Church Autonomy, Religious Leaders, and Non-Minister Employees
- Author(s):
- Lael Weinberger
- Posted:
- 10-2026
- Law & Economics #:
- 26-19
- Availability:
- Full text (most recent) on SSRN
ABSTRACT:
The ministerial exception has gotten a lot of attention in recent years. The Supreme Court’s decision in Hosanna-Tabor (2012) made clear that the ministerial exception provided extensive protection for religious institutions’ decisions about hiring or firing religious leadership. With broad protections, the stakes are high, and the question of who counts as a minister has been hotly litigated. But are ministers the only employees of religious institutions who get First Amendment protections? That issue has come to the fore in multiple current cases. This has revealed sharply differing perspectives about the relationship of the ministerial exception to its broader First Amendment context.
The Supreme Court has said that the ministerial exception is part of a broader First Amendment doctrine, “church autonomy.” Some scholars and litigators have argued that church autonomy doctrine is too broad, that the ministerial exception already protects too much, and that it certainly should not be extended. Others defend the ministerial exception but believe that the ministerial exception is the only path for protecting religious institutions' employment decisions, and that any employees who are not also ministers fall outside the scope of church autonomy.
This Article argues that the ministerial exception is an appropriate application of church autonomy doctrine but not the only way in which church autonomy speaks to the employment relationship. The ministerial exception is special in ways that are commensurate with its function: safeguarding religious institutions’ selection of those playing leadership and related roles. But limiting the application of church autonomy to ministers alone will have differential effects across religious traditions, advantaging some and disadvantaging others. A broader theory of First Amendment church autonomy for employment will recognize a place for the ministerial exception, with its appropriately distinctive characteristics. It will also recognize that not all employees with religious roles and hired for religious reasons need count as ministers, that these non-ministers may trigger application of church autonomy, and at the same time ought not all receive the maximalist protections provided under the ministerial exception. The ministerial exception does not exhaust the implications of church autonomy for employment matters in religious institutions. In the process, this Article clarifies the ways in which church autonomy matters for employment and how the ministerial exception is distinctive.