If You’re a Minister and You Know It, Clap Your Hands: Contract Nondiscrimination Clauses as a Voluntary Waiver of the Ministerial Exception

Looking back, I’m not sure if I ever had any employment protections or whether I was, legally, a minister. Yes, I was a “secular studies” teacher, but I also led lower-school tefillah after lunch two days a week. I was expected to plan and lead lessons every month for our character development (tikkun middot) curriculum, which included values like “Torah,” “faith,” “joy,” and “gratitude.” On Fridays, I had to sit at a table with students and celebrate an early Shabbat—we’d light candles, cover our eyes, sing prayers, and pass around a loaf of challah. I folded Jewish and Israeli history into our curriculum, painstakingly pulling passages from the Torah and prophets to lay side-by-side with excerpts from Gilgamesh, or Assyrian relief sculptures, or the Qur’an, or whatever else we were studying.

I was a gentile teacher of secular history, but I was also expected to be invested in the building of Jewish community and Jewish citizens—and I was. Under the test expanded and articulated by the Supreme Court in 2020,  I would have been a close case. I don’t know what my school would have argued. I don’t know how a court would have ruled. And I’m someone with an expensive legal education who is supposed to know my professional status under the law.

So how was Agnes Morrissey-Berru, an elementary teacher at Our Lady of Guadalupe School in Hermosa Beach, California, expected to know?

Lay readers of a contract tend to believe the text to be enforceable and binding, even when it is not.  They believe contract language. Imagine Morrissey-Berru’s confusion, then, when the plain text of her contract turned out to be a lie.

Morrissey-Berru’s contract listed the circumstances under which she could be fired: She was subject to a six-month probationary period and, later, could be fired immediately for cause or with thirty-days’ notice without cause.  That is not language that would lead a person to believe that they have no legally cognizable employment claims at all. Moreover, her contract directed her to the faculty handbook,  and that handbook promised, “Employment decisions will not be made on the basis of race, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, pregnancy, veteran status or political affiliation.”  The handbook included a standard reference to the fact that religious institutions are exempt from the Title VII provision barring discrimination on the basis of religion,  but it did not mention or suggest that the school believed it could discriminate against her for nonreligious reasons and on the basis of the other listed characteristics. 

When Morrissey-Berru filed suit against the school for age-based discrimination, however, the school argued just that. It said that courts were forbidden from enforcing antidiscrimination law to interfere in the school’s relationship with its teachers, and the Supreme Court agreed.  In Our Lady of Guadalupe School v. Morrissey-Berru, the Court reaffirmed and broadened the constitutional right of religious employers to hire and fire ministers without state intervention. Whatever Ms. Morrisey-Berru believed about her employment protections based on what she read in her contract and handbook, the Court found that she was a minister in a religious enterprise. She therefore had no protections.

The ministerial exception to employment-discrimination law is rooted in the First Amendment rights of religious organizations to be free from state interference in matters of faith, doctrine, and church governance. This Note begins from the presumption that the exemption is good law and plays a necessary role in First Amendment jurisprudence. It does not seek to overturn the exemption, either directly or through bad-faith efforts to narrow the exemption beyond all recognition. Rather, this Note confronts a market failure—and a failure of fairness. Many employees affected by the exception have no way of knowing that their employer views them as a minister and that this view, if vindicated in court, will limit their legal rights. Thus, the goal of this Note is to identify a legal mechanism that can ensure disclosure and clarity in any written employment agreements exchanged at the time of contract formation.

That mechanism is the waiver of constitutional rights. This Note argues that where religious establishments have employee handbooks that (1) would otherwise qualify as binding contracts;  (2) clearly state that employees are protected against certain forms of employment discrimination; and (3) do not clearly state that certain employees are excepted from these protections, such handbook provisions should be construed by courts as waivers of the right to be excepted from antidiscrimination law.

This approach would fully respect religious establishments’ constitutional rights, would align with Supreme Court precedent, and would not require the judiciary to render decisions on any matter of religious doctrine. It would also, however, protect the interests of employees who may have reasonably relied on representations of nondiscrimination made when they accepted employment. Part I of this Note summarizes the current state of ministerial exception law. Part II summarizes the law of waiver of constitutional rights. Part III argues that the doctrine of waiver of constitutional rights should apply to the ministerial exception, and that handbook provisions of the kind described above satisfy the requirements of waiver.