The U.S. Supreme Court’s ruling that the First Amendment’s ministerial exception bars job-bias suits against religion-based employers will likely have an impact far beyond discrimination claims.

The affirmative defense could be invoked in other cases, including those alleging sexual abuse by members of the clergy.

“Yes, I think that churches and religious organizations who are sued because [their] ministers did something wrong will invoke that affirmative defense,” said Eric Schnapper, a professor at the University of Washington School of Law who wrote an amicus brief for the National Employment Lawyers Association in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.

In that ruling, the court unanimously held that the First Amendment provides churches and other religious organizations an affirmative defense against employment discrimination claims in which, as in that case, the claimant is found to be a minister.

While the interest in guarding against employment discrimination is great, “so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission,” Chief Justice John G. Roberts wrote for the unanimous court. “When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us.”

The court’s focus on keeping the government out of the internal personnel decisions of organizations makes the case a potential blockbuster in terms of providing a possible defense in cases of alleged abuse, Schnapper said.

“That will have, potentially, the most explosive impact,” Schnapper said.

Religious groups can claim that “even if we hired a known child molester as a parish priest,” the ministerial exception bars lawsuits based on that hiring decision, he said. “You will see a wave of more aggressive attempts to use” the exception.

Impact on employment claims

Ian Scharfman of The Scharfman Law Firm in Houston and author of the Anti-Defamation League’s amicus brief in the case, said it was not a total loss for employees claiming discrimination by religious organizations.

In the brief, he urged the court to hold that the ministerial exception was not a jurisdictional bar to bringing claims, but rather an affirmative defense against such claims.

That way, the burden is not on the plaintiff to prove that he or she is not a minister, but rather on the defense to prove that he or she was. And the court agreed.

“That was really important to balance things out,” Scharfman said. Unlike jurisdictional bars, “when you have an affirmative defense you are allowed to conduct discovery on the merits.”

Scharfman said he believes the ruling could have a big effect on employment cases, due to the large number of employees that religious organizations have.

“I think it could have a significant impact on a large portion of the nation’s workforce,” Scharfman said. “It’s not just applicable to houses of worship. It’s any entity that has ties to a religious employer [and that can] impact a large class of workers.”

But Robert J. McCully, a partner in the Kansas City office of Shook, Hardy & Bacon, said the case may not make much of a difference in the way job-bias claims against religious employers are handled, since most circuits have already ruled that the ministerial exception provided a defense.

“You are not going to see a huge difference [from] the way things have taken place,” said McCully, who wrote an amicus brief on behalf of the American Association of Christian Schools.

Next fight: Who gets the exception?

Though the court found that the exception applied in the case given the circumstances — the teacher accepted a formal call to religious service, received extensive ministerial training and was held out to be a minister — it did not prescribe any formula for determining whether the ministerial exception applies.

That, experts say, will be the next major area of litigation.

“We certainly have the factors” that were considered in Hosanna-Tabor, McCully said. “There will be those who try to hold the case to its facts. [But] because the court did not draw any bright lines, there are definitely going to be cases coming down the pike.”

Scharfman said one important aspect of the decision is what the justices did not say. Despite being urged to, the court did not hand down a rule that was deferential to a religious organization’s definition of minister. Instead, the determination would be made objectively based on the facts of the case.

“I believe it should be inferred that the court rejected the notion that there should be an over-deferential approach,” Scharfman said.

There are other unresolved issues. In the opinion, Roberts explicitly declined to decide to what extent, if any, the ministerial exception applies outside of the employment discrimination context. That could also lead to litigation over whether the First Amendment can be used as a defense in other types of claims, ranging from contract disputes to tort suits.

“That is up in the air,” Schnapper said.