Religious Exemptions, and
Reciprocal Lessons from
America and Australia
Paul T. Babie
The recent Supreme Court decision in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel (‘Morrissey-Berru’) has prompted a great deal of debate about the space made for freedom of religion or belief in anti-discrimination or equality legislation. The relevant space typically takes the form of an exemption or exception which allows a religious organization to discriminate, or violate a broadly based equality principle otherwise established by the legislation, if doing so is necessary for the purposes of furthering religious liberty or freedom. Such discrimination most frequently occurs in the employment context, with the religious organization claiming that it must discriminate against some candidates when it hires employees to undertake certain roles. The best example of this, of course, is the employment of a minister of religion. This “ministerial exception” formed the basis of the claim dealt with by the Supreme Court in Morrissey-Berru.
While the debate around the space made for religious freedom in anti-discrimination legislation has been strongest in the United States, many other nations have similar legislation. This short essay compares the Australian position with the American, and suggests two lessons: one, which emerges from the Australian law, and the other from the American experience.
The American ministerial exception1See generally, The Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test, 121 Harv. L. Rev. 1776 (2008); Amy Dygert, Reconciling the Ministerial Exception and Title VII: Clarifying the Employer’s Burden for the Ministerial Exception, 58 Wash. U. J. L. & Pol’y 367 (2019). has its origins in Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.2142 U.S.C. §§ 2000e to 2000e-17 (2000), § 2000e-2(a). While religious employers can prefer members of their own faith, they might nonetheless be liable for discrimination on any of the protected classifications.3 Id. § 2000e-1(a). See Rayburn v. Gen. Conference of Seventh-day Adventists, 772 F.2d 1164, 1166–67 (4th Cir. 1985). In employing religious leaders, however, a religious employer might engage in conduct which, if undertaken by any other employer, constitute prohibited discrimination. As a result, Title VII created a conflict between its protected classifications and the Free Exercise Clause. In 1972, the 5th Circuit identified the need for a ministerial exception to Title VII so as to protect the free exercise of a religious employer seeking to employ a minister.4 McClure v. Salvation Army, 460 F.2d 553, 558 (5th Cir. 1972). In the years since, eight circuits have adopted the ministerial exception.5See Janet S. Belcove-Shalin, Ministerial Exception and Title VII Claims: Case Law Grid Analysis, 2 Nev. L.J. 86 (2002).
The Fourth Circuit was the first to extend the ministerial exception beyond the scope of an ordained minister of religion.6 Rayburn v. Gen. Conference of Seventh-day Adventists, 772 F.2d 1164 (4th Cir. 1985). Using the primary duties test — whether “the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship”7Id. at 1169 (quoting Bruce N. Bagni, Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organizations, 79 Colum. L. Rev. 1514, 1545 (1979)). — the exception can now be used to shield discriminatory employment practices in a range of positions classed as ministerial,8Rayburn v. Gen. Conference of Seventh-day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985). such as a press secretary9See Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 704 (7th Cir. 2003). or a choir director.10 See Starkman v. Evans, 198 F.3d 173, 177 (5th Cir. 1999). In two cases, the Supreme Court extended the exception to teachers: Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission11Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012). and Our Lady of Guadalupe School v. Morrissey-Berru.12Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___ (2020).
Hosanna-Tabor established that a party claiming the exception must demonstrate that (i) the “job title as a minister [must] reflect a significant degree of religious training followed by a formal commissioning”; (ii) the employee “held herself out as a minister of the Church by accepting the formal call to religious service, according to its terms”; and, (iii) “job duties reflect a role in conveying the Church’s message and carrying out its mission.”13Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 Still, in Morrissey-Berru, Alito J suggested that a court need not “apply a “rigid formula”, concluding that “[w]hat matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”14Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___ (2020). Morrissey-Berru involved a teacher who, “[l]ike all teachers in the Archdiocese of Los Angeles,” was “‘considered a catechist,’ i.e., ‘a teacher of religio[n].’”15Id.
