Religious Hiring Beyond the Ministerial Exception

Luke W. Goodrich*

Can a religious elementary school dismiss its secretary for entering a same-sex marriage? Under the well-known “ministerial exception,” religious organizations have a constitutional right to select their “ministers”—broadly defined to include individuals who perform important religious functions. But what about employees, like a secretary, that do not qualify as ministers? What legal doctrines, if any, protect a religious organization’s freedom to hire and fire nonministers?

This question has gone largely unaddressed in caselaw because there was little occasion, until recently, to litigate it. But that changed when the Supreme Court decided Bostock v. Clayton County (2020), which construed federal law to prohibit employment discrimination based on sexual orientation and gender identity. Bostock has unleashed a wave of new lawsuits against religious organizations that ask all their employees, including nonministers, to refrain from sex outside traditional marriage. This wave of lawsuits is now forcing courts and litigants to grapple with legal protections that have long been undertheorized in caselaw and scholarship.

This Article provides the first comprehensive taxonomy of legal protections for religious hiring beyond the ministerial exception. It analyzes six such protections. Three are statutory: (1) Title VII’s religious exemption, (2) Title VII’s bona fide occupational qualification exception, and (3) the Religious Freedom Restoration Act. Three are constitutional: (4) the church autonomy doctrine, (5) the freedom of expressive association, and (6) the Free Exercise Clause. For each protection, the Article examines the leading caselaw (where it exists), analyzes the arguments for and against the protection, and identifies key pressure points and unanswered questions. The result is a much-needed roadmap of emerging legal developments that will be of great value to scholars, jurists, and practitioners alike.

After providing this roadmap, the Article addresses the deeper, unresolved problem of determining which legal doctrines offer the best “fit” for protecting the religious hiring of nonministers. As the Article explains, Title VII’s religious exemption offers a straightforward statutory basis for protecting the religious hiring of nonministers. But recent developments in state law are poised to take federal statutory protections off the table in some cases, forcing courts to grapple with the weighty constitutional doctrines those statutory protections are meant to embody. And those constitutional doctrines present thorny legal issues that neither courts nor commentators have yet explored.

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© 2026 Luke W. Goodrich. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Vice President and Senior Counsel, The Becket Fund for Religious Liberty. The author has served as counsel or co-counsel in twenty-two of the cases discussed in this Article: Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012); Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021); Holt v. Hobbs, 574 U.S. 352 (2015); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020); Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020); Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, 145 S. Ct. 1583 (2025); Mahmoud v. Taylor, 145 S. Ct. 2332 (2025); Yeshiva University v. YU Pride Alliance, 143 S. Ct. 1 (2022); Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., 41 F.4th 931 (7th Cir. 2022); Fitzgerald v. Roncalli High School, Inc., 73 F.4th 529 (7th Cir. 2023); Billard v. Charlotte Catholic High School, 101 F.4th 316 (4th Cir. 2024); Garrick v. Moody Bible Institute, 95 F.4th 1104 (7th Cir. 2024); Belya v. Kapral, 59 F.4th 570 (2d Cir. 2023); Whole Woman’s Health v. Smith, 896 F.3d 362 (5th Cir. 2018); Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, 82 F.4th 664 (9th Cir. 2023) (en banc); McMahon v. World Vision Inc., 147 F.4th 959 (9th Cir. 2025); In re Diocese of Lubbock, 624 S.W.3d 506 (Tex. 2021); Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., 193 N.E.3d 1009 (Ind. 2022); MoChridhe v. Academy of Holy Angels, 29 N.W.3d 753 (Minn. Ct. App. 2025); General Conference of Seventh-Day Adventists v. Horton, 787 F. Supp. 3d 99 (D. Md. 2025). However, the views expressed in this Article do not necessarily represent those of the Becket Fund or its clients.