The Supreme Court has repeatedly affirmed the existence of the so-called “ministerial exception” religious organizations’ constitutionally based immunity from employment discrimination suits brought by their ministers but declined to provide a clear test for which employees count as “ministers.” The Court’s reticence is frustrating but understandable. A narrow definition might wrongfully burden or interfere with religion generally, privilege some religions over others, or increase friction in a society riven by ethical disagreements. A broad definition might privilege religious over non-religious employers or facilitate evasion of generally applicable law, contrary to compelling public policies and the vital interests of many individual employees.
Drawing on employment-law scholarship, this Article recommends a legal strategy often adopted in secular contexts to reconcile desirable employer autonomy with competing individual interests and public goals: targeted disclosure. The Article proposes that courts adopt this “information-forcing” rule: When a religious organization gives a purported “minister” adequate pre-hire notice of her ministerial status, that notice should create a legal presumption of ministerial status. The plaintiff then bears the burden of showing that she is not a minister. This approach incentivizes religious employers to inform employees of the risks they bear in accepting employment and creates an occasion for stakeholders to contest the religious organization’s governance practices. Such contestation might, without unconstitutional overreach by the government, promote self-directed reform that narrows the gap between the religious employer’s self-governance and the goals of public policy.
