-ambassador to France, notify the Vatican's representative that "the subject of this application, being purely spiritual, is without the jurisdiction and powers of Congress."


So [inaudible 00:10:23] under established Church of England, the founding generation sought to foreclose the possibility of a national church by forbidding the establishment of religion and encouraging the free exercise thereof. The Religion Clauses ensured that the new federal government would have no role in filling ecclesiastical offices.


This understanding of the Religion Clauses was reflected in two events involving James Madison, the leading architect of the Religion Clauses of the First Amendment. First, after the Louisiana Purchase, John Carroll, the first Roman Catholic bishop in the United States, asked Secretary of State Madison for advice who should be appointed to head the Catholic church in New Orleans. Madison responded that the selection of religious functionaries is entirely ecclesiastical and, thus, the government should not be involved.


Interestingly, Madison subsequently wrote a private letter offering his opinion as a private citizen, but when writing in his official capacity, he declined even to express an opinion on whom Carroll should select.


Second, in 1811, Congress passed a bill incorporating the Protestant Episcopal Church in Alexandria. President Madison vetoed the bill on the grounds that it exceeds the rightful authority to which governments are limited by the essential distinctions between civil and religious functions and violates the Article of the Constitution of the United States, which declares that Congress shall make no law respecting a religious establishment.


Madison explained, and I quote, "The Bill enacts into, and establishes by law, sundry rules and proceedings related purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the minister of the same; so that no change could be made therein, by the particular society, or by the general church of which it is a member, and whose authority it recognizes."


This episode demonstrates that the principle of noninterference extends beyond the appointment of clergy. It broadly forbids government from interfering in the organization polity of the church.


Thomas Jefferson took the same view. In 1804, the government of Orleans Territory wrote to Secretary of State Madison to inform him that the local authorities had shut the doors of the parish church in response to a conflict between two priests concerning who was the rightful leader of the congregation.


Although the governor was pleased with this manner of handling the dispute, Jefferson, who learned about it from Madison, was not. In a letter to Madison, Jefferson wrote, "It was an error in our officer to shut the doors of the church. The priests must resolve their differences in their own way, provided they commit no breach of peace. On our principles all church-discipline is voluntary; and never to be enforced by the public authority."


1804 was a busy year on this topic for Jefferson because, eight days later, he penned another letter, this time in response to a letter from the Ursuline Nuns of New Orleans. In that letter, Jefferson assured the nuns that the Louisiana Purchase and the transfer of control from Catholic France to the United States would not undermine their rights of committing their broad right of self-governance and religious liberty.


As Jefferson explained, and I quote, "The principles of the Constitution are a sure guarantee to you that [your property and rights] will be preserved to you sacred and inviolate, and that your institution will be permitted to govern itself according to its voluntary rules, without interference from the civil authority."


This demonstrates that Jefferson also saw church-state separation as guaranteeing the autonomy, independence, and freedom of religious organizations. Not just churches, but religious schools as well, as his statement affirming institutional autonomy encompasses the freedom of religious schools to select its own leaders.


The disestablishment process in the states further confirms the founding generation's understanding that noninterference is vital to religious liberty. Because the original Bill of Rights did not apply to state governments, roughly half of the states maintained established religions after adjudication of the First Amendment. And disestablishment occurred on a state-by-state basis through adoption of state constitutional amendments, Massachusetts being the last to dismantle its so-called establishments in 1833.


Importantly, each of the states that first maintained an establishment and later adopted a state constitutional amendment prohibiting establishment of religions, adopted at the same time an express provision that all religious societies have an exclusive right to choose their own ministers, and those states included South Carolina, New Hampshire, Connecticut, Maine, and Massachusetts.


And so with this historical background, let's turn to the latest Supreme Court decision.


Our Lady of Guadalupe v. Morrissey-Berru was consolidated with St. James v. Biel, both coming out of the Ninth Circuit. Our Lady is the second ministerial exception case. The first was in 2012, Hosanna-Tabor v. EEOC, where the Supreme Court unanimously held that the First Amendment barred the Court from entertaining an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught.


Justice Alito, joined by Justice Kagan, wrote one of the concurrences, which was featured prominently in Our Lady where Justice Alito wrote for the majority.


Ministerial exception, as you probably know, is a misnomer, and the Supreme Court [inaudible 00:16:25] acknowledged this. And, indeed, all the cases so far at the Supreme Court were about teachers. The ministerial exception has been recognized by lower courts for over 14 years under various terms, reaffirming again and again that religious organizations have control over the hiring and firing of those propagating their faith.


