An Alternative Sacrifice: Religious Arbitration Agreements in Ministerial Employment Contracts

After decades of development in lower courts, the Supreme Court unanimously affirmed the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012) and provided additional guidance in Our Lady of Guadalupe School v. Morrissey-Berru (2020). The precise contours of the exception remain uncertain, but the doctrine—grounded in the Free Exercise and Establishment Clauses of the First Amendment—effectively bars civil courts from reviewing claims against religious institutions that implicate ministerial employment decisions. Thus, ministers are unable to pursue redress for legitimate harms that occur within the scope of their religious employment, even if unrelated to religious doctrine. This comment proposes that religious employers include legally binding religious arbitration agreements in ministerial employment contracts. For employees and employers, the agreements would limit the burdens of litigation, provide notice to ministers, and furnish a form of redress rooted in common cultural understanding—all without triggering First Amendment concerns. At a broader societal level, the agreements would promote religious liberty and its tangible societal benefits. Religious arbitration provides a respected and enforceable avenue for justice that civil courts cannot provide, but religious institutions ought to.