In my previous post I discussed the moral acceptability of the ministerial exception. I now turn to the matter of the legitimate extent of this exception. This discussion assumes, solely for the sake of the argument, that the exception is morally acceptable and the main concern is defining what counts as a “religious employee.” This matter is important because the ministerial exception in United States law allows for religious employers to fire religious employees and not be subject to the usual anti-discrimination laws. To be clear, in this context being religious does not mean simply having faith. Rather, a religious employer is one that is defined by a religious function, such as a church. A religious employee is one that is, presumably, hired to perform a job that has religious components. A clear example of this would be being a priest or minister.
The specific case that motivated my discussion of the issue is that of Emily Herx, who claims that she was fired because of her using in vitro fertilization. Her former employer, the Catholic Church, claims that they have the right to fire employees who violate the religious doctrines of the Catholic Church. Herx’s attorney has contended that the church violated the Civil Rights Act and the Americans with Disabilities Act.
In order to legitimately use the ministerial exception rule, the person who is fired must be a religious employee (in the sense defined above) and s/he must be fired for violating the religious doctrines of the religious employer (as defined above). In this specific case, it is clear that Herx violated church doctrine of her employer, which is clearly a religious institution. The Catholic Church officially opposes IVF on numerous grounds, but most especially on the fact that it can result in the destruction of “extra” fertilized embryos. Whether or not someone violates doctrine is general a straightforward factual matter, although there can be exceptions (after all doctrines can be vague, ambiguous and otherwise problematic). As noted above, it is being assumed that religious institutions have the moral right to fire religious employees based on matters of doctrine. Whether or not this is actually the case was discussed previously.
The main point of concern is, of course, what counts as being a religious employee. There is also the specific concern of whether or not Herx should be considered a religious employee.
To begin with the easy and obvious cases, people who are employed in jobs that serve clear and obvious religious roles and functions within the religious parts of the religious institution itself would be religious employees. To use an obvious example, the pope, bishops, priests, ministers, monks, rabbis, and so on would all be religious employees. In such cases, religion is central to the jobs and defines the primary responsibilities and roles of said jobs. People occupying these jobs would thus be paradigm cases of religious employees. Given the centrality and importance of these roles, it would thus seem reasonable to expect that those occupying them would be following the religious doctrines. So, for example, if a priest was engaged in sexual relations with young men and thus violating church doctrine, it would be morally reasonable for the Catholic Church to fire him.
As might be imagined, things begin to get a bit fuzzy when one moves away from these paradigm cases. For example, an organist who is paid to play the organ in a church for services is involved in the religious rituals to the degree that s/he provides the organ music. However, it is not clear that s/he would be a religious employee. After all, the role of playing an organ does not seem to be inherently religious nor does it seem to specifically require a religious person. After all, music played by an atheist cannot be discerned by that played by a theist (or even a computer playing the organ). As another example, consider a janitor who cleans a church. While s/he is cleaning a church, it would be somewhat odd to consider the janitor a religious employee. After all, cleaning the church is not a religious function nor does it seem to require a specific faith. To use an analogy, the person who cleans the professors’ offices at a university is not performing an academic function nor does this task seem to require holding an academic degree in the fields corresponding to the departments of the offices the janitor is cleaning. The same would also seem to hold true for the majority of employees who perform non-religious tasks such as accounting, maintenance and so on.
Religious institutions are not just limited to explicitly religious edifices such as churches. After all, religious institutions also include schools, hospitals and so on under their auspices. In these cases, the lack of religious roles seems clearly evident. For example, a doctor at a hospital owned by the Catholic Church is a doctor and her job requires medical rather than theological skills. It would thus be odd to say that a doctor would be a religious employee. Likewise for the nurses, ambulance drivers, janitors and so on.
It might be contended that religious affiliated schools, such as the school were Herx taught, provide a special context in which teachers are religious employees. However, the obvious counter is that they would be religious employees only to the degree that their core job functions are religious in nature. As such, someone teaching church doctrine (and not merely religion classes) could be seen as a religious employee. However, those teaching all other subjects (such as math or English) would seem to not have religion as part of their core job function and hence would not be religious employees. Going back to my janitor analogy, a janitor who works at a university would not thus be an academic employee with academic duties. Likewise, a teacher who just teaches math at a religious school would have math duties but not religious duties (as a math teacher).
There is also the fact that in the United States religiously affiliated schools and institutions routinely hire people not of their faith to fill various jobs. For example, a Catholic hospital might have a Methodist doctor, a Jewish nurse, an Episcopalian lawyer and perhaps even an atheist accountant. As such it would seem somewhat odd to say that these employees are religious employees whose job functions are religious in nature merely because they work for a hospital affiliated with the Catholic Church.
It could be objected that employees of religious institutions are involved with the religion and thus are religious employees. For example, it could be argued that teachers at Catholic schools (even if they are not Catholic) have among their duties the teaching of Catholic doctrine and conveying Catholic values. As such, they are religious employees even if their actual job is to teach mathematics or English literature. Naturally, if the teaching duties specify a religious function that is relevant to the job, then this could be reasonable grounds for considering the employee a religious employee. However, most such jobs would seem to have no direct religious role and hence the employees would not be religious employees. For example, requiring a calculus teacher to teach Catholic doctrine in calculus class would be rather odd.
It could be countered that religious institutions are such that every employee is a religious employee. To use an analogy, every employee of the state is thus a state employee. As such, religious institutions can fire people with impunity as long as they can justify it by an appeal to religious doctrine.
While this might be appealing to some, that view seems unjustifiably broad. After all, the intent of the ministerial exception is to allow exception for specific religious jobs on the basis of religious liberty. To take every employee as a religious employee is to simply grant religious institutions a free pass to ignore anti-discrimination laws in a way that is unwarranted. After all, this would be using a rule intended to grant a limited exception for religious liberty to allow the violation of rights and liberties broadly on no better basis than the employee was not conforming to the doctrines of the church. While, as noted above, this would be reasonable for priests it seems unwarranted in the case of janitors, doctors, math teachers and so on.
From both a legal and a moral standpoint it seems rather critical for there to be a clear and reasonable definition of “religious employee.” Without such a definition, it is all to easy to violate the rights of employees under the guise of protecting religious liberty.