What did the Supreme Court's hold in Our Lady, broadly speaking? It held that the the First Amendment protects the right of religious organizations to decide for themselves, free from state interference, matters of church government, as well as those of faith and doctrine. This is what religious autonomy is, and, as you already can tell, this has been a recurring theme in this presentation.


The ministerial exception is a [inaudible 00:17:15] of religious autonomy and applies towards government employment relationship between religious institutions and certain key employees. Which jobs within an organization are ministerial? Hosanna-Tabor, the first case, laid out four relevant circumstances but did not highlight any as essential. It was title, substance reflected in the title, how plaintiff held herself out, and job duties.


The Ninth Circuit applied the rigid test in requiring that all factors be met. The Supreme Court, in Our Lady, said that this approach produced a distorted analysis and reversed.


The Supreme Court also explained that simply giving an employee the title of minister is not enough. A quintessential example would be someone who performs clearly janitorial duties at a religious establishment and, if he or she is given the title of a minister, chances are he's not going to be considered a minister by courts.


But also having the title of minister, if one actually performs ministerial duties, is not a significant requirement. That is because many religions do not use that title. In fact, religious pluralism in our society was a significant factor both in Justice Alito and Kagan's key concurrence in Hosanna-Tabor and in the focus on the function here.


As Our Lady clarified, their job functions are the key. And I quote, "What matters, at bottom, is what an employee does." And this also comes from Justice Alito and Kagan's concurrence in Hosanna-Tabor.


The examples that the Court gave are educating young people in their faith, inculcating teachings, and training them to live their faith, which is what teachers do, as in the case that the Supreme Court considered.


Other examples are performing vital religious duties, duties of the core of the mission of the institutions or of the very reason for the existence of the institution, individuals holding certain important decisions with religious institutions. And Hosanna-Tabor also said those who preach their beliefs, teach their faith, and carry out their mission.


Justice Sotomayor dissented, joined by late-Justice Ginsberg. They thought that this formulation is very broad and potentially includes all parents of students because they're involved in education. Of course, this is not how courts have interpreted, either before Our Lady nor since.


What are the additional factors that the Court would consider in determining someone is a minister within the ministerial exception? The Court explained that employment agreements and faculty handbooks are relevant, especially about what they say about the duties and evaluations of those employees.


Employees—teachers, for instance, in both cases—were expected to help the schools carry out their religious mission, and teachers were evaluated to ensure that they were fulfilling that responsibility. What does it mean for organizations which want to make sure that certain of its employees are covered by the ministerial exception based on their functions? That means that organizations could benefit from memorializing the employment contract, internal operating documents, and evaluations that an employee performs functions that are essential to carrying out the organization's mission.


Another interesting aspect of Our Lady is that it rejected a co-religionist requirement over defense objection. So, a Hindu teacher performing the same function as Morrissey-Berru did in Our Lady, a Catholic school, would still be covered by the ministerial exception even though she's not a Catholic.


As discussed during the oral argument and in briefing, it would impossible to administer the co-religionist requirement and would actually entangle courts into probing deeply into who the true adherents of various denominations are. For example, is a Reformed Jew the same religion as an Orthodox Jew? Or, are Catholics and Protestants of the same religion because they're all Christian?


Such a requirement would also penalize minority denominations which may have difficulties finding and recruiting people of their own faith to teach in schools.


Another very important and consequential discussion within the various opinions in Our Lady is the level of deference to religious institutions. Clearly, the majority said, there is some deference of institutions on view of the employee's function. I quote, "A religious institution's explanation of the role of such employees in the life of the religion in question is important." And, indeed, that's the key factor out of four.


The majority explained, "In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played every person who performs a particular role in every religious tradition."


Notably, Justice Thomas and Gorsuch concurred. They agreed with that explanation, but their conclusion was that courts should defer to religious organizations' good-faith claims that a certain employee's position is ministerial.


Not surprisingly, the dissent took the opposite view and thought that the courts will be just rubberstamping the religious organization's terminations because function, the most important factor, is for the religious organizations to explain.


The bottom line on this is all agreed that the level of deference is significant. In my view, there is arguably a convergence between the majority and Justice Thomas and Gorsuch concurrence.


The next question is where does ministerial exception apply? It clearly applies in certain lawsuits under the ABA, ADA, Title VII, and similar statutes. We filed an amicus brief, and our side prevailed, in the Third Circuit which applied it in a contract dispute between a church and its former pastor.


