“The First Amendment ministerial exception protects a religious organization's employment relationship with its ministers, from hiring to firing and the supervising in between.”[1]
The ministerial exception applies to ministers. Yes, but what is a “minister” – specifically within the employment law context? And which employers are sufficiently “religious” to be entitled to such broad liability protection? Two recent court rulings unpack these critical legal terms, defining them flexibly and favorably towards the employers’ religious freedom to carry out their mission in employment-related decisions.
These cases illustrate how the ministerial exception may bar employees’ adverse claims against religious employers considerably well beyond the clergy-church context. One case involves food preparation and the other customer service. Both court rulings analyze whether the employees’ claims should be barred in light of each employer’s religious mission and the employee’s role as a “minister” by performing “vital religious duties,” consistent with First Amendment constraints. While these rulings are from the Ninth Circuit Court of Appeals (covering California and several other western states) and therefore are not technically binding on other circuits, they are nevertheless highly instructive since they each build significantly on U.S. Supreme Court precedent and other key decisions.
Keeping Kosher - Broad View of “Religious Institution” and “Minister”
Context: Orthodox Jewish Employer + Mashgiach Employee
In Markel v. Union of Orthodox Jewish Congregations of America, the Ninth Circuit affirmed the lower court’s decision holding that the First Amendment’s ministerial exception barred a claim brought by appellant Yaakov Markel, a mashgiach or Orthodox Jew who supervises food preparation to ensure kosher compliance, against his employer, Union of Orthodox Jewish Congregations of America (“OU”) . OU is a Section 501(c)(3) nonprofit with a mission to serve the Orthodox Jewish community through a kosher certification program. OU is not a Jewish synagogue or other house of worship; rather, it supports a network of synagogues through providing religious programming, advocacy, and youth programs. OU charges fees for its kosher food certification, and such fees provide most of its revenues.
Markel was responsible for the kosher integrity of grape products at two wineries as part of OU’s kosher team. To qualify to serve as a mashgiach, Markel needed to submit a letter from an Orthodox rabbi certifying that he was Sabbath observant, knowledgeable about kosher law, and compliant with the same. If Markel had questions about Jewish law, he was to ask one of OU’s Jewish law scholars, known as poskim, for instruction and direction. Markel’s and OU’s employment later became adversarial, and he asserted claims of fraudulent denial of a promotion and a raise as well as overtime compensation.
Legal Analysis: Religious Institution + Minister
On summary judgment appeal from a ruling favoring OU, the Ninth Circuit first recognized the applicability of the ministerial exception as a matter of constitutional dimension under the First Amendment, protecting a religious organization’s autonomy regarding internal management including employment matters generally. Quoting the U.S. Supreme Court’s 2020 Our Lady of Guadalupe Sch. v. Morrissey-Berru decision, the appellate court recognized that “the Religious Clauses require deference to a ‘religious institution’s explanation of the role of [its] employees in the life of the religion in question’” and therefore “’it is impermissible for the government to contradict a church’s determination of who can act’ as one of these mission-critical employees.”
With such religious dynamics in view, effectively barring all employment-related claims, the court then addressed the all-important questions of whether (1) OU is a “religious institution” that could enjoy the protections of the ministerial exception, and (2) if Markel’s mashgiach position rendered him a “minister.” The court answered both questions affirmatively.
As an initial matter, the court rejected the notion that the fact OU’s kosher certification program earned revenue necessarily defeated the ministerial exception. Moving onward, the court observed that the term “religious institution” is not a defined term, with no rigid formula for application. Citing Spencer v. World Vision, a 2011 Ninth Circuit ruling, the court evaluated whether OU 1) has a religious mission; 2) is engaged primarily in carrying out that religious purpose; 3) holds itself out to the public as carrying out such religious mission; and 4) is not primarily engaged in commercial activities. The court concluded that the first three factors favored OU since it is undisputedly organized to support the Orthodox Jewish community through religious programming. As for the fourth factor, the court declined to find that revenue generation rendered OU insufficiently religious (citing the Supreme Court’s 2014 Burwell v. Hobby Lobby Stores, Inc. decision), especially since such revenue did not benefit any private interest. The court then concluded that OU met the “religious institution” test.
