Rweyemamu v. Cote, No. 06-1041 (2d Cir. 2008)

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06-1041-cv Rweyemamu v. Cote 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2006 (Argued: October 26, 2006 Decided: March 21, 2008) Docket No. 06-1041-cv -----------------------------------------------------x JUSTINIAN RWEYEMAMU and BUGURUKA ORPHANS & COMMUNITY ECONOMIC DEVELOPMENT, INC., Plaintiffs-Appellants, -- v. -MICHAEL COTE, Bishop of Diocese of Norwich, and NORWICH ROMAN CATHOLIC DIOCESAN CORPORATION, Defendants-Appellees. -----------------------------------------------------x B e f o r e : CARDAMONE, WALKER, and STRAUB, Circuit Judges. Appeal from a judgment of the United States District Court 26 for the District of Connecticut (Warren W. Eginton, Judge) 27 concluding that the ministerial exception to Title VII barred 28 plaintiff s suit and granting defendants motion to dismiss for 29 lack of jurisdiction. 30 as applied in this case and that the ministerial exception bars 31 plaintiff s claim. 32 AFFIRMED. We hold that Title VII is unconstitutional 33 34 35 36 NORMAN A. PATTIS, Bethany, Conn., for PlaintiffsAppellants. -1- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MEREDITH G. DIETTE, Brown Jacobson P.C., Norwich, Conn., for Defendants-Appellees. MICHAEL L. COSTELLO, Tobin & Dempf (Mark E. Chopko, Jeffrey Hunter Moon, United States Conference of Catholic Bishops, Wash., D.C., on the brief), Albany, N.Y., for Amici Curiae the Salvation Army National Corporation, the General Council on Finance and Administration of the United Methodist Church, the Church of Jesus Christ of Latter-Day Saints, the Lutheran ChurchMissouri Synod, the International Church of the Foresquare Gospel, the General Conference of Seventh-Day Adventists, and the United States Conference of Catholic Bishops. JOHN M. WALKER, JR., Circuit Judge: Alleging that the Roman Catholic Diocese of Norwich, through 27 its Bishop, misapplied canon law in denying him a requested 28 promotion and, ultimately, in terminating him, Father Justinian 29 Rweyemamu, an African-American Catholic priest, claims racial 30 discrimination in a Title VII suit against the Bishop and the 31 Diocese. 32 the ministerial exception, Father Justinian appealed. 33 question we must decide is whether, under the First Amendment, 34 Title VII is unconstitutional as applied in this case. 35 reaching this constitutional question, we distinguish this case 36 from our decision in Hankins v. Lyght, 441 F.3d 96, 99 (2d Cir. After the district court dismissed the suit pursuant to -2- The In 1 2006), which held that a federal statute, the Religious Freedom 2 Restoration Act (RFRA) of 1993, 42 U.S.C. §§ 2000bb, 2000bb-1 to 3 -4, governed the merits of an age discrimination action against a 4 church. 5 BACKGROUND 6 As this case comes to us after the denial of a motion to 7 dismiss, we accept the facts as they are alleged in the 8 complaint. Almonte v. City of Long Beach, 478 F.3d 100, 104 (2d 9 Cir. 2007). Father Justinian is an ordained priest of the Roman 10 Catholic Church and the founder of Bugurka Orphans and Community 11 Economic Development, Inc. (BOCED), a nonprofit organization. 12 Prior to his dismissal, Father Justinian served for five years as 13 parochial vicar at St. Bernard s Church in Rockville, 14 Connecticut. 15 In April 2004, Father Justinian applied to be parish 16 administrator of St. Bernard s, but he was not selected; the 17 Diocese selected a white man instead. 18 Justinian sought other promotions but was equally unsuccessful. 19 Thereafter, Father Concerned that the Diocese, through its Bishop, Michael 20 Cote, had discriminated against him on the basis of his race, 21 Father Justinian complained to church officials, arguing that 22 Bishop Cote had failed to follow canon law in staffing the 23 vacancies. 24 Opportunities Commission (EEOC) and the Connecticut Commission on He also filed claims with the Equal Employment -3- 1 Human Rights and Opportunities (CHRO), the state analogue to the 2 EEOC. 3 In December 2004, the CHRO dismissed Father Justinian s 4 complaint for lack of jurisdiction based on a constitutionally 5 grounded ministerial exception, a decision ultimately affirmed by 6 the Connecticut Court of Appeals. 7 Human Rights & Opportunities, 911 A.2d 319 (Conn. App. Ct. 2006), 8 appeal denied, 916 A.2d 51 (Conn. 2007), cert. denied, 128 S. Ct. 9 206 (2007). See Rweyemamu v. Comm n on One month after the CHRO dismissed Father 10 Justinian s complaint, Bishop Cote terminated Father Justinian s 11 employment. 12 authorities, but again without success. 13 Clericis in Rome found that there was just cause for Father 14 Justinian s removal for several reasons, including complaints 15 regarding his homilies, complaints regarding his interaction with 16 parish staff, . . . and the necessity of giving a unified and 17 positive witness to the people of the parish. 