Nicholas Hatzis (University of Oxford) has posted The Church-Clergy Relationship and Anti-Discrimination Law. The abstract follows.
Should antidiscrimination norms apply to the relationship between a religious group and its clergy? In Hosanna-Tabor Evangelical Lutheran Church v EEOC the US Supreme Court affirmed the existence of a “ministerial exception” which bars discrimination claims by ministers of religion against their church. In 2005 the House of Lords had reached the opposite conclusion, ruling, in Percy v Board of National Mission of the Church of Scotland, that the decision to dismiss an ordained minister was not a spiritual matter falling outside the scope of secular law. This article examines the constitutional foundations of the ministerial exception, argues that Percy ignored important aspects of church autonomy and suggests that courts should consider creating a narrowly tailored rule exempting decisions to appoint or remove clergy from the scope of anti-discrimination law.