Also note that the ministerial exception performs a different function from BFOQ in the 18 Title VII and from Section 702 in Title VII. The anti-discrimination statutes contain provisions allowing religious employers to give preference to members of a particular faith in employing individuals to do work connected with their activities. But this is not what the ministerial exception is about.


As the Supreme Court explained, think of the quintessential case where a church wants to dismiss its minister for poor performance. The church's objection is not that the minister has gone over to some other faith but that the minister is failing to perform essential functions in a satisfactory manner.


Now, the dissent in Our Lady [inaudible 00:24:53] the majority for interpreting the ministerial exception as broadly as it can without regard to the statutory exceptions narrowly tailored to protect religious practice.


Interestingly, Justice Breyer, at the oral argument, questioned why ministerial exception is necessary at all given the various statutory exception. Of course, ministerial exception is based on the Constitution and cannot be substituted by a patchwork of federal and state statutes which can be revised at any time. Ultimately, Justice Breyer joined the majority here.


So how does the ministerial exception [inaudible 00:25:31] doctrinally, and how different is it from typical strict scrutiny inquiry under the First Amendment and the RFRA, for example?


As you all know, under the First Amendment, if a law is neutral and generally applicable, then it is constitutional even if it imposed substantial burden on religious beliefs. Thus, Employment Division v. Smith, but of course, it may be overruled by Fulton currently pending at the Supreme Court. But, under that springboard, if a law has exception, then arguably, the application of that law to religious organizations must satisfy strict scrutiny. That means that the law must be the least-restrictive means of furthering a compelling governmental interest.


This is not how ministerial exception works. On occasion, plaintiffs and some courts try to enforce Smith into those cases. The Supreme Court, and others, have not taken the bait. For example, if a plaintiff claims that he was fired by church because of his disability or sexual orientation or age, that claim will be dismissed altogether once a threshold showing is made that he qualifies as a minister. There is no balancing here, unlike under Smith and RFRA. A religious organization can still [inaudible 00:26:50] the rules if it is determined that is a compelling government interest and the position exercised the provision is accomplished through the least-restrictive means.


We've now come to part three of our talk. What are the issues that are arising post-Our Lady? Let's start with the kind of claims that are covered. First issue is does the ministerial exception apply to hostile work environment claims? Prior to Our Lady, the Tenth Circuit said yes, Ninth Circuit said no, and it seems that the Seventh Circuit agreed with the Tenth Circuit that the ministerial exception could moot such claims.


But then, recently, a divided panel of the Seventh Circuit, in Demkovich v. St. Andrew the Apostle Parish, felt that hostile work environment claims can actually proceed. The Becket Fund petitioned for a hearing en banc, which was granted and heard recently.


That's an interesting case, and I'll tell you a bit about it. There, a parish music director considered that he's a ministerial employee. He first filed the suit based on wrongful termination. The court dismissed it based on ministerial exception.


He then repackaged his claims as based on hostile work environment rather than wrongful termination or some other tangible employment action. The panel held that the ministerial exception did not apply and adopted the rigid categorical distinction between discriminatory employment claims based on hostile work environment and those based on firings or other tangible employment actions.


Because the negations there were actually all speech based, the panel emphasized that the boss of the music director, Reverend Dada, could have chosen to express church doctrine on same-sex marriage or to exercise his [inaudible 00:28:53] powers in non-abusive ways that would not add up to a hostile work environment.


The panel's approach effectively would involve courts in policing how a higher-positioned individual in the church hierarchy expresses himself to a subordinate. In its petition for a hearing en banc, the Becket Fund warned that the panel's decision, if left in place, would eviscerate the ministerial exception by allowing ministers to simply repackage barred discrimination claims as hostile work environment claims.


The idea animating religious autonomy, that religious organizations have control over their ministerial employees, is the same whether it's at the start and end points—hiring and firing—or during their employment.


I filed an amicus brief on behalf of law professors [inaudible 00:29:46] hearing en banc and the oral argument took place in February. They're now awaiting the decision.


The Sixth Circuit is considering the same issue in Middleton where a reverend sued the United Church of Christ over the church's treatment of her while she was employed as an ordained minister responsible for planning nationwide youth events. Once the ministerial exception was raised by the church, plaintiff also re-characterized her claims as hostile work environment and argued successfully in the district court that the ministerial exception does not apply.


In [inaudible 00:30:23] case, the district court applied ministerial exception to hostile work environment claims, and it's gone to an appeal to the Third Circuit.


