William & Mary Journal of Race, Gender, and Social Justice
Abstract
An examination of the protections afforded to religious institutions in their hiring decisions. Both § 702 of the Civil Rights Act and the judicially created ministerial exception allow churches to use criteria that other employers are not permitted to use under the law when making hiring decisions. Beginning with McClure v. Salvation Army, courts have slowly expanded the scope of these protections, leading up to the recent case of Petruska v. Gannon University. Petruska provides an example of the extent to which a broad reading of § 702 and the ministerial exception can harm religious workers. The opinion of Judge Becker, who wrote the first appeals court decision, presented an alternative view of § 702 and the ministerial exception, as he believed that the courts have a duty to protect the rights of religious workers and that the protections of § 702 and the ministerial exception should only be imposed when necessary. Due to his death during circulation of his opinion, Judge Becker's decision was reversed in a rehearing of the case. In denying certiorari of Petruska's case, the Supreme Court of the United States failed to take advantage of an opportunity to protect the rights of women in the religious workplace.