The Expansive Scope of the Ministerial Exception After Our Lady of Guadalupe School v. Morrissey-Berru

Abstract

On July 8th, 2020, the United States Supreme Court held in Our Lady of Guadalupe School v. Morrissey-Berru that two parochial school teachers, Kristen Biel and Agnes-Morrissey-Berru, were ministers for purposes of the First Amendment’s ministerial exception. This meant that the First Amendment barred their respective employment discrimination actions notwithstanding the merit of their claims. When the Court first recognized the ministerial exception in 2012, in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, it determined that an employee qualified as a minister through a multi-factor, totality of the circumstances analysis. Yet, in reaching its conclusion in Our Lady of Guadalupe School, the Court focused predominantly on one factor—whether the employees performed religious functions. This Comment argues that the Court’s sole focus on religious function has significantly expanded the scope of the ministerial exception, such that more employees of more religious institutions are likely to qualify as ministers and thus lose their federal antidiscrimination employment protections. Given the policy interests at stake, courts applying the ministerial exception after Our Lady of Guadalupe School should recognize that a broad reading invites exploitation and interpret the opinion in its narrowest form.