Secondly, besides hostile work environment claims, what about the ministerial exception and certain torts? Surely everybody can see that religious organizations are not immune from all tort actions, but in certain circumstances, it is misappropriate where, for instance, it is a challenge to ministerial employment decisions or internal church governance.


This is subject to cert petition. In North American Mission Board v. McRaney, the question there is whether the ministerial exception applies only in the context of employment law claims. Or are religious employers protected even when the challenge to a minister's termination is framed as a tort?


The case involves two Southern Baptist organizations who partnered together and shared their faith. A leader of one of the organizations expressed his agreement with how the groups were partnering together. After being removed from his leadership position at one organization, he brought a lawsuit aimed at the other. The lawsuit was framed as a tort action involving claims such as intentional interference with his business relationship and with his previous employment.


Resolving those claims would require courts to scrutinize why a religious employer removed a minister from his position, an inquiry that, by now, should be clearly forbidden under the Supreme Court's ministerial exception cases.


And so there is currently little authority about whether ministerial exceptions extend to torts where there is a causal connection between the allegedly tortious conduct and the termination of ministerial employment.


Before filing a cert petition, the North American Mission Board sought en banc review before the Fifth Circuit, which declined it, though the vote was very close at 9-8 with a couple noteworthy dissents.


Judge James Ho, joined by five judges, wrote, "If religious liberty under our Constitution means anything, it surely means at least as much that the government may not interfere in an internal dispute over who should lead the church — and especially not when the dispute is due to conflicting visions about the growth of the church."


Similarly, Judge Andrew Oldham, joined by four judges, noted in his opinion that this case is raising questions of exceptional importance, including the application of the church autonomy doctrine to certain torts.


So we'll see what Supreme Court does. Interestingly, respondent initially waived its position, but then the Supreme Court requested response to the cert petition and, it's due later in the spring.


Moving on to the procedural aspects. Note that another interesting aspect of ministerial exception is the nature of this protection. In a footnote in Hosanna-Tabor, the Supreme Court said it's an affirmative defense and it's non-jurisdictional. Now, at least several courts of appeal, such as Third, Sixth, and Seventh Circuits, have said that the ministerial exception is structural and that it's not waived if a religious organization fails to raise it. Rather, when district courts raised it sua sponte.


That's because the exception has to function. It protects the church's own right to autonomy with respect to the selection of the individuals who play certain key roles. But, also, the exception is rooted in constitutional limits on judicial authority preventing it from getting embroiled in religious controversies.


Indeed, taking Our Lady opinion at face value about courts not having authority to interfere in internal affairs of religious organizations, it appears to be more than merely an affirmative defense.


The other procedural issue is discovery. Notably, post Hosanna Tabor, courts have appropriately held that ministerial exception issues should be determined before allowing discovery into the merits of the claims. That is because unnecessary merits discovery creates the very type of intrusion that the ministerial exception seeks to avoid.


Courts explained that making discovery process itself is a First Amendment violation. Likewise, courts have forced subpoenas who are being implicated on violated charge upon their rights. That said, some discovery is allowed, such as [inaudible 00:35:06] factual disputes about the ministerial exception itself and, of course, doing merits discovery until the threshold issue is resolved.


Courts have also permitted discovery into other claims that would be unaffected by the ministerial exception. In this sense, the Court's approach is similar to that for discovery related to jurisdictional challenges under Federal Rule of Civil Procedure 5.1.


Since Hosanna-Tabor—and they expect this to continue—courts have treated ministerial exception arguments as suitable for interlocutory appeals under the collateral orders doctrine. As you remember from McCarthy, it permits interlocutory appeal of pre-judgment orders that complicity determine the appealed issue are collateral to the merits of an action and are too important to be denied immediate review and would be effectively unreviewable on appeal from a final judgement.


In the case of ministerial exception, as the Seventh Circuit explained, the First Amendment rule against judicial interference in internal religious affairs was closely akin to official immunity since it conferred "immunity from the travails of a trial and not just from adverse judgement." Thus, "the harm of such governmental intrusion with religious affairs would be irreparable, just as the other type[s] cases in which collateral order doctrine allow interlocutory appeals."


Now, looking beyond ministerial exception, what can be expressed based on the broad language in Our Lady? It also goes beyond internal management decisions. The broad umbrella for what is protected by the Religious Clauses is best seen through the prism of religious autonomy.


As the Supreme Court explained, that includes the right to decide matters of faith and doctrine, matters of church government, work at the core of a religious organization's mission where judicial review of how religious organizations discharge those sensibilities would undermine the organization's independence.