In Australia, the federal and state governments have enacted legislative regimes which prohibit discrimination on religious and other enumerated grounds.16See Racial Discrimination Act 1975 (Cth); Sex Discrimination Act 1984 (Cth); Disability Discrimination Act 1992 (Cth); Age Discrimination Act 2004 (Cth) (together, these four pieces of legislation are known as federal discrimination law). The state and territory legislation protections are found in: Discrimination Act 1991 (ACT); Anti-Discrimination Act 1996 (NT); Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (QLD); Equal Opportunity Act 1984 (SA); Anti-Discrimination Act 1998 (Tas); Equal Opportunity Act 2010 (Vic); Equal Opportunity Act 1984 (WA). Unlike their U.S. counterpart, however, the Australian schemes contain a broad, legislatively established, exemption for religious employers who seek to discriminate so as to give preference to members of the relevant faith. Thus, in the federal legislation, religious bodies and schools may discriminate in the appointment of clergy and staff and in “any other act or practice . . . that conforms to the doctrines, tenets or beliefs of that religion” or which is “necessary to avoid injury to the religious susceptibilities of adherents of that religion.”17Sex Discrimination Act 1984 (Cth) s 37(d); Age Discrimination Act 2004 (Cth) s 35. The state legislation is similar.18See, e.g., Equal Opportunity Act 2010 (Vic), ss 82-84.
The source of these exemptions may be loosely traced to the protection of freedom of religion found in section 116 of the Australian Constitution. This provision does not, however, apply to the states, which may act with impunity in limiting freedom of religion. And, in any case, unlike the American ministerial exception, the courts have never been forced to construct an exemption from the relevant legislation and constitutional protections. Instead, in both the federal and the state legislation, as noted above, the exemption is legislatively established and applied by the courts as written. Judges, then, are faced not with the need to create, but to interpret.
This leaves to the courts the task of determining the scope of application of the legislatively proscribed exemption, which usually resolves itself into the meaning to be applied to the legislative terms, “conforming to the doctrines, tenets or beliefs” of a religion “necessary to avoid injury to religious sensitivities.” Unlike the extensive litigation surrounding the American ministerial exception, no Australian decisions provide explicit guidance in the application of the legislative exemption to the ministerial employment scenario. Indeed, only two cases — the New South Wales Court of Appeal decision in OV and OW v Members of The Board of Wesley Mission Council (‘Wesley Mission’)19OV and OW v Members of The Board of Wesley Mission Council (2010) 79 NSWLR 606 (Austl.). and the Victorian Court of Appeal case of Christian Youth Camps Ltd v Cobaw Community Health (‘Cobaw’)20Christian Youth Camps Ltd v Cobaw Community Health (2014) 50 VR 256 (Austl.). — consider the operation of the exemption in any setting. These cases, therefore, provide general guidance as to the judicial approach to the exemptions, no matter the context.
Wesley Mission involved the refusal, purely on the basis of sexual orientation, of the Wesley Mission to allow a same-sex couple to be foster carers. In deciding the case, the Court of Appeal was called upon to determine whether Wesley Mission’s discriminatory conduct conformed to a doctrine or tenet of its religion.21Anti-Discrimination Act 1977 (NSW) s 56(d). To do so, the Court held that an assessment of a religion involves two related questions: “who established the body?” and “to propagate what religion”?22OV and OW v Members of The Board of Wesley Mission Council (2010) 79 NSWLR 606,  (Austl.).The Court wrote that “usually one would expect the body to be, or to be established by, a church, to propagate the system of religious beliefs to which members of that church adhere.”23Id. Thus, a “religion”, for the purposes of an exemption to the equality principle could include a discrete set of beliefs. And the court extended the meaning of “doctrine” from formal pronouncements from church authority to include “particular moral or religious principles taught or advocated”.24OW v Members of The Board of the Wesley Mission Council  NSWADT 293,  (Austl.).
