Religious Hiring and Expressive Association

Thanks to Eugene for inviting me to guest-blog about my forthcoming article, Religious Hiring Beyond the Ministerial Exception. My first post laid out how appellate courts are grappling with an important question that will likely reach the Supreme Court soon: What legal protections do religious groups have when they fire a non-minister (like a secretary or janitor) for rejecting the group's religious teachings on sex or marriage? I then explored two potential protections: Title VII's religious exemption and the First Amendment's church-autonomy doctrine.

Today I'll argue that a different First Amendment protection—the right of expressive association—also protects religious hiring by religious groups.

What Is Expressive Association?

Unlike the church-autonomy doctrine, the right of expre