18 20042458 (Sept. 6, 2005); see also id. (stating that [t]estimony 19 in this case indicates that Father [Justinian] Rweyemamu was not 20 sufficiently devoted to ministry because his work with BOCED 21 interfere[d] with [his] full-time parochial duties ). 22 Father Justinian again appealed to higher church The Congregatio Pro Prot. No. After the adverse ruling in Rome, Father Justinian filed 23 suit in the United States District Court for the District of 24 Connecticut, claiming that the Diocese and Bishop Cote had -4- 1 violated Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and alleging 2 a variety of state-law causes of action, including intentional 3 infliction of emotional distress, tortious interference with 4 business relations, and defamation, the latter causes of action 5 arising from Bishop Cote s public statements concerning Father 6 Justinian s involvement with BOCED. 7 district court (Warren W. Egington, Judge) dismissed Father 8 Justinian s complaint for lack of jurisdiction. 9 court concluded that [t]he Free Exercise Clause of the First Upon defendants motion, the The district 10 Amendment, . . . [through] the ministerial exception, preserves 11 a religious institution s right to be free from governmental 12 entanglement [with the] management of its internal affairs. 13 Rweyemamu v. Cote, No. 3:05CV00969, 2006 WL 306654, at *3 (D. 14 Conn. Feb. 8, 2006). Father Justinian now appeals that decision. ANALYSIS 15 16 We review a district court s decision to grant a motion to 17 dismiss de novo. Marsh v. Rosenbloom, 499 F.3d 165, 172 (2d Cir. 18 2007). 19 recent decision of this court, Hankins v. Lyght, 441 F.3d 96 (2d 20 Cir. 2006), eliminated the ministerial exception in employment 21 cases governed by federal law, such as Title VII. 22 Father Justinian maintains, requires us to vacate the district 23 court s judgment. 24 I. On appeal, Father Justinian argues principally that a We disagree. Hankins v. Lyght and the Application of RFRA -5- Hankins, 1 We reach the question of the ministerial exception and 2 decide this case on constitutional grounds notwithstanding our 3 decision in Hankins, in which a panel of this court decided a 4 similar case on statutory grounds, by holding that RFRA applied 5 as a defense to the plaintiff s discrimination claim. 6 v. Nw. Indian Cemetary Protective Ass n, 485 U.S. 439, 445 (1988) 7 ( A fundamental and longstanding principle of judicial restraint 8 requires that courts avoid reaching constitutional questions in 9 advance of the necessity of deciding them. ). Cf. Lyng The statutory 10 argument is not available in this case because defendants 11 knowingly and expressly waived a RFRA defense. 12 In Hankins, a clergy member who was forced to retire at the 13 age of seventy brought suit against his church and bishop under 14 the Age Discrimination in Employment Act (ADEA) of 1967, 29 15 U.S.C. §§ 621-634. 16 Federal Rule of Civil Procedure 12(b)(6) based on a ministerial 17 exception to the ADEA -- a rule adopted by several circuits that 18 civil rights laws cannot govern church employment relationships 19 with ministers without violating the free exercise clause because 20 they substantially burden religious freedom. 21 at 100. 22 the dispute rested not on ministerial exception grounds but on 23 its determination that RFRA govern[ed] the merits of the 24 principal issue raised by the parties. The district court dismissed the claim under Hankins, 441 F.3d On appeal, however, the Hankins court s resolution of -6- Id. at 99. The court 1 vacated the dismissal of the complaint and remanded for the 2 district court to decide whether applying the ADEA to the 3 church s action would violate RFRA. See id. 4 RFRA was enacted as a response to the Supreme Court s 5 watershed decision in Employment Division v. Smith, 494 U.S. 872 6 (1990). 7 substantive change in constitutional protections. 8 Boerne v. Flores, 521 U.S. 507, 532 (1997). 9 restore the legal standard that was applied before Smith, see 10 H.R. Rep. No. 103-88, at 6-7 (1993); see also S. Rep. No. 103- 11 111, at 8 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1897-98, 12 specifically the compelling interest test as set forth in 13 Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 14 406 U.S. 205 (1972), 42 U.S.C. § 2000bb(b)(1). 15 In passing RFRA, Congress sought to effect a City of Congress intended to In Smith, the Court noted that its decisions have 16 consistently held that the right of free exercise does not 17 relieve an individual of the obligation to comply with a valid 18 and neutral law of general applicability on the ground that the 19 law proscribes (or prescribes) conduct that his religion 20 prescribes (or proscribes). 21 marks omitted). 22 and Yoder, confining the former to its facts, see id. at 884-85, 23 while holding that the latter involved more than just the right 24 to free exercise of religion, see id. at 881 (discussing the 494 U.S. at 879 (internal quotation In doing so, the Court distinguished Sherbert -7- 1 Free Exercise Clause in conjunction with other constitutional 2 protections, such as the right of parents to direct the 3 education of their children). 