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Among the first search results for Kamala Harris’ position on religious liberties, one will find her commitment to the First Amendment, but curiously, it is tied to “reproductive freedom.”

“As extremists work to take away the freedom of women to make decisions about their own bodies, faith leaders are taking a stand, knowing one does not have to abandon their faith or deeply held religious beliefs to agree that a woman should have the ability to make decisions about her own body and not have her government tell her what to do,” writes an MSNBC religion contributor.

With such a deficient view of what religious liberty means, it is not surprising that this administration has sought to limit the rights of religious organizations, and has enabled and encouraged intrusive and costly litigation against them. A Harris-Walz Administration will only further harm religious liberties in this country.

For many years, I have worked with the Becket Fund For Religious Liberty to have the courts recognize the true scope of the ministerial exception that is critical to the functioning of religious institutions. In 2012, in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C, the Supreme Court held that a ministerial exception protects churches’ autonomy to select and control key religious personnel. In 2020, in Our Lady of Guadalupe Sch. v. Morrissey-Berru, the Supreme Court rooted this commitment to religious autonomy in the First Amendment’s protection of “the right of religious institutions to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

Representing law professors whose specialty is history of the Religion clauses, we filed amicus briefs in several circuits, with courts citing our briefing and professors’ writings, and in the Supreme Court in Our Lady of Guadalupe. Subsequently, we submitted an amicus brief and our view prevailed in the en banc Seventh Circuit, which held that “this constitutional protection applies to hostile work environment claims” as well.

The EEOC was on the wrong side in these cases. Though the EEOC is an independent agency, the president appoints (and can and did fire) its general counsel. In the first ministerial exception case, the Supreme Court rejected EEOC’s “remarkable view[s]” and “extreme position[s]” aimed at curtaining the Religion Clauses’ protection of religious employers. Yet again the EEOC filed an amicus brief in the Ninth Circuit against the Catholic school in Biel v. St. James School — the companion case to Our Lady of Guadalupe. 

Only after the Our Lady of Guadalupe decision did the EEOC include the ministerial exception in its guidance regarding religious discrimination. The manual instructs its staff to “resolv[e]” church autonomy questions “at the earliest possible stage before reaching [an] underlying discrimination claim.” EEOC Compliance Manual § 12-I.C.2 (2021). Notably, the manual cites both the Supreme Court cases and the circuit cases in which we won. 

Did the Biden-Harris administration heed its own guidance that the ministerial exception issues should be resolved “at the earliest possible stage?” In Garrick v. Moody Bible Institute, after a former instructor obtained a right to sue letter from the EEOC, she sued the college under Title VII. The college argued that her claims were actually for discrimination based on religious beliefs, and that the college’s First Amendment defense should be adjudicated before intrusive and expensive discovery. The EEOC filed an amicus brief in the Seventh Circuit, advocating for dismissal of the college’s appeal, instead of supporting it, as its manual advises. Unfortunately, the Seventh Circuit agreed with the EEOC. 

The problems with the EEOC’s approach are many, as we explained in our amicus brief in a similar case, Faith Bible Chapel International v. Tucker, holding that appeal of a denial of a ministerial exception defense had to wait until after the trial. We argued on behalf of multiple religious denominations with houses of worship and schools that religious education is at the heart of their missions, but only valuable if it accurately reflects a religious group’s beliefs. To ensure the right message is delivered, religious educational institutions must be able to choose their speakers. Fear of litigation has no place in choosing such messengers.

Yet, completely distorted incentives for such religious institutions are the effect of the EEOC’s position and decisions. They prevent dismissal of the suit at the outset, even if there is a ministerial exception or another First Amendment defense. And that is costly and intrusive. 

Most religious employers will eventually face litigation from a disgruntled current or former employee. Even if an employment discrimination case is frivolous, the typical cost of defending and/or settling one is $160,000. Few religious groups can withstand such burdens. Most houses of worship in this country have fewer than 100 attendees at a typical worship service, and nearly 90 percent have fewer than 250. For such small groups, fighting an employment lawsuit is ruinous.

The disruption goes further. Plaintiffs can probe deeply into a religious organization’s confidential records and communications. Thus, rational actors within religious organizations are coerced into making religious decisions based on litigation threats and not on their own religious assessment. These harms to religious freedoms are happening now, with the EEOC’s encouragement, backed by the power of the federal government.

The Pregnant Workers Fairness Act (PWFA) is the latest example of this EEOC’s disregard of the First Amendment protections. The EEOC refused to state that the ministerial exception bars PWFA claims for qualifying ministerial employees. Instead, it will apply the exception on a case-by-case basis in light of the facts. But this “standard” can only lead to prolonged litigation with the burdens we have already witnessed. 

Perhaps even more concerning is that Harris’ hostility toward religion goes both ways. As a U.S. senator, Harris attacked a Trump nominee’s qualifications and impartiality based on his membership in the Knights of Columbus. Harris seeks to undermine and weaken religious institutions while barring religious people from serving in government solely based on their religious views.

With another four years of a Harris administration, religious organizations can expect to continue to suffer from intrusive, expensive, and time-consuming lawsuits; unfortunately, such harm is irreparable.

Victoria Dorfman is a partner at Jones Day.