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Will the ministerial exception help protect your Catholic school or college?

Short answer: It depends on you.

Ever since the Supreme Court’s rulings in Hosanna-Tabor (2012) and Our Lady of Guadalupe School (2020), the term “ministerial exception” has become common parlance for Catholic educators. But there is much about the exception that is misunderstood and remains undetermined. Benefitting from this powerful legal protection requires some effort to understand its intricacies.

One thing is certain: the ministerial exception depends on an employee’s real and documented religious duties. When such duties are not obvious to a secular court—as they might otherwise be in the case of a priest, nun, or religious teacher—the determination of an employee’s “ministerial” status may hinge on how clearly and convincingly an employer has defined a position and the strength of the institution’s overall religious identity.

Powerful protection, limited scope

The ministerial exception is not found in any law or regulation.

It is a legal principle derived from the First Amendment’s Free Exercise Clause, which bars government interference in religion. It also follows from the Establishment Clause, which forbids government to select religious leaders or set the criteria for their selection. Therefore, if an employee of a church or religious organization is deemed “ministerial” and sues for employment discrimination, a federal court will simply refuse to hear the case rather than risk unconstitutional entanglement with religion.

According to the Supreme Court in Hosanna-Tabor, federal courts must “ensure that the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.” This is at the heart of America’s “first liberty,” the freedom of religion.

Although the ministerial exception clearly applies to clergy and women religious, in 2020 the Supreme Court affirmed that a Catholic school religion teacher is also a “minister” of the Catholic Church for legal purposes, because teaching the Catholic faith is a sacred duty. The Court considered a number of factors—job title, job description, religious activities, job qualifications, training—none of which, it said, is determinant in itself. Since then, other federal court rulings have applied the ministerial exception to bar claims by school leaders and guidance counselors as well as parish employees.

The ministerial exception is powerful, because it can protect Catholic schools and colleges from lawsuits over abortion, “gender identity,” or “sexual orientation.” It not only protects employers, but it also avoids the cost and publicity of a trial.

It is not, however, a perfect shield for Catholic education. Many legal experts doubt that it applies to every employee, such as support and maintenance staff, but it depends on their religious duties. If even a small portion of employees are not covered by the exception, then a Catholic school or college still needs clear and consistent policies that explain the institution’s religious obligations and help employees understand expectations, so that the institution can avoid lawsuits and claim other religious protections when a suit goes to court.

The ministerial exception depends on an employee’s real and documented religious duties.

The ministerial exception also causes a serious dilemma for Catholic education: it leaves ministerial employees without any recourse to the courts in cases of discrimination based on race, sex, age, etc. A very important task for Catholic dioceses, schools, and colleges will be to ensure fair solutions for employees, such as arbitration—but the arbiter must be familiar with and fully devoted to protecting the mission of Catholic education and upholding Catholic teaching.

Looking for answers

There are still many questions about the ministerial exception that remain unresolved by federal courts, such as:

• Does the exception prevent lawsuits related to all employment issues—hostile workplace, employee benefits, wage and hour policies—or only related to hiring and firing?
• What duties, other than teaching religion, qualify someone as a minister—and what portion of an employee’s job must be devoted to religious activity?
• Does the exception apply only to religion teachers or also to other teachers who are required to integrate the Catholic faith into their courses?
• Does the ministerial exception apply equally to higher education as to elementary and secondary education?
• Does the exception apply to support staff, if they are assigned religious duties and are selected according to religious criteria?

Until these questions are answered, it will be important for Catholic schools and colleges to fight for every inch of protection under the ministerial exception. It would be dangerous to assume the exception’s broad scope until courts have affirmed it, but it would also be self-defeating to accept a narrow reading of the First Amendment.

Meanwhile, even outside these legal considerations, there is a lack of consistency among Catholic educators about the moral and religious responsibilities of teachers and other employees in service to the mission of Catholic education. To help address this concern, The Cardinal Newman Society has just released Policy Standards on Moral Expectations of Employees in Catholic Education, our new recommended standards for employee policies in Catholic schools and colleges.

Recommended practices

To increase the likelihood that courts will apply the ministerial exception to certain school or college employees, consider doing the following:

• Clearly tie employee duties to the Catholic mission of the school or college—not only the formation of students but also evangelization—and to any Church source or document that indicates the ministerial basis for the position.
• Ensure that job descriptions, employee contracts, performance reviews, etc., clearly identify religious duties associated with each employment position.
• Indicate ministerial status in employee titles when possible.
• Job qualifications and training should reflect the ministerial importance and nature of the position.
• Clearly communicate religious duties on job applications, during interviews, and in hiring communications.
• Promote and support ministerial activity through continuing education and training with emphasis on the Catholic mission of the school or college and employees’ religious duties.

These recommendations are drawn from The Cardinal Newman Society’s work with legal experts and our own study of the issue, but we are not legal professionals. Employers should not act without the counsel of an attorney who is familiar with First Amendment law.