One of the curious features of the Supreme Court’s version of the ministerial exception is that the rule is stated in absolute terms that eschew all attempts at balancing. Once an employee is characterized as a minister, then the religious body has an absolute right to fire them for any reason. Inquiries into pretext are dismissed. As the Court explains, “The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter `strictly ecclesiastical,’—is the church’s alone.”

Note that in choosing this rule, the Court does not merely reject a balancing approach; it even rejects the strict scrutiny rule that applies when government restricts free speech or association, or that applied in its own free exercise cases before the Smith decision.

Such an absolute rule inevitably puts pressure on other aspects of the doctrine. The most obvious will be who counts as a “minister” for purposes of the ministerial exception. The more categorical the rule that exempts employment decisions from legal scrutiny, the narrower the class of “ministers” will have to be to avoid manifest injustices.

To be sure, the Court might eventually create a series of limited exceptions for cases in which the church attempts to use the power to fire to blackmail or silence an employee from disclosing misconduct by the church or its officials or other ministers. Whether or not this can be done in a predictable or principled way, it suggests another pressure point in the doctrine as announced.

Interesting thought. I’ve wondered before about Courts who, in the first instance, introduce what seem to be absolute rights, that are then winnowed-away by subsequent Courts.