미국 노동법상 성직자의 근로자성과 성직자 예외원칙

The First Amendment of the U.S. Constitution declares strict separation of religion and state. The religious freedom that this principle seeks to protect is being realized specifically by the Establishment Clause and the Free Exercise Clause, and several problems are revealed in the process. The first is the clash between the Establishment Clause and the Free Exercise Clause following the inherent limitations of the separation of church and state, the second is the legislature's retort on the ruling made of the judiciary by making new laws, and the third is the excessive restriction of basic rights, including restrictions on freedom of speech of religious people. The way in which the Supreme Court rules on the decision of clergymen is the primary duties test based on the analysis of the totality of the circumstances (the totality of the circumstances analysis). Under the method, the court comprehensively evaluates whether the plaintiff is a clergyman by assessing the role and importance of the so-called clerical position of him, but the difficulty of distinguishing between non-religious and purely religious activities and the lack of the method of assessing the qualitative importance of the clergy have the disadvantage of making an error in the evaluation of the clergy status. Regarding the employee status of clergy under the U.S. labor and employment laws, any individual law does not provide an exception to certain people or organizations such as religious people or groups, which in principle recognizes the employee status of clergy. However, the court avoids the judgment of the employee status of clergy by applying the ministerial exception if the plaintiff is a clergyman. The ministerial exception here is the theory that the state should refrain from legal enforcement in respect of freedom of religion and autonomy held by religious institutions in accordance with the Establishment Clause and the Free Exercise Clause. In the name of freedom of religion, this doctrine legalized various acts of discrimination based on such as sex, race and age in the church, which resulted in protecting freedom of religion, but not protecting the rights of clergy as an employee. Under the ministerial exception, it is debatable that in order to be protected under labor and employment laws against religious employers such as churches and other religious groups, a clergy plaintiff must first tolerate the ministerial exception and prove that he is not a clergyman. In case of Korea, since freedom of religion and the principle of separation between religion and politics have traditionally been closely related to each other, and since they are some kinds of relative rights loosely applied under the Constitution, it seems unlikely that the ministerial exception will be applied and it can be controlled in the specific scope. On the other hand, in contrast of inclination business, there is a difference in the fact that the dismissal of a worker at an inclination business entity is subject to certain restrictions, such as the existence of legitimate reasons in Article 23 section 1 of the Labor Standards Act, as long as the employee is a clergy.