Courts ♦ Article 64 Va. J. Int’l L. 571 (2024)

Can Churches Discriminate? Religious Freedom, Non-Discrimination, and the Search for an Inter-American Standard

PATRICIO ENRIQUE KENNY & MARÍA FLORENCIA SAULINO

When delimiting the power of churches to discriminate, U.S. and European jurisprudence have developed significantly different responses. The U.S. Supreme Court has embraced an “absolutist approach” by using the ministerial exception doctrine, which allows churches to discriminate against their ministers even if the grounds for discrimination are not based on religious doctrine. The European Court of Human Rights, on the other hand, has adopted a “balancing approach,” according to which the rights conflicting in each case must be weighed. The result is that acts of discrimination by churches that are not based on religious doctrine do not appear to be protected in Europe.