Regarding the second question of whether Markel was a “minister,” the court relied heavily on the Supreme Court’s landmark 2011 Hosanna-Tabor[2] decision, in which it was similarly recognized that such term should not be rigidly defined, as well as the court’s subsequent Our Lady of Guadalupe 2020 ruling.[3] The Ninth Circuit instructed that no one-size-fits-all approach should be used: “What matters, at bottom, is what an employee does” (quoting Our Lady, in turn quoting Hosanna-Tabor). Expanding on this foundational concept, the appellate court concluded that a broad view should be taken of who counts as a minister.
Result: Ministerial Exception Bars Employee’s Claims
Applying such legal principles to Markel, the court held that he was a “minister” in his role as a mashgiach, since such work was essential to OU’s religious mission. In so ruling, the court rejected Markel’s argument that because his dispute with OU was secular, his claim should be barred based on nonsecular religious grounds. Instead, the court concluded that a religious institution like OU is not legally required to identify any religious justification for its employment-related decisions, regardless of the nature of an employee’s claim. The court elaborated that the danger of excessive entanglement forbids such approach, particularly with respect to the substantial risk of intertwined government scrutiny unduly burdening religious organizations. No religious justification is required; the minister’s claims are categorically barred against the religious institution.
Customer Service - on Mission
Context: Christian Ministry + Customer Service Representative Applicant
In McMahon v. World Vision, decided in in August 2025, the Ninth Circuit reversed the lower court’s decision for the employee Aubry McMahon against World Vision, a Section 501(c)(3) nonprofit, with a mission to share the gospel of Jesus Christ through “humanitarian outreach to children and families around the world who are poor and underserved.” In this case, World Vision had extended a job offer to McMahon for a remote customer service representative position (“CSR”), but then revoked the job offer upon learning of her same-sex marriage.
World Vision pursues its mission through partnership with donors, prayer supporters, and churches, and it holds itself out to the public as a Christian ministry. All World Vision staff members are trained on the importance of prayer, expected to spend time regularly in devotions, and also expected to attend weekly worship services. Relevant to the CSR position, the job description sets forth World Vision’s expectations that the CSR would serve as a “liaison between donors and the general public” providing “basic levels of customer service for all special programs.” Correspondingly, each CSR is expected to “[h]elp carry out [World Vision’s] mission, vision, strategies,” “[p]ersonify the ministry of World Vision by witnessing to Christ and ministering to others,” and “[k]eep Christ central in [their] individual and corporate lives.” Additionally, World Vision provides “Standards of Conduct” to current and prospective employees, which they must affirm as a condition of employment. One of these standards is that Biblical marriage is a covenant between a man and a woman. In applying for the CSR position, McMahon affirmed World Vision’s Standards of Conduct. Upon revocation of her job offer, McMahon sued World Vision for unlawful discrimination based on sex, sexual orientation, and marital status. The trial court granted summary judgment in favor of McMahon and therefore rejected World Vision’s ministerial exception defense, and World Vision appealed.
Legal Analysis: What Employee Does + Vital Religious Duties + Mission
On appeal, the Ninth Circuit first noted that the ministerial exception protects religious organizations as an exception and is therefore to be applied on a limited basis, not necessarily on an organization-wide basis. As in Markel, the court recognized the legal significance of Hosanna-Tabor and Our Lady along with the accompanying principle that the ministerial exception is not to be applied according to any rigid formula. The court then focused on key elements from Our Lady, namely “what an employee does” and “whether they perform ‘vital religious duties’’’ (quoting Our Lady). The court further noted that it is the employer’s burden to prove this defense – here, whether the World Vision employee working as a CSR is a “minister.”
Specifically evaluating the CSR position, the court looked to other recent cases applying the ministerial exception including Markel: “The common thread between these cases is that the Catholic schoolteacher is Our Lady, the work practice apprentice in Behrend [involving a Zen Buddhist temple worker], and the mashgiach in Markel all performed ‘vital religious duties’ in light of the core missions of their respective organizations.”
