Religious Organizations May be Exempt from Claims of Sexual Orientation Discrimination

9/15/2005

Churches and religious schools can be faced with the issue as to whether they may fire or refuse to employ an individual based upon a person’s sexual orientation. Under Minnesota law, if the job itself is tied to the religious purpose of the organization, the courts will likely support a decision not to employ or to fire a such a person. The Minnesota Court of Appeals has addressed this issue three times. In each case the Court has upheld a religious organization’s employment decision, citing the First Amendment, the Freedom of Conscience clause and Minnesota statutory law.

The First Amendment of the United States Constitution can protect a religious organization from a sexual orientation discrimination lawsuit. The First Amendment provides, in relevant part,"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." If a disgruntled employee sues, the issue is whether the court’s resolution of the claim against a religious organization will result in "excessive entanglement" between church and state. The Minnesota Supreme Court explains: courts "may not inquire into or review the internal decision making or governments of a religious institution." However, courts may address a claim against a church if the dispute can be resolved according to "neutral principles of law"; that is, by rules or standards that have been developed and are applied without particular regard to religious institutions or doctrines. Thus, the fundamental question under the First Amendment in these cases is whether resolution of the claim is fundamentally connected to issues of church doctrine, or whether it may be resolved by "neutral principles".

For example, the Minnesota Court of Appeals recently held that Lutheran High School of Greater Minneapolis may discharge an ordained minister who was a religious teacher and campus pastor upon learning his sexual orientation. John F. R. Doe v. Lutheran High School of Greater Minneapolis, et al, August 23, 2005. While the pastor was celibate and did not speak openly about his sexual orientation, the Lutheran Church-Missouri Synod’s written documents state that "homosexuality is intrinsically sinful." Thus, the court concluded that it could not second guess the school’s decision for, if it did so, it would be a violation of the establishment doctrine of the First Amendment. That is, the pastor’s assertion that he should not have been discharged based on his sexual orientation would require the court to analyze and apply church doctrine to assess his argument. This is something the Court will not do.

The Doe Court also held that the pastor’s claim must be dismissed under the Freedom of Conscience clause of the Minnesota Constitution. The Freedom of Conscience clause provides in part, that each citizen may worship "according to the dictates of his own conscience". This clause "precludes an infringement on or an interference with religious freedom, and limits the permissible contravailing interests of the government." Applying this principle, the Court held that Lutheran High School could fire the pastor, even though it never incorporated into its employment policies its religious belief that homosexuality is a sin.

While the Minnesota Human Rights Act prohibits discrimination in employment based on sexual orientation, the Act also exempts religious associations from this prohibition. The Act expressly allows any religious organization, including any religious school, to take actions based upon a person’s sexual orientation. However, this exemption to the Human Rights Act does not apply to secular business activities engaged in by the religious organization if these activities are unrelated to religious purposes.

It appears from the three appellate court decisions addressing this issue that this exemption will be interpreted broadly. In the first case, the court found that a church could terminate a music director on the basis of sexual orientation because the job itself was directly tied to the religious purposes of the organization. Egan v. Hamline United Methodist Church, April 13, 2004. In the second case, Thorson v. Billy Graham Evangelistic Association, October 19, 2004, the court held that a religious outreach organization could terminate an employee on the basis of sexual orientation, even if that employee was merely a mail clerk, because the entire purpose of the organization was religious in nature. In the third case, John F. R. Doe v. Lutheran High School of Greater Minneapolis, et al, the court reviewed both the Egan and Thorson decisions, cited them with approval, and held that the high school could discharge Doe from his position as campus pastor, teacher and chair of the theology department because of his sexual orientation, even if he was celibate and had never engaged in a homosexual relationship.

All employment decisions must be exercised with caution in light of all the surrounding circumstances. However, if resolution of the issue requires the discussion, evaluation and resolution of church doctrine, it is likely that Minnesota’s courts will support a religious organization’s decision to discharge or refuse to hire as a result of a person’s sexual orientation.

This article was authored by Ehrich Koch. Click here to find out more about Mr. Koch's practice.  For more information about this issue, contact Ehrich Koch at 612-336-9306 or ehrich@lommen.com.