And there are other metrics that are component to religious autonomy. The examples the Supreme Court gives are control of property and appointment and authority of bishops. And, in addition to this precedence, the Supreme Court said, due to the background against which the First Amendment was adopted. And that was the subject of our amicus brief.


If, at the time of the adoption of the First Amendment, some aspect of a religious organization's function was protected from governmental interference, it will also likely be protected today. One example that comes to mind beyond employment litigation or breach of contract litigation is bankruptcy.


For instance, how should courts treat church internal transfers in bankruptcy if a religious organization says that a particular arrangement is an essential part of church government and is dictated by its faith and doctrine?


Another example is abuse litigation against various religious entities. As you know, many dioceses around the country have been sued by plaintiffs alleging abuse by priests, parish, or teachers, or church volunteers and such theories range from intentional torts, such as assault and battery against accused individuals. The theories have responded superior to hold the religious entity self-responsible for those acts of negligent hiring and supervision against religious entities.


So the question is if religious organizations have parishes and affliates which entity is responsible for the misconduct of its employees? Is the diocese responsible for a parish school teacher's misconduct over students?


In connection to that, I'll talk very briefly about another Supreme Court decision, Roman Catholic Archdiocese of San Juan v. Feliciano. It's a per curiam opinion with a notable concurrence and a thought-provoking solicitor general's brief. The case arose when a pension fund for a Catholic school in Puerto Rico stopped making payments. Teachers sued the fund and also the Archdiocese of Puerto Rico and the Catholic Church there.


Puerto Rico courts treated all the Catholic institutions on the entire island—the archdiocese, the dioceses that comprised the dioceses, and the parishes—as one legal entity, and the court ordered nearly $5 million in assets to be seized from the churches to pay the pensions.


The Supreme Court held that Puerto Rico courts lacked jurisdiction to enter certain orders. But as far as Justices Alito and Thomas's concurrence that spoke about the incorrect interpretations by Puerto Rico courts [inaudible 00:40:04] the Catholic Church there was a single entity. More importantly, about deference to religious organizations' own understanding of their structure. If you recall, deference was simply a much-debated topic within the opinions in Our Lady.


That is relevant, for example, to whether a diocese is liable for various entities that are also associated with and the conduct of employees of those entities.


Do note, however, that the solicitor general's amicus brief on that case points out the obvious exceptions to corporate separateness, such as agency, joint-and-several liability, veil-piercing. It's not clear in the current case law how those interact with a religious organization's own understanding of its structure.


The key issue widely litigated in this domain is to what extent those exceptions to corporate separateness override the religious organization's own understanding of its structure. The decision in Our Lady may have impact on that, both because it mandates some deference and because it tells courts to respect and not interfere in matters of church government.


Of course, Fulton v. Philadelphia may also bear on this issue as it may overrule Employment Division v. Smith and neutral principles line of jurisprudence.


And so in sum, there are many issues that will be impacted by these decisions beyond those that were obviously at stake in Our Lady.


That's it for my presentation, and I'm happy to take any questions.


Nick Marr:  Thanks so much, Victoria. Seeing no questions right now, Victoria. I'll go ahead and ask the first one while people are lining up.


      Could you talk a little bit about the interaction between this doctrine, the ministerial exception, and the unconstitutional conditions doctrine? Perhaps in the realm of school choice, parental choice, things like that?


Victoria Dorfman:  Well, they both, obviously, have to do with the First Amendment Religious Clauses, but I'm not sure there is necessarily a direct overlap between the two. To the extent that both, at bottom, depend on recognition of religious autonomy, and so they both come, more or less, from the same source.


      But I think the ministerial exception has been used by courts more about control over personnel rather than the questions that are raised in unconstitutional conditions.


Nick Marr:  Okay. Yeah, just a question that's come up. So, Victoria, we don't have any questions right now. We might wrap up a bit early, but maybe -- if you wanted to add anything that you didn't cover, or you mentioned the Fulton case at the end. That'll be an important case ruling coming out of this term. I don't know if you want to expand on that a little bit.


Victoria Dorfman:  Well, the issue in Fulton, one of the issues in Fulton, is whether Employment Division v. Smith should be overruled. That case has come under much fire from all directions and various justices and courts because the interpretation of what it really means—that if a law is neutral and generally applicable—has confused the various circuits and state courts in a variety of ways.


