Religious freedom is increasingly invoked to defeat liability for behavior that has long been regulated under accepted, neutral law, an argument to which many courts and judges appear receptive. One such area of law seeing this activity is the ministerial exception-a judicial principle recognized under the First Amendment. The ministerial exception guarantees religious organizations' discretion in how they select their "ministers,"or religious employees dedicated to the organization's religious mission. However, current law lacks clarity regarding the application of the exception to an organization's treatment of its ministers. Recently, the Seventh Circuit, sitting en banc, chose to categorically expand the application of the ministerial exception to workplace harassment claims; in essence, ruling that ministers could expect little protection from the law against harassment in the workplace. This Comment evaluates the Seventh Circuit's categorical expansion of the ministerial exception to workplace harassment claims and compares it to the "balancing approach" the court initially adopted, which would evaluate case-by-case whether a workplace harassment claim implicated too many protected religious concerns to proceed. This Comment argues that the balancing approach better conforms to the First Amendment's scope of religious protections. First, it allows suits unconcerned with any significant religious issues to proceed. Second, it avoids the risk of excessive entanglement or protracted scrutiny of religious practice. Finally, this Comment concludes that the categorical expansion of the ministerial exception resembles recent opinions which have endorsed interpretations of the First Amendment that would allow actors to frustrate constitutionally legitimate regulations of commercial behavior, suggesting a new form of Lochner-era jurisprudence may be on the move.
Separation of Church and Law: The Ministerial Exception in Demkovich v. St. Andrew the Apostle Parish,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol94/iss4/7