Cobaw involved a claim that Christian Youth Camps (CYC) discriminated against Cobaw pursuant to the Equal Opportunity Act 1995 (Vic) by rejecting a booking request to use a campsite to run a suicide prevention camp for same-sex attracted youth. A number of grounds were raised on appeal, and while the Court of Appeal found that discrimination had been established, it concluded that the facts did not support the operation of the religious exemption.25Christian Youth Camps Ltd v Cobaw Community Health Service Ltd (2014) 50 VR 256, , ,  (Austl.). In obiter, however, made it clear that they were willing to consider CYC doctrine to ensure that its actions “conform[ed] with the doctrines of the…religion.”26Christian Youth Camps Ltd v Cobaw Community Health Service Ltd (2014) 50 VR 256, , see also - (Austl.). Moreover, the court, adopting language of the Tribunal which decided the case at first instance, defined “doctrine” as “creeds or declarations of faith.”27Christian Youth Camps Ltd v Cobaw Community Health Service Ltd (2014) 50 VR 256,  (Austl.) quoting Cobaw Community Health Services Limited v Christian Youth Camps Limited  VCAT 1613 (8 October 2010), -. As such, it could consider the “the core architectural statements of faith, or the body of teachings that describes the fundamental shape of that form of religious belief.”28Cobaw Community Health Services Limited v Christian Youth Camps Limited  VCAT 1613 (8 October 2010), .
I draw two lessons from this brief comparison of the anti-discrimination or equality provisions found in American and Australian law. The first is found in the Australian experience. Wesley Mission and Cobaw reveal that the words “conform” and “necessary” found in most Australian legislative exemptions require a court to consider evidence concerning the content of a religion. And the courts have shown that they are willing to engage in this exercise when asked to do so. Rather than leaving it entirely to the party claiming the benefit of the exemption, judges examine the core architectural statements of faith themselves in order to determine whether the party claiming an exemption “conforms with the doctrines, beliefs or principles of the religion” or that discrimination is “reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.”29As found in the Equal Opportunity Act 2010 (Vic), s 82(2)(a) and (b). The wisdom of leaving this work to judges is not something that concerns me here. Instead, I want to point out that religious organizations may want to consider that in claiming an exemption to shield discriminatory conduct, it may very well invite an unwanted degree of scrutiny as part of evaluating whether it “practices what it preaches.”
This ought to be no minor concern to those who would seek the protection of the American ministerial exception. Of course, in respect of Free Exercise claims, American courts have traditionally rejected an extensive inquiry into whether a religious belief is sincerely held. In Cambridge Christian Sch. v. Fla. High Sch. Athletic Ass’n, the Eleventh Circuit summaries this reticence: “[w]hat constitutes a ‘sincerely held belief’ is not a probing inquiry, and ‘courts have rightly shied away from attempting to gauge how central a sincerely held belief is to the believer’s religion.’”30Cambridge Christian Sch. v. Fla. High Sch. Athletic Ass’n, 942 F.3d 1215, 1247 (11th Cir. 2019) (internal citations omitted). Yet, American courts do consider the tenets of a religion in such claims. For instance, the Eleventh Circuit went on to say this about communal prayer:
What we can say with confidence is that communal prayer practices may be so important as to rise to the level of “belief.” For instance, in Judaism, certain prayers require the presence of at least ten persons, known as a “minyan.” “A central tenet of Orthodox Jewish faith requires daily prayers and the presence of a ‘minyan’ — a quorum of ten males over the age of thirteen — for the reading from the Torah on the weekly Sabbath and religious holidays.” The communal nature of the prayer is a condition precedent to the prayer itself. We also know generally that communal prayer is deeply rooted in religious traditions the world over. Christians in particular have been engaging in communal prayer and ritual since the first century.31Id. at 1248 (internal citations omitted).
It may be that such “confidence” in what religious doctrine contains may find its way into the application of the ministerial exception, founded as it is in legislation and judicial interpretation. A court may feel that rather than rely on the party claiming the exception, it might just as easily undertake its own investigation into the connection between the claimed doctrine and the need for an exception to the equality principle. It requires little imagination to envision such a scenario — indeed, one very like Morrissey-Berru — in which a court takes the position that a party claiming the ministerial exception does so for improper purposes, meaning that it is necessary to examine the religious doctrine itself, rather than merely rely on what it is told by the party, to ensure that the religious doctrine really does require the protection of the exception.