      Based on the oral argument, it's not entirely clear that the Court will reach that issue. There are other grounds on which the Court may rule, but I strongly suspect that once the Supreme Court recognize that Smith may not be the best way to approach many of the First Amendment Religious Clause questions, that it will eventually take up some case that will present it in a clean manner.


Because, again, Smith has created so much confusion in courts, and there is no consistency as to how courts evaluate various statutory or regulatory frameworks that have certain types of exceptions for secular organizations or for certain religious organizations, and it needs to be resolved in a different manner.


Nick Marr:  In the meantime, we've gotten two audience question, so we'll go to our first one.


Caller 1:  Hi, Victoria. Thank you so much for this presentation. One of things I was curious for your thoughts on was -- in Justice Alito's concurrence in Hosanna-Tabor, he emphasizes the importance of not getting hung up on the label "minister" in ministerial exception. And then he kind of takes it another step in the Our Lady opinion where he calls it the "so-called ministerial exception." Can you talk to us a little bit about why that's so important, and what he's trying to communicate with that?


Victoria Dorfman:  Well, thank you for joining us and for this excellent question. As I mentioned in the presentation, what Justice Alito and the Supreme Court is recognizing is the amazing diversity of religious experiences in the United States.


      Whereas minister is a commonly understood term in certain Christian denominations, it has no equivalency as one particular title in many religious traditions in the United States. One of the things—I don't remember which brief pointed it out; I think Becket Fund's brief on the merits—is a rabbi, for instance, typically is thought as similar to minister, but in reality, just means a teacher.


      During the debate in the Supreme Court in Our Lady as to whether teachers qualify—well, in some religious traditions, being a teacher is more or less viewed the same as being a minister. That's the important part. That's why one needs to focus on the functions of what an employee does—whether he or she is transmitting the faith, teaching the faith, within that tradition.


      It also addresses the concern that I think many have about organizations just giving people a title, such as minister, that has absolutely nothing to do with their functions and thereby trying to avoid the reach of various anti-discrimination laws or other restrictions.


      I really do think that the approach of the Supreme Court focusing on function takes into account and reflects the realities of American religious tradition and the current diversity of what's presented in the United States.


Nick Marr:  Thank you very much. Now we'll go to our next question. Okay, caller, go right ahead with your question.


Caller 2:  Thank you. Given that this ministerial exception doctrine arises out of the First Amendment, is it fair to say that state courts are bound by the procedural aspects of the Supreme Court doctrine? What I mean by that is do state courts have to treat it as an affirmative defense and not jurisdictional? Do they have to ban discovery? Do they have to allow an interlocutory appeal, and so on? All those nuances that derive from the Supreme Court precedent that may or may not apply to state courts?


Victoria Dorfman:  Thank you. That's a great question. First, to be clear, the only thing the Supreme Court has said explicitly about the procedural aspect is that it's an affirmative defense; it's not jurisdictional, and that's Hosanna-Tabor footnote. Courts have interpreted that, both before and after Hosanna-Tabor, have interpreted the ministerial exception to bar, as we discussed, certain discovery, allowing interlocutory appeals, etc.


And yet, I believe that is correct; that state courts are bound to interpret their own procedural rules in such a way as not to run afoul of the First Amendment. It can manifest itself in a variety of ways, as we discussed, whether it's in discovery or appeals or being able to raise ministerial exceptions sua sponte rather than waiting for parties to give [inaudible 00:49:22] rights.


Yes, I believe that's correct.


Caller 2: Yeah, thank you.


Victoria Dorfman:  Thank you.


Nick Marr:  Okay. We don't have any questions in the queue right now. With that, seeing about eight minutes left in our time today, Victoria, I'll offer you the chance for closing remarks. If a question comes up, I'll let you know.


Victoria Dorfman:  I just wanted to say thanks again for The Federalist Society for the opportunity to talk about this important issue, and also special thanks to my friends and colleagues at the Becket Fund since they have litigated and are litigating those ministerial exception cases together for many years now and trying to ensure that courts come out the correct way, consistent with the history and the understanding of the First Amendment.


      Thanks, everyone, for your attention and your questions.


Nick Marr:  Thanks very much, Victoria. On behalf of The Federalist Society, I want to thank you for the benefit of your valuable time and expertise this afternoon. Also, thank you to our audience for calling in, your good questions.


      As a reminder, we welcome your feedback by email at Also, be keeping an eye on your emails and our website for announcements about upcoming teleforum calls. We've got some coverage this week of Supreme Court oral arguments, so be sure to check out on our website when we're having those.


      Thank you all for joining us today. Until the next one, we are adjourned.




Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at