4 5 6 7 8 9 10 11 In response to Smith, RFRA provides, in pertinent part that: Government may substantially burden a person s exercise of religion only if it demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 12 42 U.S.C. § 2000bb-1(b); see also id. § 2000bb-1(a) (providing 13 that RFRA applies even if the burden results from a rule of 14 general applicability, except as provided in subsection (b) of 15 this section ). 16 in violation of RFRA may assert that violation as a claim or 17 defense in a judicial proceeding and obtain appropriate relief. 18 Id. § 2000bb-1(c); see Gonzales v. O Centro Espirita Beneficente 19 Uniao do Vegetal, 546 U.S. 418, 424 (2006). 20 A person whose religious practices are burdened RFRA is unusual in that it amends the entire United States 21 Code. See 42 U.S.C. § 2000bb-3(a) ( This chapter applies to all 22 Federal law, and the implementation of that law, whether 23 statutory or otherwise . . . . ); see also Eugene Gressman, RFRA: 24 A Comedy of Necessary and Proper Errors, 21 Cardozo L. Rev. 507, 25 526 (1999) (calling RFRA an amendment to every federal law and 26 regulation in the land ). 27 whatever other statutes may (or may not) say, the Federal At bottom, the import of RFRA is that, -8- 1 Government may not, as a statutory matter, substantially burden a 2 person s exercise of religion. 3 424 (emphasis added);1 cf. EEOC v. Catholic Univ. of Am., 83 F.3d 4 455, 470 (D.C. Cir. 1996)(noting that Congress has at least the 5 facial authority to determine against whom, and under what 6 circumstances, Title VII and other federal laws will be 7 enforced ). 8 court when it expressly held that RFRA amended the ADEA: It is 9 obvious to us that because Congress had the power [under the 10 Commerce Clause] to enact the ADEA, it also had the power to 11 amend that statute by passing the RFRA. O Centro Espirita, 546 U.S. at This aspect of RFRA was acknowledged by the Hankins 441 F.3d at 106. 12 In so holding, the Hankins court began its analysis by 13 addressing whether the church and bishop had waived any reliance 14 upon RFRA as a defense to the plaintiff s action. 15 the defendants mentioned RFRA only in passing in their original 16 appellate brief, arguing that the ADEA was an unlawful burden on 17 their religious activities and that Congress has enacted the 18 RFRA, a statute that applied to all federal laws, for this very 19 reason. 20 this seemingly dispositive but otherwise unmentioned statute. 21 Id. 1 2 3 4 Id. at 104. In that case, The court asked for further briefing on Defendants supplemental brief, however, explicitly 1 The Senate Report is explicit on this score; Congress passed RFRA because state and local legislative bodies could not be relied upon to craft [satisfactory] exceptions from laws of general application. S. Rep. No. 103-111, at 8. -9- 1 disclaimed any intention of raising a RFRA defense and asserted 2 RFRA s inapplicability because the case at bar is a matter 3 relating to a private employment situation and does not involve 4 actions by the government. 5 omitted). 6 Id. (internal quotation marks The Hankins panel nevertheless held that the defendants had 7 not waived a RFRA defense because they argued in the district 8 court and here -- and continue to argue -- that application of 9 the ADEA to the relationship between their church and appellant 10 substantially burdens their religion. 11 argued the substance of a RFRA defense. 12 at 111 (Sotomayor, J., dissenting) (noting that invocation of 13 First Amendment rights does not necessarily implicate RFRA). 14 Refuting the defendants argument that RFRA did not apply to 15 their case in any event because it concerned a dispute between 16 purely private parties and did not involve the government, the 17 Hankins court held that RFRA applied because the federal statute 18 at issue (the ADEA) was enforceable by a government agency (the 19 EEOC); the government therefore could have been a party to the 20 suit, and the court reasoned that the application of RFRA should 21 not vary depending on whether the party actually bringing suit is 22 a private party or the EEOC: 23 24 25 26 Id. In short, they had See id. But see id. The ADEA is enforceable by the EEOC as well as private plaintiffs, and the substance of the ADEA s prohibitions cannot change depending on whether it is enforced by the EEOC or an aggrieved private party. An action brought by an -10- 1 2 3 4 5 6 agency such be asserted or the ADEA decision on as the EEOC is clearly one in which the RFRA may as a defense, and no policy of either the RFRA should tempt a court to render a different the merits in a case such as the present one. Id. at 103 (citation omitted). 