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Abstract

Employees enjoy protections under federal anti-discrimination statutes from adverse employment action or retaliation against them based on protected classes, such as disability, race, sex, and religion. Title VII of the Civil Rights Act prevents discrimination in employment based on race, color, sex, national origin, or religion.1 It also creates an exemption for religious institutions to discriminate in employment based on religion.2 Unlike Title VII, other anti-discrimination statutes do not carry this religious exemption.3 As a result, courts have created methods for determining whether a religious institution is exempt from these statutes. One such way is the “ministerial exception” fashioned out of the First Amendment’s Free Exercise clause.4 The purpose of the ministerial exception is to bar any claim whose resolution would limit a religious institution’s right to select who will perform particular spiritual functions.5 However, judicial definitions of a minister have become cloudy.6 The Supreme Court’s decision in Our Lady of Guadalupe School v. Morrissey-Berru further muddied this definition.7 Rather than use factors introduced in a previous case with similar facts,8 the Court created a new, extremely broad test.9 The result stripped nearly two million employees at religious institutions from the protection of anti-discrimination employment statutes,10 creating inconsistent and unintended results.11 The Court should review this doctrine to create a bright line rule for employees, religious institutions, and courts to use.

This Article will give background on America’s religious roots and legal precedent leading up to the creation of the ministerial exception. It will then analyze Our Lady itself. The Court should interpret Our Lady so that it is more consistent with Hosanna-Tabor by focusing only on (1) training and (2) job functions to establish a bright line rule for courts to follow and produce more equitable results for employees that result in actual adjudication of issues. Finally, this article describes how courts have used the exception since Our Lady, and looming issues arising from this exception.

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