The ministerial exemption is a legal doctrine in the U.S. intended to protect the freedom of religion by exempting religious institutions from anti-discrimination laws and protecting government from having to become entangled in internal religious affairs.
It was first applied when women sought to sue the Catholic Church for the right to become ministers, according to attorney Aaron Aizenberg. “The law says you don’t have the right to sue if you work for a religious employer,” he said.
Aizenberg was referring to a 2012 U.S. Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, in which the court ruled for the first time that the First Amendment requires a “ministerial exception” that allows religious employers to discriminate against their employees without any court review.
But at least one state, Minnesota, has allowed a sexual harassment complaint by a female cleric to proceed to trial. The case was brought by a junior female pastor against her superior minister. Her attorney, Gerald T. Laurie, told The Jewish Week that in allowing the trial, the state’s Court of Appeals said “she did not leave her civil rights on the church steps.”
She lost her case but Laurie said, “We won the war,” referring to the fact that the case went to trial. A New York attorney, Barry Black, said he would be willing to try a sexual harassment case for a woman rabbi, believing “sexual harassment should not be a protected right. It would mean you have a right to do a wrong.”
He pointed to an 1872 ruling in which the U.S. Supreme Court wrote: “In this country the full and free right to entertain any religious belief … which does not violate the laws of morality and property, and which does not infringe on personal rights, is conceded to all.”
The Reform movement’s Central Conference of American Rabbis’ CEO, Rabbi Steve Fox, said he too would support a woman rabbi who wanted to bring a sexual harassment suit.