Conlon claimed that IVCF had waived the ministerial exception, but the majority held:
The ministerial exception is a structural limitation imposed on the government by the Religion Clauses, a limitation that can never be waived....Finally the majority held that the First Amendment's ministerial exception can be asserted as a defense against state law claims, and can be raised by individuals when they are personally sued for discrimination as the agents of a religious employer.
Judge Rogers concurred in the result, but contended that the majority went further than necessary in reaching its conclusion. He said:
Our decision today does not require us to decide whether a religious employer could enter into a judicially-enforceable employment contract with a ministerial employee not to fire that employee on certain grounds (such as pregnancy). Judicial enforcement of such a contract might unduly interfere with the independence of religious institutions, but barring religious institutions from offering such a legally binding guarantee might make it harder for some religious institutions to hire the people they want. Conlon in this case now disavows any contractual argument. Thus, to the extent that any analysis in the majority opinion might be read to govern non-Title VII employer obligations, such analysis is not necessary to our judgment.Acton Institute Power Blog reports on the decision. [Thanks to Paul deMello Jr. for the lead.]
