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  • Emilie Dye

Fire At Will: The First Amendment Should Cover Hirings and Firings

Updated: May 19, 2021

In Western societies, religion is evolving into a “get out of jail free” card.

The Supreme Court recently ruled to exempt religious institutions from specific hiring requirements, allowing them to discriminate against their employees.

In Western societies, religion is evolving into a “get out of jail free” card.

The Supreme Court recently ruled to exempt religious institutions from specific hiring requirements, allowing them to discriminate against their employees. The only way to protect religious freedom without discriminating based on belief is to increase freedom for all people, not merely the god-fearing.

Earlier this month, the Supreme Court issued a verdict on two cases, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel. Agnes Morrissey-Berru lost her job because of her age, Kristen Biel because of her breast cancer diagnosis. In both cases, the Court sided with the employers. The precedent? Ministerial Exemption, which says that a religious organization cannot be sued for discrimination by employees with the job title “minister” or by those who preform “important religious functions.”

As Justice Sonya Sotomayor summarized in the dissenting opinion, “In the Court's view, because the employees taught short religion modules at Catholic elementary schools, they were ‘ministers’ of the Catholic faith and thus could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse.”

Sotomayor’s got a point: This is wrong. The law shouldn’t treat certain people differently simply because they provide a religious function. But the solution is not to deny religious institutions the ability to hire and fire whomever they will.

As a society with a plethora of belief systems, we must take a neutral stance on others’ beliefs. To hold a single national morality would infringe on the convictions of millions, so we have the First Amendment giving each individual the right to exercise their interpretation of truth — including what each person thinks, says, and who they associate with.

Anti-discrimination law often collides with the beliefs of religious organizations. As  Justice Neil Gorsuch points out, the First Amendment restricts the court from second-guessing the “sincerely held” beliefs of religious groups.

As abhorrent as I find the view held by many churches that all intercourse except between a married man and woman is a sin, the First Amendment protects their right to act on that faith and not hire an LGBTQ+ minister. 

By singling out religious organizations and not secular ones for these special privileges, however, the government is itself breaking Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on religion. 

Equal treatment under the law requires the government give all organizations, whether religious, agnostic, or atheist, the same leeway in their hiring decisions.

Historically, when the government discriminates, the consequences are much worse than when an individual or businesses does so. Laws, not people, organizations, or companies, restricted both women and racial minorities from voting. The legal system, not groups or individuals, barred gay and lesbian couples from getting married.

These laws and many others resulted purely from prejudice. But not all discrimination is bigotry. I regularly eat at a Mexican restaurant with a 100-percent Latino staff, but I would boycott any restaurant which segregated customers based on their race. 

As an individual, I can quickly judge the Mexican restaurant’s motives. They needed workers with extensive knowledge of Mexican food and the ability to communicate with other Spanish speaking staff. A court system set on eradicating all discrimination would find this restaurant guilty of racial prejudice.

Individuals make value judgements better than laws. I wouldn’t send my child to a school which taught homosexuality was a sin, and I wouldn’t eat at a restaurant which failed to welcome all races. Should many people agree with me, the restaurant will struggle to find customers and the school students. And that would be just.

The free-market punishes discrimination. Any person who refuses to serve someone based on race, sex, sexual orientation, religion, disability, or any number of factors refuses good green American dollars. Any business which tosses resumes for similar reasons will have a smaller pool of applicants and pass by talent able to earn the business money.

Religion should not have a monopoly on the option to hire and fire freely. That option should be allowed to people and businesses of all beliefs and persuasions.


By failing to give all employers, not merely the faith-based ones, more power over their hiring and firing decisions, the Supreme Court has itself discriminated against systems of belief. Discrimination will always exist in society to some extent. People have a responsibility to make value judgments according to their own beliefs. Organizations that consistently show prejudice will face natural consequences.  

This article first appeared in RealClear Policy on 24 July 2020.

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