In Morrissey-Berru, as Russo and Osborne make clear, there may be a significant disjuncture between the Archdiocese of Los Angeles’s claimed exception and what its own social teachings actually require. Russo and Osborne write that:
the actions of the educational leaders in Morrissey-B[erru] who refused to address the teachers’ claims on their merits…disingenuously fail[ed] to live up to the espoused social teachings of the Roman Catholic Church on labor that they were…purportedly charged with implementing by their words and deeds. In these teachings, rooted in Gospel values, the Magisterium of the Roman Catholic Church, as expressed in both papal documents and Conciliar pronouncements has long and eloquently advocated for the rights and dignity of all workers. Presumably, these teachings, and the protections they seek to apply, include teachers and other employees in Roman Catholic schools and institutions who administrators should inform in advance as to whether they are ministers subject to the exception.32Charles J. Russo & Allan G. Osborne, Right Test, Wrong Outcome: Avoiding Misuse of the Ministerial Exception in Faith-Based Schools, Canopy Forum (July 22, 2020) <https://canopyforum.org/2020/07/22/right-test-wrong-outcome-avoiding-misuse-of-the-ministerial-exception-in-faith-based-schools/>.
Indeed, Russo and Osborne write, what was “puzzling, even troubling, [was] the theologically scandalous manner in which ‘leaders’ in the two Roman Catholic schools conveniently ignored these differences in seeking to brand the two teachers, and perhaps all of their colleagues, as ministerial.”33Id. The lesson from the Australian experience is simply this: a religious organization ought to think carefully about claiming the benefit of an exception so as to ensure that in doing so it does not contradict its own theology or social teaching. To do otherwise may invite a form of judicial scrutiny that it did not expect, and may not want.
The second lesson comes from the American approach. Title VII of the Civil Rights Act of 1964 left unresolved the interaction of an equality principle with the Free Exercise Clause. As we have seen, this meant that it was an open question as to how free exercise would be accommodated when a religious organization sought to discriminate, and so violate the equality principle, in hiring a minister of religion. The federal courts did not take long to fill the gap. Australian federal and state legislators left no such gap, creating a legislatively circumscribed religious exemption to mediate the interplay between free exercise and equality, carving out a wide space for discrimination on religious grounds, including the employment context. But while that space was legislatively established, nothing was put in place to determine how far the exemption could subsist. In other words, while it might apply to the initial employment of a minister, it is entirely unclear whether it would protect the employer in facts such as those found in Morrissey-Berru. Put another way, the question arises: if a minister is employed pursuant to the religious exemption, does that exemption continue to shield anything the employer might do once the minister is employed? Could the employer, in other words, discriminate against the employee, claiming the exemption as protection in doing so? That is a question that has no answer in Australian law
The Supreme Court supplied the American answer in Morrissey-Berru. The lesson for Australia, then, is this: failing a legislative intervention making clear the scope of the exemption beyond the employment of a minister, can it be long before a party will claim its benefit in circumstances such as those in Morrissey-Berru, and can it be long before a court will be willing to provide an answer? Failing a legislative mediation of the balance between equality and free exercise, the courts, which have already shown their willingness to assess the nature of religious doctrine in such claims, will almost certainly do the same when the exemption is claimed in circumstances not currently envisaged by the legislation.
Moreover, those circumstances may include the extension of the exemption to those who are not strictly speaking ministers of religion but who, as in Morrissey-Berru, fulfill some of the functions associated with that role, such as teachers. And that leaves open the possibility, as we have already seen in Morrissey-Berru, that employees may be left with limited protection against a range of potentially discriminatory conduct. For Australia, the lesson from American law is that legislatures ought to set parameters that create reasonable limitations upon the scope of the legislative exemption. Perhaps the best conclusion from both lessons, is simply that where legislators create a vacuum, courts will soon fill it. And that ought to give pause for thought to those who seek to rely upon an exception to or exemption from the equality principle on religious grounds. ♦
Paul T. Babie is Adelaide Law School Professor of the Theory and Law of Property, Adelaide Law School, The University of Adelaide, Australia.