7 Notwithstanding our own doubts about Hankins s determination 8 that RFRA applies to actions between private parties when the 9 offending federal statute is enforceable by a government agency,2 10 there is no need for us to wrestle with RFRA s applicability 11 because the defendants in this case, unlike in Hankins, have 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 2 First, we think the text of RFRA is plain, see Leocal v. Ashcroft, 543 U.S. 1, 8 (2004) ( Our analysis begins with the language of the statute. ), in that it requires the government to demonstrate that application of a burden to a person is justified by a compelling governmental interest. See 42 U.S.C. § 2000bb1(b) (stipulating that government may only burden a person s exercise of religion if it demonstrates that it is necessary (emphasis added)); Hankins, 441 F.3d at 114-15 (Sotomayor, J., dissenting) ( The statute defines demonstrate as meet[ing] the burdens of going forward with the evidence and of persuasion. 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot go[] forward with any evidence. ). Thus, we do not understand how it can apply to a suit between private parties, regardless of whether the government is capable of enforcing the statute at issue. See also 42 U.S.C. § 2000bb-1(c) (providing for appropriate relief against a government (emphasis added)); Tomic v. Catholic Diocese, 442 F.3d 1036, 1042 (7th Cir. 2006), cert. denied, 127 S. Ct. 190 (2006); Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1121 (9th Cir. 2000) (suggesting that RFRA should not apply to suits between private parties); Redhead v. Conference of Seventh-Day Adventists, 440 F. Supp. 2d 211, 218 (E.D.N.Y. 2006). Second, there are strong policy reasons not to apply RFRA to an action by a private party seeking relief against another private party. RFRA does not apply to state law. Boerne, 521 U.S. 507. Thus, disparate treatment of federal- and state-law claims is assured -- consideration of the former under RFRA and the latter under NLRB v. Catholic Bishop, 440 U.S. 490 (1979); cf. Hutchison v. Thomas, 789 F.2d 392 (6th Cir. 1986) (dismissing common law claims under ministerial exception). -11- 1 2 waived a RFRA defense. Under Hankins, 3 4 5 6 7 8 9 10 441 F.3d at 104. 11 in their motion to dismiss before the district court, nor did 12 they ever argue that Title VII substantially burdens their 13 religion. 14 entirely on the ministerial exception and the Free Exercise 15 Clause s requirement that churches be free from government 16 interference in matters of church governance and administration. 17 On appeal, defendants argument is again rooted in the First 18 Amendment and the ministerial exception: The First Amendment . . 19 . protects employment decisions made by religious institutions 20 regarding ministerial employees from governmental oversight, 21 including judicial review. 22 11-15. 23 [a] party may certainly waive or forfeit a RFRA defense by failing to argue that a law or action substantially burdens the party s religion. . . . Where a party fails to assert a substantial burden on religious exercise before a district court, therefore, the party may not raise that issue . . . for the first time on appeal. Here, the defendants never once mentioned RFRA Their arguments to the district court were premised Appellees Br. at 8; see also id. at Moreover, defendants brief states that Hankins should not 24 apply because the Diocese has not raised a RFRA defense, and 25 [t]he provisions of RFRA . . . may be waived. 26 goes on to affirmatively assert: The defendants[] explicitly 27 waive a RFRA defense in this matter. 28 added). Id. at 18. Id. at 23 n.7 (emphasis While the last section of their brief contains an -12- It 1 argument that Title VII imposes a substantial burden on their 2 exercise of religion, see id. at 22-25, defendants were forced to 3 make this argument because Hankins had come down after their 4 district court proceedings. 5 RFRA defense might be considered notwithstanding an express 6 waiver by the church, defendants plainly presented their RFRA- 7 based argument to cover the possibility that this panel would 8 decide to follow the Hankins panel s analysis: However, and in 9 light of the Hankins decision, should this Court find that the 10 defendants[] implicitly raise [a RFRA] defense, the defendants 11 include here the analysis of said defense. 12 also id. at 22 (presenting a RFRA analysis only [s]hould the 13 Hankins decision control this case ). 14 Recognizing Hankins s holding that a Id. at 23 n.7; see Because the defendants explicitly waived any defense based 15 on a violation of RFRA after they became aware of Hankins, we 16 find that they executed an effective waiver of a known right. 17 See Curtis Publ g Co. v. Butts, 388 U.S. 130, 143 (1967) ( [A]n 18 effective waiver must . . . be one of a known right or 19 privilege. (citation omitted)); cf. id. at 145 ( We would not 20 hold that Curtis waived a known right before it was aware of 21 the New York Times decision. ). 