Religious Hiring and Church Autonomy
Can a religious group legally fire a non-minister employee (like a secretary or janitor) for violating the group’s beliefs about sex or marriage? As I’ve explained, this is an urgent question likely to reach the Supreme Court soon. And the most straightforward answer is to apply the plain text of Title VII’s religious exemption—which says religious groups may limit employment to individuals who adhere to their particular religious beliefs, observances, or practices.
But Title VII’s religious exemption won’t resolve the question entirely. That’s because employees can sue under state law, and some states have recently gutted their state-law religious exemptions. Thus, as I explain in my article, Religious Hiring Beyond the Ministerial Exception, courts will eventually have to decide if religious hiring decisions are also protected by the Constitution.
My article analyzes three potential constitutional protections: (1) the church-autonomy doctrine, (2) the freedom of expressive association, and (3) the Free Exercise Clause. Today, I’ll focus on the first: church autonomy.
The Scope of Church Autonomy
Church autonomy is a hot topic. Multiple appellate judges have gone out of their way to write about it. Justices Alito and Thomas have, too. What is it?
The church-autonomy doctrine is a legal principle rooted in “the understanding that church and state are ‘two rightful authorities,’ each supreme in its own sphere.” While this doesn’t mean religious institutions are immune from civil laws, it does mean the First Amendment protects a certain sphere of autonomy in which the government is not permitted to intrude. This sphere is often described as encompassing the right of religious institutions to “decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”
The protection for “faith” and “doctrine” means civil courts cannot decide religious questions or make legal decisions based on religious doctrine.
The protection for “church government” means religious institutions have freedom to make and enforce rules for their internal governance. This includes deciding who can lead a religious organization, teach its doctrine, and perform its religious functions, all of which are protected under the ministerial exception. But the ministerial exception is only one “component” of protection for church government. Also protected are other “internal management decisions that are essential to the institution’s central mission,” such as decisions about “church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.”
The right to make and enforce rules for church membership is particularly longstanding and robust. Since 1872, the Supreme Court has held that civil courts “have no power to revise or question ordinary acts of church discipline, or of excision from membership.” This means religious groups get to set qualifications for church membership and judge “the conformity of the members of the church to the standard of morals required of them.” It also
Article from Reason.com
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