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In Gordon College v. DeWeese-Boyd, a social work professor at a religious college sued after she was denied promotion. The college asserted the “ministerial exception,” a judicially crafted and constitutionally grounded exception to the ordinary rules of liability arising out of the employment relationship between religious institutions and their ministers. Although the plaintiff had no distinctively religious duties, the college expected her (and all other faculty) to integrate the faith into her teaching and scholarship. The Massachusetts Supreme Judicial Court (SJC) held that this obligation, standing alone, was insufficient to qualify the plaintiff as a minister within the meaning of the exception. The U.S. Supreme Court denied the college’s petition for certiorari, but Justice Alito, joined by three other Justices, issued a statement respecting the denial. He criticized the SJC’s view of religious education, suggested that the mere duty to infuse the faith into teaching and scholarship was sufficient to qualify a professor as a minister, and expressed willingness to review the SJC’s decision after a final judgment. Nonetheless, DeWeese-Boyd’s claims may proceed to litigation.

Justice Alito’s statement is significant both for the scope of the ministerial exception—as applied to religious colleges and other employers—and for the future of the relationship between the Constitution’s Religion Clauses. Justice Alito’s capacious understanding of the ministerial exception—and his view that it is grounded primarily in the Free Exercise Clause, rather than the Establishment Clause—will likely leave little room for civil courts to adjudicate claims that assert wrongful treatment by religious institutions of ministerial employees. Equally important, Justice Alito’s view suggests a continued marginalization of the Establishment Clause in ways that will have effects far beyond the world of higher education.

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