22 the primary grounds argued by the parties -- the application of 23 the ministerial exception -- and need not further address 24 Hankins s treatment of RFRA, as that statute is not at issue We therefore analyze the case on -13- 1 here. 2 II. The Ministerial Exception 3 A. The Roots of the Ministerial Exception 4 Since at least the turn of the century, courts have declined 5 to interfere[] with ecclesiastical hierarchies, church 6 administration, and appointment of clergy. 7 Annual Conference of the United Methodist Church, 894 F.2d 1354, 8 1357 (D.C. Cir. 1990) (internal quotation marks omitted);3 see 9 also Douglas Laycock, Towards a General Theory of the Religion Minker v. Balt. 10 Clauses: The Case of Church Labor Relations and the Right to 11 Church Autonomy, 81 Colum. L. Rev. 1373, 1403 (1981). 12 have done so remains a matter of some debate. 13 Corbin, Above the Law? The Constitutionality of the Ministerial 14 Exemption from Antidiscrimination Law, 75 Fordham L. Rev. 1965, 15 1977-81 (2007). 16 autonomy secured by the Free Exercise Clause. 17 Petruska v. Gannon Univ., 462 F.3d 294, 306 (3d Cir. 2006) ( The 18 Free Exercise Clause protects not only the individual s right to 19 believe and profess whatever religious doctrine one desires, but 20 also a religious institution s right to decide matters of faith, 1 2 3 4 5 6 Why they See Caroline Mala Some courts have stressed the right to church 3 See, e.g., This line of cases stretches back to Watson v. Jones, 80 U.S. 679, 727 (1871); see also Jones v. Wolf, 443 U.S. 595, 602 (1979); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-10 (1976); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 107-10 (1952); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929). -14- 1 doctrine, and church governance. (internal quotation marks and 2 citation omitted)), cert. denied, 127 S. Ct. 2098 (2007); Combs 3 v. Cent. Tex. Annual Conference of the United Methodist Church, 4 173 F.3d 343, 349 (5th Cir. 1999); Catholic Univ., 83 F.3d at 5 462. 6 Others have emphasized that taking sides in a religious 7 dispute would lead an Article III court into excessive 8 entanglement in violation of the Establishment Clause. 9 e.g., Tomic, 442 F.3d at 1038 ( A suit to remove a priest on the See, 10 ground that he is a heretic, or to reinstate a parishioner who 11 has been excommunicated, . . . has never been justiciable in the 12 federal courts. ); Gellington v. Christian Methodist Episcopal 13 Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000); Scharon v. 14 St. Luke s Episcopal Presbyterian Hosps., 929 F.2d 360, 363 (8th 15 Cir. 1991); cf. Commack Self-Serv. Kosher Meats, Inc. v. Weiss, 16 294 F.3d 415, 427 (2d Cir. 2002). 17 Thus, the ministerial exception cannot be ascribed solely to 18 judicial self-abnegation. Cf. Watson, 80 U.S. at 729 ( It is not 19 to be supposed that the judges of the civil courts can be as 20 competent in the ecclesiastical law and religious faith of all 21 these bodies as the ablest men in each are in reference to their 22 own. ). 23 so because the presumptively appropriate remedy in a Title VII 24 action is reinstatement, see Brooks v. Travelers Ins. Co., 297 It is also required by the Constitution. -15- This must be 1 F.3d 167, 170 (2d Cir. 2002), but it would surely be 2 unconstitutional under the First Amendment to order the Catholic 3 Church to reinstate, for example, a priest whose employment the 4 Church had terminated on account of his excommunication based on 5 a violation of core Catholic doctrine. 6 Finally, some courts have explained that [t]he right to 7 choose ministers without government restriction underlies the 8 well-being of religious communit[ies]. 9 Conference of Seventh-Day Adventists, 772 F.2d 1164, 1167-68 (4th Rayburn v. Gen. 10 Cir. 1985); cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 11 (2000); Corp. of the Presiding Bishop of the Church of Jesus 12 Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 341-42 (1987) 13 (Brennan, J., concurring). 14 Wherever its doctrinal roots may lie, the ministerial 15 exception is well entrenched; it has been applied by circuit 16 courts across the country for the past thirty-five years. 17 e.g., Hollins v. Methodist Healthcare, Inc., 474 F.3d 223 (6th 18 Cir.), cert. denied, 128 S. Ct. 134 (2007); Petruska, 462 F.3d 19 294; Tomic, 442 F.3d 1036; Elvig v. Calvin Presbyterian Church, 20 375 F.3d 951 (9th Cir. 2004); Bryce v. Episcopal Church in the 21 Diocese, 289 F.3d 648 (10th Cir. 2002); EEOC v. Roman Catholic 22 Diocese, 213 F.3d 795 (4th Cir. 2000); Gellington, 203 F.3d 1299; 23 Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999); Catholic Univ., 24 83 F.3d 455; Scharon, 929 F.2d 360; Natal v. Christian & -16- See, 1 Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989).4 2 The Fifth Circuit was the first circuit court formally to 3 announce a ministerial exception. See McClure v. Salvation 4 Army, 460 F.2d 553 (5th Cir. 1972). In McClure, the court 5 reviewed a sex discrimination claim brought by Billie B. McClure, 6 an employee and minister of the Salvation Army. 7 Title VII on its face appeared to apply to the Salvation Army, 8 the court consider[ed] . . . the constitutional issue, id. at 9 558, and all-but held Title VII unconstitutional as applied, id. Noting that 10 at 560 ( An application of the provisions of Title VII . . . 