By Christopher Morillo
The “ministerial exception” is a First Amendment shield for religious institutions facing employment-related lawsuits. The Catholic Church, for example, might invoke the exception if sued by a woman barred from joining the priesthood on account of her sex. In recent years, however, the Supreme Court has “vertically” expanded the scope of the exception down the hierarchy of a religious institution, holding that it bars actions brought not only by traditional “ministers,” but also by teachers and other employees at religious schools—many of whom do not hold religious office or formally preach to students. This Note argues that this vertical expansion (i.e., the broadened conception of “minister”) warrants a “horizontal” restriction on the types of claims that the exception bars. Namely, whistleblower actions should not be categorically barred by the now-bloated ministerial exception. As the law stands, over a hundred thousand secular teachers are left in a precarious double bind in which they must act as mandatory reporters for child abuse and yet lack protection from any consequent retaliation for whistleblowing.
Part I of this Note provides an overview of the ministerial exception and its recent expansion, including how lower courts have been handling whistleblower claims. Part II theorizes that the broadening of the ministerial exception, and the underlying First Amendment right of church autonomy, should trigger a proportionality approach that constrains the exception based on competing government interests. Part III applies this proportionality approach in the context of whistleblower cases, arguing that whistleblower actions are distinct from other applications of the ministerial exception in the way they implicate third parties—often children—and with respect to the unique societal interests in protecting those third parties.