To Avoid Civil Rights Laws Pretend Receptionists Are Ministers

A manual co-authored by a commission of the Southern Baptist Convention and a leading anti-gay legal organization warns of an apocalyptic future for conservative religious groups opposed to equal rights for LGBT Americans.

“[D]isputes about what constitute a healthy vision for marriage and sexuality,” writes Russell Moore, the president of the Convention’s Ethics and Religious Liberty Commission, “have resulted in the cultural harassment, intimidation, and even legal punishment for those whose consciences are held captive to the Scripture’s teaching on God’s purpose for marriage and sexuality.” The manual’s introduction warns that “no ministry will remain immune if they remain true to Scripture’s teachings about sexuality and gender,” and the manual itself is peppered with stories of anti-gay business owners and other individuals who were subject to legal sanction by what the manual refers to as “SOGIs” — laws preventing discrimination on the basis of sexual orientation or gender identity.

Yet the manual also brings tidings of great joy to religious organizations that wish to deny equal rights to LGBT individuals. The bulk of the manual consists of legal advice for churches, Christian-identified schools and ministries that want to maximize their ability to discriminate. The manual, which is entitled Protecting Your Ministry From Sexual Orientation Gender Identity [sic] Lawsuits, offers advice on topics ranging from how churches should establish a “formal membership policy” to how schools should design their admissions procedures to introduce “circuit breakers” that are “designed to interrupt or terminate the admissions process if the school receives an application evidencing a lifestyle or belief system inconsistent with the school’s religious beliefs or mission.”

The manual’s boldest advice, however, are instructions that seek to immunize religious employers from literally any civil rights lawsuit brought by a fired employee.

In its 2012 decision in Hosanna-Tabor Evangelical v. EEOC, the Supreme Court recognized a “ministerial exception” to anti-discrimination laws. This holding was not, in and of itself, particularly controversial. Prior to the Hosanna-Tabor decision, every single federal appeals court to consider the question had held that some sort of ministerial exception is required by the Constitution, and there are strong arguments for applying such an exception to legitimate ministers of a faith. As the Court explained in Hosanna-Tabor, “[t]he members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.

The hard question presented by cases like Hosanna-Tabor, however, is determining which employees qualify as a “minister,” and therefore are not able to invoke the protection of anti-discrimination law if they are fired. Churches and other religious employers typically employ numerous lay people in roles ranging from groundskeepers to accountants, and these non-ministers are fully entitled to invoke civil rights laws if they face discrimination in the workplace.

Nevertheless, the Protecting Your Ministry manual instructs religious employers to layer religious duties on top of each of their employees’ actual job descriptions in an effort to convince courts that every single one of these employees qualifies as a minister:

According to the manual, “[e]mployees with some duties usually performed by (or associated with) clergy are more likely to be viewed as ‘minister-like’ by the courts. Consequently, courts are more likely to apply the ministerial exception to employment law claims based on alleged discrimination” against these employees. In essence, the manual advises that an employer can take a janitor, require them to lead the staff in prayer every so often, and POOF! the janitor is now a “minister” and the employer is free to fire that janitor because they are black, because they are gay, or because they are a woman.

This is an unusually aggressive reading of Hosanna-Tabor. Though the justices held that “the ministerial exception is not limited to the head of a religious congregation,” they also suggested that a bona fide minister must do more than lead an occasional prayer in order to fit within the ministerial exception to civil rights law. The employee at issue in Hosanna-Tabor, for example, was a teacher at a religious school, Cheryl Perich, who had significant religious training and official religious duties.

“To be eligible to become a commissioned minister,” the Court explained, Perich “had to complete eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher.” She had to “obtain the endorsement of her local Synod district” through an application process that required her to submit “her academic transcripts, letters of recommendation, personal statement, and written answers to various ministry-related questions.” And she had to complete an oral examination presided over by faculty from a Lutheran college. It took Perich six years to complete these requirements.

In her job as a teacher, moreover, Perich “taught her students religion four days a week, and led them in prayer three times a day. Once a week, she took her students to a school-wide chapel service, and—about twice a year—she took her turn leading it, choosing the liturgy, selecting the hymns, and delivering a short message based on verses from the Bible. During her last year of teaching, Perich also led her fourth graders in a brief devotional exercise each morning.”

Unlike a receptionist who sometimes answers “basic questions about the church’s faith,” in other words, Perich had considerable religious education and had passed an exam administered by authorities within her faith. And, while her role as a teacher also included significant secular duties, religious education was still a major component of her job.

There was also no evidence that Perich’s employer gave her these duties in order to trick the courts into exempting her from civil rights laws.

Indeed, the most surprising aspect of the Protecting Your Ministry manual may not be the fact that it pushes such an aggressive effort to neutralize anti-discrimination laws. The most surprising thing about the manual is that it is available online in a place where any lay person, civil rights lawyer, or reporter for a progressive news outlet can download it. Judges typically do not look kindly upon litigants who try to game the law by assigning superfluous duties to their employees in an effort to fool the courts into believing those employees are something that they are not. And employers who follow the manual’s advice may find themselves in hot water once opposing counsel introduces the manual’s advice for employers seeking to cirvent civil rights law into evidence.

It’s also worth noting that, while a committee of the Southern Baptist Convention co-authored the manual, they shared authorship with the Alliance Defending Freedom, an anti-gay legal group with close ties to several evangelical ministries. For this reason, it is likely that the manual’s advice will reach beyond the Southern Baptist community and be implemented by employers of other faiths who do not wish to comply with anti-discrimination law. Attorneys who bring suit against these employers may also introduce the manual as evidence that a religious employer’s so-called minister is really just a janitor.

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