11 [would] cause the State to intrude upon matters of church 12 administration and government which have so many times before 13 been proclaimed to be matters of a singular ecclesiastical 14 concern. ). 15 did not intend, through the non-specific wording of the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 4 Ultimately, the court simply stated that Congress The circuits have, however, taken different approaches in their application of the ministerial exception. Four circuits have treated the exception as an affirmative defense that can be raised on a motion to dismiss pursuant to Rule 12(b)(6). See, e.g., Petruska, 462 F.3d at 302; Bryce, 289 F.3d at 654; Bollard v. Cal. Province of the Soc y of Jesus, 196 F.3d 940, 951 (9th Cir. 1999); Natal, 878 F.2d at 1578. Two circuits have construed the ministerial exception as jurisdictional in nature and an appropriate ground for a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). See, e.g., Hollins, 474 F.3d at 225; Tomic, 442 F.3d at 1038. And two circuits have treated the exception as a command to interpret Title VII not to apply to claims between a church and its ministers. See, e.g., Gellington, 203 F.3d at 1302-04; McClure v. Salvation Army, 460 F.2d at 560 (5th Cir. 1972); cf. Hankins, 441 F.3d at 117-18 (Sotomayor, J., dissenting). -17- 1 applicable provisions of Title VII, to regulate the employment 2 relationship between church and minister. 3 Id. at 560-61.5 It should be noted that the term ministerial exception is 4 judicial shorthand, but like any trope, while evocative, it is 5 imprecise. 6 ministers, see Tomic, 442 F.3d at 1040-41 (applying exception 7 to organist/music director); Alicea-Hernandez v. Catholic Bishop, 8 320 F.3d 698, 704 (7th Cir. 2003) (press secretary); Roman 9 Catholic Diocese, 213 F.3d at 803-04 (director of music The ministerial exception protects more than just 10 ministries), and it is not confined to the Christian faith, see 11 Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 12 309-11 (4th Cir. 2004) (applying exception to staff of Jewish 13 nursing home). 14 absolute exception, it is not always a complete barrier to suit; 15 for example, a case may proceed if it involves a limited inquiry 16 that, combined with the ability of the district court to control 17 discovery, can prevent a wide-ranging intrusion into sensitive 1 2 3 4 5 6 7 8 9 10 11 12 13 5 Moreover, although its name might imply an Subsequent courts have vacillated, with some abjuring constitutional decision-making and relying solely upon the canon of constitutional avoidance, see, e.g., Hankins, 441 F.3d at 118 n.13 (Sotomayor, J., dissenting) ( I would apply Catholic Bishop s principles of statutory construction so as to avoid making definitive pronouncements on the constitutional question. ), some deciding that particular anti-discrimination laws are unconstitutional as applied under certain circumstances, see, e.g., Gellington, 203 F.3d at 1304 ( [T]he Free Exercise and Establishment Clauses of the First Amendment prohibit a church from being sued under Title VII by its clergy. ); Combs, 173 F.3d at 351, and some doing one while making a pretense of the other, see, e.g., Scharon, 929 F.2d at 361-63. -18- 1 religious matters. Bollard v. Cal. Province of the Soc y of 2 Jesus, 196 F.3d 940, 950 (9th Cir. 1999). 3 B. The Ministerial Exception in the Second Circuit 4 This court has had no prior occasion to confirm the 5 existence of the ministerial exception, and rarely an opportunity 6 to discuss its scope. 7 Archdiocese v. Culvert, 753 F.2d 1161 (2d Cir. 1985), we 8 considered the legitimacy of an inquiry by the New York State 9 Labor Relations Board into the allegedly anti-union practices of In Catholic High School Ass n of the 10 certain parochial schools with respect to their lay employees. 11 We permitted the State Board to proceed after concluding that all 12 it could do was order an employer who refuses to bargain in good 13 faith to return and bargain on the mandatory bargaining subjects, 14 all of which are secular. 15 that the First Amendment prohibits . . . [the courts] from 16 inquiring into an asserted religious motive to determine whether 17 it is pretextual. 18 Board . . . may order reinstatement of a lay teacher at a 19 parochial school only if he or she would not have been fired 20 otherwise for asserted religious reasons. 21 Id. at 1167. Id. at 1168. We explained, however, And we expressly noted that the Id. at 1169. In DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir. 22 1993), a Mormon high school asked us to pretermit the age 23 discrimination claim of a lay teacher. 