Employment Law for Ministries


The Religious Freedom Restoration Act and Employment Law

The U.S. Supreme Court's ruling last year in Bostock v. Clayton County that sex discrimination under Title VII of the Civil Rights Act extends to sexual orientation discrimination set up a potentially explosive clash between LGBTQ advocates and certain religious communities. Arguments were made in the case that complying with Title VII could require some employers to violate their religious convictions, and the Court in response expressed its commitment to "preserving the promise of the free exercise of religion enshrined in our Constitution." (See our June 2020 newsletter for further details on the decision in Bostock.)

The Court went on to note that "worries about how Title VII may intersect with religious liberties are nothing new" and referenced existing protections for employers, including First Amendment protections such as the ministerial exception. The Court also observed: "Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993" (RFRA), which "operates as a kind of super statute, displacing the normal operation of other federal law." How, though, does RFRA apply in legal disputes between religious groups and their employees?


RFRA was a congressional response to a 1990 Supreme Court ruling that shifted the balance of free-exercise-of-religion protections away from individual rights in favor of government interests. In that ruling, the Court had held that one’s religious beliefs do not excuse him from complying with laws of general applicability—i.e., if a state generally denies unemployment benefits to workers who lose their jobs due to drug use, the state may do so even if the drug use was part of a religious experience.

RFRA restored the two-part test the Court had traditionally used to balance individual rights and federal government actions. That test, which the Court had applied in a number of cases, was substantially similar to the language Congress used in RFRA: "Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." RFRA protects any exercise of religion, "whether or not compelled by, or central to, a system of religious belief.”

Although 1993 is not ancient history, a notable shift has occurred in the intervening years  regarding the recognition of LGBTQ "rights." Back then, RFRA passed the Senate by a vote of 97-3. In the House, the sponsor of the legislation was now-Senator Schumer, and the bill easily passed with a simple voice vote. It is unlikely that the law would pass today—and far less likely that Senator Schumer would sponsor it. More recent attempts by state legislatures to enact state-level RFRA protections faced strong protests that those laws would permit religious beliefs to be used as a sword in trampling LGBTQ rights.

RFRA may be used to support a claim against the federal government and may also be used as a defense to federal government action. An individual or entity must show that the government has "substantially" burdened the exercise of religion. Courts have not been entirely clear on when the government substantially burdens one’s exercise of religion. Some focus on the extent of the actual impairment of a religious practice; accordingly, a slight violation of a religious practice might not meet the definition. Others argue that the focus should be not on the extent of the violation but on the degree of pressure the government exerts.

Application to Employment Disputes

RFRA is not limited to employment matters but has played a role in that legal context. For example, RFRA was cited in support of numerous federal agency actions and issuances during the Trump Administration that were intended to protect religious liberty. Agencies are obligated to apply and enforce federal law in accordance with RFRA, and they have cited RFRA in defense of exceptions in federal contracting and other arenas for religious organizations. (See our December 2020 and January 2021 newsletters for additional details on agency activities.) Notably, these administrative determinations and actions directly involve the federal government on the one hand and individuals or entities on the other.

In some types of employment litigation, the federal government is likewise directly involved as a party. This may be the case, for example, where the EEOC brings an action against a private employer for a violation of a law administered by the EEOC.

But the federal government is not a party in the vast majority of employment disputes, which typically involve an employee or group of employees and the employer. Most courts have held that RFRA simply does not apply in litigation between private parties. These courts have reasoned that RFRA only limits actions taken by the federal government. Accordingly, under those decisions, RFRA would not bar an employee’s discrimination lawsuit against a ministry employer because the lawsuit does not involve an action against the employer by the federal government. In that respect, the Supreme Court’s statement in the Bostock case that RFRA could "supersede Title VII’s commands in appropriate cases" rings a bit hollow.

Because the ministerial exception and RFRA alike protect religious liberty, why is the former available to employers defending lawsuits filed by individuals while RFRA probably is not? The ministerial exception applies because the First Amendment prevents courts, as an arm of the government, from applying the law in a way that infringes on a party’s free exercise rights. In contrast, RFRA is a creation of Congress, and it applies only to the extent Congress intended it to. The courts have found that the text of RFRA indicates that Congress did not intend the statute to apply to disputes between private parties.

RFRA and Employee Benefits

RFRA also protects religious freedom in the employee benefits arena. Here, the clash is typically between laws mandating health care coverage for various medical procedures and religious groups  theologically opposed to those procedures. Most recently, for example, a federal court in North Dakota held that the Patient Protection and Affordable Care Act (ACA), which prohibits any federally funded or administered health program or activity from engaging in discrimination, could not be applied to require a Catholic organization to provide insurance coverage for gender-transition procedures. Doing so would burden the organization’s sincerely held religious beliefs while not serving a compelling government interest in the least restrictive way possible.

Similarly, the Supreme Court held last year in Little Sisters of the Poor v. Pennsylvania that the Department of Health and Human Services (HHS) and other agencies had the authority to establish religious and moral objections to ACA preventative care requirements. While the Court did not decide whether RFRA compelled HHS to carve out religious exemptions, it did indicate that the ACA’s mandates were "capable of violating RFRA" and that it was therefore "unsurprising" that RFRA would feature prominently in agency deliberations.

While our focus here is on ministry employers, RFRA also protects privately held, for-profit businesses that are not controlled by religious organizations. That was the ruling of the 2014 Supreme Court decision in Burwell v. Hobby Lobby. There, the leaders of several for-profit companies held sincere religious beliefs that life begins at conception and that complying with government regulations mandating that employee welfare plans cover certain types of contraceptive care violated those beliefs. The Court held that RFRA by its terms covers incorporated entities and that such entities can, in fact, "exercise religion," because business practices compelled or limited by the tenets of a religious doctrine are forms of religious exercise.

If you have any questions about RFRA, please contact us.

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.