Religion and the Law

Luke Goodrich | 8.6.2025 8:01 AM

Can a religious group legally fire a non-minister employee (like a secretary or janitor) for violating the group's beliefs about sex or marriage? As I've explained, this is an urgent question likely to reach the Supreme Court soon. And the most straightforward answer is to apply the plain text of Title VII's religious exemption—which says religious groups may limit employment to individuals who adhere to their particular religious beliefs, observances, or practices.

But Title VII's religious exemption won't resolve the question entirely. That's because employees can sue under state law, and some states have recently gutted their state-law religious exemptions. Thus, as I explain in my article, Religious Hiring Beyond the Ministerial Exception, courts will eventually have to decide if religious hiring decisions are also protected by the Constitution.

My article analyzes three potential constitutional protections: (1) the church-autonomy doctrine, (2) the freedom of expressive association, and (3) the Free Exercise Clause. Today, I'll focus on the first: church autonomy.

The Scope of Church Autonomy

Church autonomy is a hot topic. Multiple appellate judges have gone out of their way to write about it. Justices Alito and Thomas have, too. What is it?

The church-autonomy doctrine is a legal principle rooted in "the understanding that church and state are 'two rightful authorities,' each supreme in its own sphere." While this doesn't mean religious institutions are immune from civil laws, it does mean the First Amendment protects a certain sphere of autonomy in which the government is not permitted to intrude. This sphere is often described as encompassing the right of religious institutions to "decide for themselves, free from state interference,........

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