When should laws of general application apply to religiously affiliated entities? Although there is little question that churches themselves are exempt from most precepts of the law, more difficult questions arise with respect to whether other religious institutions should benefit from an exemption. Many of those questions have arisen with respect to the application of laws addressing the employer-employee relationship.
In some cases resolving the question requires an analysis of the character of the institution itself. This is the approach, for example, taken by some states with respect to statutes requiring prescription contraception coverage—the statute applies unless an entity is a “religious employer” (or some similar term) within the meaning of the statute.
In other cases, the determination is whether a particular employee or group of employees is exempt from the protection of certain laws that would otherwise apply to a religious institution. That is the case with the ministerial exemption of Title VII, which exempts from its protections ministerial employees of a religious employer.
My focus in this Article is on how the National Labor Relations Board (the NLRB or the Board) determines whether to exercise jurisdiction over religious colleges and universities, subjecting them to the collective bargaining requirements of the National Labor Relations Act (the NLRA).