Result: Ministerial Exception Bars Employee’s Claims, Within Context
The parties did not dispute that World Vision is a religious institution; the prime question involves whether a CSR at World Vision is a minister. Considering this question, the court rejected analyzing job duties in isolation and instead considered the CSR duties in context. When wholly viewed, the court determined the CSR position indeed performs “vital religious duties” furthering World Vision’s religious mission. As one example, the court noted that CSRs are expected to pray with donors about their needs and those of ministry recipients as well as to share their Christian faith. Indeed, as the court recognized, CSRs “support donors’ religious transformation by ‘inspiring those donors who share World Vision’s faith and by sharing that faith with those who don’t.’” Consequently, although the CSR job description listed primarily secular and administrative duties (e.g., answering phone call), other required qualities were grounded thoroughly in religious requirements (e.g., sharing the gospel). The Ninth Circuit thus held that World Vision had met its burden to prove that the CSR position qualifies for the ministerial exception, thereby barring McMahon’s discrimination claims.
In so ruling in the employer’s favor, the court rejected the employee’s argument that a universal application of certain religious requirements such as prayer, worship services, and devotions watered down the ministerial exception’s applicability. Instead, the court determined that such religious requirements, while not alone dispositive, may still contribute to the contextual conclusion that an employee’s position (such as McMahon’s) is central to the religious organization’s core mission. The legal analysis is thus on a case-by-case basis among employees based on elements such as their job descriptions, in order to identify what they do and whether they perform the requisite “vital religious duties’’ related to their employers’ religious missions. Ultimately for McMahon, the court held that the ministerial exception applied to bar her claim because CSRs serve as World Vision’s “voice,” responsible for communicating its religious mission through ministry engagement with donors and directly related mission advancement.
Key Takeaways
What should ministry employers do? First, consider whether the organization could reasonably be viewed as a “religious institution,” in terms of its mission, activities, and how it holds itself out to the public. Second, consider whether any employees could reasonably be viewed as “ministers,” based on their job descriptions, actual duties, and their work’s relationship to the organization’s mission. Religious attributes of employment should be well defined in written materials, policies, and practices – including governance documents, employee handbooks, and other guidance for workers and program participants. Employers should further take care to carry out their activities consistent with such standards and missional qualities. Doing so may not necessarily preclude adverse employment claims, since individuals may assert them with or without merit.[4] But conscientious employers will be well poised to guard and defend against such claims, now more persuasively so, thanks to Markel and McMahon.
[1] Demkovich v. St. Andrew the Apostle Par., No. 19-2142, 2021 U.S. App. LEXIS 20410, at *33 (7th Cir. en banc 2021).
[2] The case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC firmly established the employment-related ministerial exception, by religious autonomy for churches and other religious organizations as previously recognized by appellate courts across the United States. In Hosanna-Tabor, a parochial schoolteacher sued the church/school where she worked, but not under Title VII. Instead the teacher sued the church/school under the Americans with Disabilities Act, claiming that she had been discriminated against based on a disability. In holding for the church/school, the Court reasoned that, because it was a “religious group,” and because the teacher was a commissioned minister, with religious duties as part of her job, it was exempt from the teacher’s discrimination claims. According to the U.S. Supreme Court, the church had a right to govern its internal affairs, especially with regard to the hiring and termination of its “ministers.” Because of this “ministerial exception,” the church/school’s decisions regarding her employment had to be left alone as a matter of First Amendment freedom of religion. This decision and subsequent developments are addressed in our law firm’s article focusing on the campus ministry context.
[3] In Our Lady of Guadalupe Sch. Morrissey-Berru St. James Sch. v. Biel, the Supreme Court rejected a formulaic checklist approach for determining whether employees are ministers. Instead, the Court ruled more functionally: “What matters, at bottom, is what an employee does.” This substantially broadened the standard of applicability, meaning that employees of religious organizations whose jobs “lie at the core of the religious organization’s mission” are likely “ministers” for purposes of the exception and therefore may not sue their employers for adverse employment actions. This ruling is further evaluated in our law firm’s related article on Our Lady.
[4] These important religious freedom principles for the ministerial exception’s applicability extend to other areas such as the following: the “church autonomy” doctrine, which can arise within the context of property matters, governance and other disputes; sex discrimination claims involving sexual orientation, gender identity, and related issues, as now permitted under Title VII; and harassment claims. And while overlapping religious liberty interests exist as well for the ministerial housing allowance, it is distinctly different from the ministerial exception.
