Some of my research on religious language has taken me into the rather tricky area of First Amendment rights granted to certain employers by the Supreme Court on the grounds of freedom of religious expression. These employers, granted the status of religious order, are given by law exceptions to the principle of equality in the constitution, free to set their own employment criteria and enjoy tax exemptions.
The exception to the principle of equality which provides religious employers in the USA with the most latitude to apply employment criteria of their choosing is the so-called, ‘ministerial exception.’ The ministerial exception is not laid down in legislation but is, rather, a judicial creation …Cannon, Catriona Morag MacRae (2018) Freedom of religious association: The case for a principled approach to the employment equality exceptions. PhD thesis. University of Glasgow
It was feared that if ecclesiastical matters became the domain of the state, the church would lose the ability to deal with matters of church government and administration itself, and the ‘wall of separation’ between church and state required by the first amendment would be violated.
This doctrine of ‘church autonomy’ inherent in the first amendment was later held by the courts to apply to the appointment of clergy and to other personnel choices, thus rendering decisions pertaining to such appointments immune from court scrutiny.
Some religious employers granted these rights through the courts have (perhaps unsurprisingly) abused them. I saw this firsthand during my research on a case involving Greenville Presbyterian Theological Seminary, who fired an elderly professor on the grounds he had not managed his home well (not requiring his chronically ill and disabled wife to attend church).
Other religious orders have exercised their rights in similar ways. In 1976, the Salvation Army cited their religious order status to avoid answering for alleged sex discrimination in employment (McClure v Salvation Army). And more recently in 2012, the US Supreme Court affirmed the use of the ministerial exception in a disability discrimination complaint. This case was brought by an employee of Hosanna Tabor Evangelical Lutheran School who was fired after absence due to narcolepsy.
In light of these and other cases, the hire packet for Cru (formerly known as Campus Crusade), one of the largest religious orders in the world, is particularly troubling.
In this document, Cru positions itself as a church in order to justify their disciplinary procedures, citing the two-fold sacred authority of a particular interpretation of “the teachings of the New Testament on church governance,” alongside the Committee of Discipline, which may modify Cru’s disciplinary procedures “any time and for any reason.” This is a powerfully strategic invocation of the sacred authority of the Bible, since the religious entity exemption does not permit discrimination on any ground other than religion.
As the document makes clear, these procedures allow Cru to “sever ties with anyone who is not teachable or is uncooperative.” What do these violations look like? The hire packet does not explain these fully, a worrying sign.
The absolute authority of this committee and the precarity of staff members is also evident in the next page in this Hire Packet, which specifies that only members of Cru staff can be involved in a disciplinary process. In other words, staff cannot seek outside counsel.
After five pages outlining Cru’s disciplinary process, the Hire Packet next contains a Confidentiality and Non-Disclosure Agreement which must be signed and returned to Human Resources. There, Cru makes clear that even discussing information about Cru not known generally to the public, for any purpose other than job responsibility, is grounds for termination of employment.
In my opinion, cases such as those I’ve mentioned above and documents like Cru’s Hire Pack reveal that religious orders are at times using their US constitutional exemptions, as interpreted by the courts, to harm their employees, and they are citing religious authority as justification.
However, abuse of religious exemptions is gaining the attention of the US Supreme Court. In 2007, US courts responded to the Catholic sex abuse scandal by calling for public release of confidential chancery files, challenging the promise of privacy at the heart of the free exercise of religion.
It seems that if religious orders and orgs do not clean up their act, the religious freedom they enjoy will be further eroded. The just and reasonable exercise of rights such as ministerial exception will be lost due to repeated abuse and discrimination.