24 the ADEA was not broadly inapplicable to parochial schools. -19- We first confirmed that See 1 id. at 169-70.6 2 cases involving lay employees in which the relationship between 3 employee and employer is so pervasively religious that it is 4 impossible to engage in an age-discrimination inquiry without 5 serious risk of offending the Establishment Clause[,] . . . 6 [t]his [wa]s not such a case. 7 conclusion in Catholic High School that courts may pretermit any 8 plausibility inquiry [because such an inquiry] could give rise 9 to constitutional problems where, as in the case at bar, a We next explained that while [t]here may be Id. at 172. We reiterated our 10 defendant proffers a religious purpose for a challenged 11 employment action. 12 Id. at 171. Thus, our limited precedent to date supports the following 13 propositions: (1) Title VII and the ADEA are not inapplicable to 14 religious organizations as a general matter; (2) we will permit 15 lay employees - but perhaps not religious employees - to bring 16 discrimination suits against their religious employers; and (3) 17 even when we permit suits by lay employees, we will not subject 18 to examination the genuineness of a proffered religious reason 19 for an employment action. 20 1 2 3 4 5 6 Presented with this occasion to formally adopt the 6 We also noted that the legislative history of Title VII makes clear that Congress formulated the limited exemptions for religious institutions to discrimination based on religion with the understanding that provisions relating to non-religious discrimination would apply to such institutions. DeMarco, 4 F.3d at 173. -20- 1 ministerial exception, we affirm the vitality of that doctrine in 2 the Second Circuit. 3 constitutionally required by various doctrinal underpinnings of 4 the First Amendment. 5 In our view, the ministerial exception is The Free Exercise Clause protects a church s right to 6 decide matters of governance and internal organization. 7 Petruska, 462 F.3d at 307. 8 duties. 9 See, e.g., Catholic High School, 753 F.2d 1161 (discussing lay Some employees have only religious Others may be lay employees of a religious organization. 10 teachers). 11 duties. 12 religious the relationship between an employee and his employer, 13 the more salient the free exercise concern becomes. 14 Bagni, Discrimination in the Name of the Lord: A Critical 15 Evaluation of Discrimination by Religious Organizations, 79 16 Colum. L. Rev. 1514, 1539 (1979) (noting that [t]he relationship 17 between a church and its clergy and modes of worship and ritual 18 surely fall within the spiritual epicenter, which represents 19 the purely spiritual life of a church ). 20 Still others may have both secular and religious Cf. Hollins, 474 F.3d at 225-26. The more pervasively Cf. Bruce N. Circuit courts applying the ministerial exception have 21 consistently struggled to decide whether or not a particular 22 employee is functionally a minister. 23 304 n.6 (collecting cases). 24 consider the function of an employee, rather than his title or See Petruska, 462 F.3d at While we agree that courts should -21- 1 the fact of his ordination, see Elvig, 375 F.3d at 958 & n.3 2 (citing cases), we still find this approach too rigid as it fails 3 to consider the nature of the dispute. 4 lay employee s relationship to his employer may be so 5 pervasively religious that judicial interference in the form of 6 a discrimination inquiry could run afoul of the Constitution. 7 See 4 F.3d at 172. 8 hierarchy he may be, a plaintiff alleging particular wrongs by 9 the church that are wholly non-religious in character is surely As we noted in DeMarco, a At the same time, however high in the church 10 not forbidden his day in court. 11 by a falling gargoyle as he is about to enter the church may have 12 an actionable claim. 13 that plaintiff s breach of contract claim, which did not infringe 14 on employer s freedom to select ministers, survived motion to 15 dismiss based on ministerial exception); Minker, 894 F.2d at 16 1359-61; Rayburn, 772 F.2d at 1171 ( Like any other person or 17 organization, [churches] may be held liable for their torts and 18 upon their valid contracts. 19 subject to Title VII scrutiny, where the decision does not 20 involve the church s spiritual functions. ). 21 The minister struck on the head Cf. Petruska, 462 F.3d at 310 (concluding Their employment decisions may be And it is to the relevance of the type of claim asserted 22 that we now briefly turn. The Establishment Clause forbids 23 excessive government entanglement with religion. 24 Kurtzman, 403 U.S. 602, 613 (1971) (internal quotation marks and -22- Lemon v. 1 citation omitted). 2 government is placed in the position of deciding between 3 competing religious views -- or procedural -- where the state and 4 church are pitted against one another in a protracted legal 5 battle. 6 concern depends upon the claim asserted by the plaintiff. 