THE MINISTERIAL EXCEPTION TO TITLE VII: THE CASE FOR A DEFERENTIAL PRIMARY DUTIES TEST.

The article discusses the ministerial exemption for religious employers in the U.S. Accordingly, the paper proceeds in five parts. The first part describes the history of the ministerial exception. The second part provides details of the constitutional bases for the exception under both Religion Clauses, and argues that the expressive association right further justifies the ministerial exception even though the case law has not yet recognized this rationale. The third part evaluates the primary duties test used to trigger the ministerial exception. The fourth part encourages adoption of a deferential primary duties test to cure these constitutional defects. The last part responds to potential criticisms of a deferential primary duties test.