A 2020 Recap
While 2020 in many ways has been grim, that is not so for the topic we cover here. The year reflected, if not really a resurgence of, then at least a heartening stabilization in, the government's respect for and commitment to protect religious rights.
The U.S. Supreme Court earns most of the credit for that trend. The Court has increasingly embraced the First Amendment rights of religious groups to be treated fairly, not just benignly. While no one can predict how a new Supreme Court justice's legal philosophy will ripen, odds are that the addition of Justice Barrett, a conservative Catholic jurist, will
contribute to Court rulings that will level out the playing field for ministries. In contrast, the late Justice Ginsberg criticized the Court's "zeal to secure religious rights to the nth degree" and believed that any number of state interests could outweigh those rights, particular in the context of employment disputes.
The most important Court decisions in this context were, of course, those that broadly defined the ministerial exception, coming some eight years after the Court first recognized that legal doctrine in the Hosanna-Tabor case. The Court also curtailed state legislative efforts to discriminate against religious institutions in school funding programs based solely on their faith-focused mission. And, even as the Court held that Title VII's ban on
"sex" discrimination in employment also prohibited discrimination based on sexual orientation—a holding of concern to faith-based organizations that hold traditional views of sexual morality and marriage—it acknowledged the overriding rights of religious employers. The Court noted that the Religious Freedom Restoration Act operates as "a kind of super statute" that can displace discrimination claims in appropriate contexts. The Court added: "We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society."
Congress also deserves some credit. In its immediate response to the COVID-19 pandemic, Congress passed generous
paycheck protection and paid sick leave measures. Congress made no effort to exclude faith-based employers. Religious mission or not, employers received equal government largess to deal with the pandemic.
Finally, the Trump Administration's priorities deserve recognition. The Administration supported religious liberty in high-profile court cases, issued Executive Orders protecting employers' religious liberty rights, and promulgated many agency rules with that same goal.
One of the President's first Executive Orders, E.O. 13798 (“Promoting Free Speech and Religious Liberty”) announced "the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom." Early in 2020, the White House followed up with additional guidance stating that federal agency rules or grant terms that disqualify a religious organization from a right to compete for a public benefit because of the organization's religious character violate the Constitution's Free Exercise Clause, unless the rules or terms are the least restrictive means of achieving a compelling government interest. In January 2020, the U.S. Secretary of Labor initiated rulemaking to bar discrimination against religious organizations in DOL programs. More recently, in May, the Secretary followed through with guidance implementing E.O. 13978 that stressed the need for fair treatment of ministry employers and specifically stated that "a religious organization does not forfeit its exemption from the Federal prohibition on employment discrimination on the basis of religion when the organization receives direct or indirect DOL support."
Furthermore, the EEOC just proposed updated guidance on religious discrimination provisions of its Compliance Manual. While the guidance focuses mainly on protecting employees from religious discrimination by employers, it also includes a detailed discussion of the ministerial exception. The guidance views the ministerial exception broadly: "The ministerial exception is not just a personal right of religious institutions, but a structural guarantee that obligates the government and the courts to refrain from interfering or entangling itself with religion. As such, the ministerial exception is not waivable and is a threshold issue, which should be resolved at the earliest possible stage before reaching the underlying discrimination claim."
And, just this month, the Office of
Federal Contract Compliance Programs published a final rule discussing the exemption for religious employers in federal contracting. This rule is "intended to correct any misperception that religious organizations are disfavored in government contracting by setting forth appropriate protections for their autonomy to hire employees who will further their religious missions."
All in all, good news for ministry employers in an otherwise very difficult year.
This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.