By: Shelly Aviv Yeini
The Ministerial Exception (ME) is a legal doctrine providing that antidiscrimination employment laws do not apply to the relationship between religious institutions and their ministers. Such a notion appears in various democracies, as it aims to confront a shared problem: the attempt to solve the clash between antidiscrimination employment laws and religious autonomy. Liberal democracies strive to protect employees from discrimination, as well as to accommodate freedom of religion, which cannot be fulfilled without the existence of religious organizations. While being able to choose their staff is at the heart of the existence of religious institutions, the fulfillment of such freedom often discriminates against workers on the basis of religion, gender, sexual identity, and so forth.
For many years, the legal outcome of the ME led to quite similar results with distinct shared principles across different countries. However, the latest judgment of Our Lady of Guadalupe School v. Morrissey-Berru combined with the judgment of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission has created an American version of the ME that shifts the balance of antidiscrimination labor laws and religious autonomy to bluntly favor religious autonomy. This article suggests that such a shift and new distance from the universal conception of the ME may be the result of an unfinished picture in American law— American ME doctrine needs to be completed in a manner that will connect the missing piece between Our Lady of Guadalupe and Hosanna-Tabor to create a well-balanced model of American ME.