Who is a Rabbi? When Religious Values and U.S. Employment Discrimination Law Clash

The ongoing culture wars in the United States—specifically with respect to contraception and same-sex marriage—have changed not only the prevailing legal framework, but have also transformed many of the values surrounding the 21^st century family. These transformations have raised a series of issues for religious schools in the United States—including Orthodox Jewish day schools—with respect to employment anti-discrimination law. To what extent can such schools, operated in accordance with a specific set of religious values, hire and fire employees when those employees’ conduct fails to conform to those religious values?

At the center of this conundrum stands the “ministerial exception,” a constitutional principle which shields religious institutions from liability under anti-discrimination laws when they make employment decisions regarding “ministers.” For example, even though employers may not make employment decisions on the basis of sex, an Orthodox synagogue could refuse to hire female job applicants for an open rabbinic position.

But who counts as a minister? When considered in the context of Orthodox Jewish day schools, are all the Judaic Studies faculty “ministers”? How about general studies faculty? To answer this question, this paper considers a line of Supreme Court cases that articulate the relationship between religious institutions and the judicial system in terms of “implied consent.” And using that framework, this paper proposes a method for identifying who is and is not a rabbi by looking not to rigid religious categories, but instead examining the reasonable expectations of employees who agree to work for religious schools.