Reforming the Ministerial Exception

The ministerial exception is a constitutional law doctrine designed to protect the First Amendment right of religious groups to shape their community and define their beliefs. However, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the 2012 Supreme Court decision that recognized this doctrine, did so by adopting a shotgun approach to the problem: a per se rule that bars a wide variety of lawsuits by ministers against their religious employers. This categorical approach bulldozed important employment law protections for religious employees and created an irreconcilable conflict with a wide swath of constitutional doctrines that apply a more nuanced balancing test. This Article argues that the Court should reform the ministerial exception to incorporate a constitutional balancing test. The proposed reform recognizes that the government has compelling reasons to protect ministers from abusive behavior by their employers. In addition, rules of procedure and evidence can narrowly tailor litigation to protect the constitutional interests of religious employers. Reforming the ministerial exception in this way better accommodates the competing constitutional interests of religious groups and their employees and restores order to constitutional doctrine.