7 Cf. DeMarco, 4 F.3d at 169-70 (distinguishing between the 8 ongoing government supervision of all aspects of employment 9 required by the NLRA and the limited inquiry entailed by the 10 ADEA); Bollard, 196 F.3d at 950; Geary v. Visitation of Blessed 11 Virgin Mary Parish Sch., 7 F.3d 324, 328 (3d Cir. 1993). 12 instance, as the First Circuit has noted, whatever their 13 emblemata, some claims may inexorably entangle us in doctrinal 14 disputes. 15 alleges, for instance, that his religious employer has deceived 16 him within the meaning of a state s common law of fraud, his case 17 is less likely to run afoul of the Establishment Clause. 18 Entanglement may be substantive -- where the Petruska, 462 F.3d at 311. Natal, 878 F.2d at 1577. The salience of this For By contrast, if a plaintiff Turning now to the particulars of Father Justinian s 19 complaint, we consider the constitutionality of Title VII as 20 applied to this case. 21 C. The Ministerial Exception and Father Justinian s Suit 22 We need not attempt to delineate the boundaries of the 23 ministerial exception here, as we find that Father Justinian s 24 Title VII claim easily falls within them. -23- Father Justinian is an 1 ordained priest of the Roman Catholic Church; his duties are 2 determined by Catholic doctrine and they are drawn into question 3 in this case. 4 claim, he must argue that the decision of the Congregatio Pro 5 Clericis was not only erroneous, but also pretextual. 6 argument cannot be heard by us without impermissible entanglement 7 with religious doctrine. 8 as applied in this case, Father Justinian s federal claim fails 9 at its inception. Furthermore, in order to prevail on his Title VII Such an Because Title VII is unconstitutional Cf. Petruska, 462 F.3d at 305 n.8 (citing 10 Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 11 (2006)). 12 With respect to the federal discrimination claim in 13 particular, this case is on all fours with Minker v. Baltimore 14 Annual Conference of the United Methodist Church. 15 a sixty-three-year-old Methodist minister alleged that he had 16 been denied a pastorship on account of his age and in violation 17 of the ADEA. 18 noted that [t]he 1984-88 version of the Book of Discipline 19 provide[s] that appointments must take into account . . . the 20 gifts and graces of a particular pastor. 21 court thereupon dismissed the suit, persuasively explaining that 22 it could not imagine an area of inquiry less suited to a 23 temporal court for decision [than] evaluation of the gifts and 24 graces of a minister. See Minker, 894 F.2d at 1355. Id. at 1357. -24- In that case, The D.C. Circuit Id. at 1356. The So, too, how are we, as 1 Article III judges, to gainsay the Congregatio Pro Clericis 2 conclusion that Father Justinian is insufficiently devoted to 3 ministry? 4 How are we to assess the quality of his homilies? Natal v. Christian & Missionary Alliance is equally 5 instructive on this point. There, a clergyman and his wife filed 6 suit against the Christian and Missionary Alliance (CMA) alleging 7 that the CMA had discharged him without cause. 8 F.2d at 1576. 9 suit, holding that the inquiry which Natal would have us 10 undertake into the circumstances of his discharge [would] 11 plunge[] an inquisitor into a maelstrom of Church policy, 12 administration, and governance. See Natal, 878 The First Circuit affirmed the dismissal of the Id. at 1578. 13 Finally, Simpson v. Wells Lamont Corp., 494 F.2d 490 (5th 14 Cir. 1974), also sheds light upon the justiciability of Father 15 Justinian s Title VII claim. 16 wife sued the North Mississippi Conference of the United 17 Methodist Church alleging that the latter had dismissed him 18 because of his views on race relations and because his wife 19 happened to be an African-American. 20 suit, concluding that a church s selection of its pastor could 21 not be reviewed by a civil court and that appellate procedure 22 within the church hierarchy was [plaintiff s] avenue for review. 23 Id. at 494. 24 In that case, a reverend and his The court dismissed the We therefore conclude, based on the facts of this case -- in -25- 1 particular, the nature of Father Justinian s duties and the basis 2 for his dismissal -- that the ministerial exception bars Father 3 Justinian s Title VII claim. 4 employment discrimination claim, Father Justinian also alleges 5 state-law claims of intentional infliction of emotional distress, 6 tortious interference with business relations, and defamation. 7 Because the district court properly dismissed Father Justinian s 8 federal discrimination claim pursuant to the ministerial 9 exception, it had no reason to exercise supplemental jurisdiction In addition to his federal 10 over his state-law claims. Accordingly, we affirm the district 11 court s dismissal of Father Justinian s state-law claims. 12 CONCLUSION 13 The judgment of the district court is hereby AFFIRMED. 14 -26-

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