​The U.S. Supreme Court has made clear that the U.S. Constitution protects a religious organization’s choice of employees who will represent them in promulgating their teachings. This is referred to as the ministerial exception.

A recent decision of the U.S. Court of Appeals for the Fourth Circuit (the region that covers Maryland, Virginia, West Virginia, North Carolina and South Carolina) applies this principle to a dispute between a former teacher and a Catholic high school in North Carolina. The teacher was fired – after announcing plans to marry a same-sex partner – for “engaging in conduct contrary to the moral teachings of the Catholic faith.”

The teacher sued, arguing that his firing was illegal – a form of sex discrimination prohibited by Title VII of the federal civil rights law.

The trial court ruled for the teacher. Interestingly, the school had declined to invoke the ministerial exception – perhaps because at the time the suit was filed, that principle had never been applied to an employee who was not specifically labeled a minister.

Thus, when the court of appeals considered the case, it did not necessarily need to address the exception, but it chose to do so. The court reasoned that the exception was “grounded” in the structure of the Constitution. It “does not protect the church alone; it also confines the state and its civil courts to their proper roles.” Since the principle “plays an important role in limiting courts to their proper sphere,” the court determined that it should apply the exception, thus “staying in [its] proper lane.”

Since the teacher “played a vital role as a messenger of” the school’s faith, the court determined that “he falls under the ministerial exception to Title VII.”  The court ordered the trial court to rule in favor of the school.

Court protection of the right of religious organizations to determine who will represent them is important, but it would be helpful to have more legislative attention to this important right. When legislatures act to protect rights, they can sometimes prevent costly litigation (the North Carolina case began in 2017). Legislative protections also can enhance social acceptance of a right since legislation requires consensus.

Title VII of the Civil Rights Act does include a religious exemption, as do many state discrimination laws. The federal exemption provides that it does not apply “to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

Virginia’s law is the same. Texas’ exemption has a similar approach: “A religious corporation, association, society, or educational institution or an educational organization operated, supervised, or controlled in whole or in substantial part by a religious corporation, association, or society does not commit an unlawful employment practice by limiting employment or giving a preference to members of the same religion.”

These exemptions are appropriate, of course, but the North Carolina litigation shows that they are not always sufficient. An employee of a religious organization may be a member of that religion but may want to endorse in word or action a message at odds with the organization’s mission. Religious organizations should also be able to make mission-aligned employment decisions that involve employees who can help their mission, even if they are not members.

Utah’s statute is more helpful in this regard. It specifies that the type of employers covered by the discrimination law does not include “a religious organization, a religious corporation sole, a religious association, a religious society, a religious educational institution, or a religious leader, when that individual is acting in the capacity of a religious leader; any corporation or association constituting an affiliate, a wholly owned subsidiary, or an agency of any religious organization, religious corporation sole, religious association, or religious society.”

This careful exemption precludes litigation over religious employment without requiring courts to assess whether a particular employee is sufficiently “ministerial” to invoke constitutional protection of the employer’s ability to convey its message and operate according to its mission.

Avoiding conflicts should be the hallmark of legislative efforts to protect religious freedom. The role of courts is essential, of course, but cannot be the exclusive route for ensuring people of faith and religious organizations can act consistent with their religious missions.