Buffalo Law Review

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Some employees who hold significant positions within some religious organizations fall outside the protections of certain laws, especially employment discrimination laws. But which employees, which organizations, and which laws? In its 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court reaffirmed the “ministerial exception” doctrine, a constitutional immunity that is “extraordinarily potent” where applicable.1 The doctrine exempts religious employers from liability for nearly all forms of discrimination, some torts, and some breaches of contract, even when an employer does not act for religious reasons.

This Article argues that Our Lady of Guadalupe School marks a new stage in the exception’s gradual expansion. Parts I and II demarcate the doctrine’s boundaries where they are clear, particularly for educators who teach religion. Analyzing the Court’s two ministerial exception decisions and the lower-court cases that have applied them, Part III identifies where gaps in the Court’s analysis have enabled courts to expand the exception still further. This expansion has occurred along three intersecting lines: who qualifies as a minister, what claims the exception bars, and which employers may invoke the exception. As the doctrine develops, the conditions of employment for hundreds of thousands of employees of religiously affiliated organizations hang in the balance.

Part IV offers a policy proposal. Until the Court cabins the ministerial exception within clearer boundaries, religious institutions should voluntarily notify each employee regarding whether the institution considers the employee’s position to fall within the exception. This practice, which aligns with the social ethics of major U.S. religious groups, would provide clarity throughout the employment relationship, streamline litigation, and enable employers who are willing to waive the exception to compete for discerning employees.