                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2006

Petruska v. Gannon Univ
Precedential or Non-Precedential: Precedential

Docket No. 05-1222




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                                 PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                   No. 05-1222


             LYNETTE M. PETRUSKA,
                        Appellant

                         v.

  GANNON UNIVERSITY; THE BOARD OF TRUSTEES
  OF GANNON UNIVERSITY; WILLIAM I. ALFORD, II;
     ROBERT H. ALLSHOUSE; JOSEPH F. ALLISON;
   MICHAEL P. ALLISON, REV.; JAMES A. BALDAUF;
     L. SCOTT BARNARD; GEORGE J. BEHRINGER;
   ARNOLD E. BERGQUIST; LAWRENCE E. BRANDT,
   REV. MSGR.; ROBERT L. BRUGGER, REV. MSGR.;
 DONALD M. CARLSON; DANIEL C. CARNEVAL, D.O.;
    STEPHANIE DOMITROVICH, HON.; THOMAS L.
        DOOLIN; JAMES J. DURATZ; ANTOINE M.
  GARIBALDI; THOMAS C. GUELCHER; WILLIAM M.
  HILBERT, SR.; BRIAN J. JACKMAN; JAMES W. KEIM,
 JR.; MARY RITA KUHN, SR., SSJ; THOMAS J. LOFTUS;
      ANNE C. MCCALLION; JOSEPH T. MESSINA;
   MICHAEL J. NUTTALL; JOHN E. PAGANIE; DENISE
ILLIG ROBISON; JAMES J. RUTKOWSKI, JR.; JAMES A.
   SCHAFFNER; HELEN M. SCHILLING, M.D., D.D.S.;
  JOHN M. SCHULTZ, VERY REV.; ROBERT J. SMITH,
   REV. MSGR.; LAWRENCE T. SPEICE, REV. MSGR.;
 WILLIAM C. SPRINGER; JAMES G. TOOHEY; DONALD
 W. TRAUTMAN, BISHOP; ANASTASIA VALIMONT, SR.
        SSJ; RICARDA VINCENT, SR. SSJ; MELVIN
       WITHERSPOON; ALL OTHER KNOWN AND
 UNKNOWN MEMBERS OF THE BOARD OF TRUSTEES
 OF GANNON UNIVERSITY DURING THE TENURE OF
  DONALD W. TRAUTMAN, as members of the Board of
 Trustees of Gannon University; DAVID RUBINO, MSGR.,
    in their individual and official capacities; NICHOLAS
  ROUCH, REV., in their individual and official capacities


          On Appeal from the United States District Court
              for the Western District of Pennsylvania
                    (D.C. Civ. Action No. 04-80)
           District Judge: Honorable Sean J. McLaughlin


                 Argued October 20, 2005
 Before: SMITH, BECKER, and NYGAARD, Circuit Judges1

                      ( Filed: May 24, 2006)


 C. John Pleban (ARGUED)
 Pleban & Associates
 2010 South Big Bend Boulevard
 St. Louis, Missouri 63117

      1
        The Honorable Edward R. Becker authored this opinion,
but died before it was released.

                                 2
Attorney for Appellant

Evan C. Rudert (ARGUED)
Elderkin, Martin, Kelly & Messina
150 East 8th Street
Erie, Pennsylvania 16501

Kenneth W. Wargo
Frank L. Kroto, Jr. (ARGUED)
Quinn, Buseck, Leemhuis, Toohey & Kroto
2222 West Grandview Boulevard
Erie, Pennsylvania 16506-4508
Attorneys for Appellees

Phillip J. Murren
Ball, Murren & Connell
2303 Market Street
Camp Hill, Pennsylvania 17011
Attorney for Amicus-Appellee



                OPINION OF THE COURT


BECKER, Circuit Judge.

      The ministerial exception to Title VII, a doctrine adopted

by numerous courts, exempts religious organizations from



                              3
employment discrimination suits brought by ministers.

Grounded in the Establishment and Free Exercise Clauses of the

United States Constitution, the ministerial exception was created

to protect church autonomy and avoid entangling government in

religious affairs. This case requires us to determine the reach of

the ministerial exception in this Circuit.

       We adopt a carefully tailored version of the ministerial

exception. Where otherwise illegal discrimination is based on

religious belief, religious doctrine, or the internal regulations of

a church, the First Amendment exempts religious institutions

from Title VII. In such cases, restricting a church’s freedom to

select its ministers would violate the Free Exercise Clause by

inhibiting the church’s ability to express its beliefs and put them

into practice. Furthermore, questions about religious matters

would pervade litigation, entangling courts in ecclesiastical

matters and violating the Establishment Clause.

                                 4
       But where a church discriminates for reasons unrelated

to religion, we hold that the Constitution does not foreclose Title

VII suits. Employment discrimination unconnected to religious

belief, religious doctrine, or the internal regulations of a church

is simply the exercise of intolerance, not the free exercise of

religion that the Constitution protects.         Furthermore, in

adjudicating suits that do not involve religious rationales for

employment action, courts need not consider questions of

religious belief, religious doctrine, or internal church regulation,

a process that would violate the Establishment Clause by

entangling courts in religious affairs.

       Lynette Petruska brings suit against Gannon University,

a Catholic institution, and various Gannon University officials

(collectively, “Gannon”). She alleges in replete detail that

Gannon, acting without any religious or ecclesiastical

motivation, demoted her because she is a woman and because

                                 5
 she opposed sexual harassment by Gannon officials.

          The District Court granted Gannon’s motion to dismiss

 Petruska’s Title VII claims under Federal Rule of Civil

 Procedure 12(b)(1), reasoning that the ministerial exception

 barred these claims. As we explain below, a motion such as

 Gannon’s is more properly dealt with under Rule 12(b)(6),

 which requires us to treat Petruska’s allegations as true.2

 Accordingly, we assume that Gannon lacked a religious

 rationale for Petruska’s demotion. We will therefore reverse the

 dismissal of her Title VII claims.

          Petruska also asserts state law causes of action for breach

 of contract, fraudulent misrepresentation, negligent supervision

 and retention, and civil conspiracy.          The District Court

 dismissed these claims under Rule 12(b)(1), reasoning that the

      2
        At all events, the District Court did not engage in
factfinding, and what we deal with here is functionally a Rule
12(b)(6) dismissal.

                                   6
 religion clauses removed jurisdiction. Reviewing the dismissal

 under Rule 12(b)(6), we cannot conclude at this stage of

 litigation that these claims will require an examination of

 matters of faith, doctrine, or internal church regulation.

 Therefore, they are not barred by the religion clauses.3

                                   I.

           The facts set forth below are drawn from Petruska’s First

 Amended Complaint, which we must accept as true for purposes

 of a Rule 12(b)(6) motion. Gannon University is a Catholic

 diocesan college located in Erie, Pennsylvania. Gannon hired

 Petruska as the university’s Director of Social Concerns in July

 of 1997. Petruska was appointed permanent chaplain on July 1,

 1999. She was to be the first female chaplain in Gannon’s


       3
        We will reverse the dismissal of Petruska’s state law
claims, with the exception of the fraudulent misrepresentation
claim. This claim was not pled with sufficient particularity under
Federal Rule of Civil Procedure 9(b).

                                   7
history.

       Prior to accepting the position, Petruska sought

assurances from Gannon’s President, David Rubino, that she

would not be replaced when Reverend Nicholas Rouch, a former

Gannon chaplain who had left to study in Rome, returned, or

when another male became available. She submits that she

requested these assurances due to: (1) a policy or practice of

gender discrimination at Gannon; (2) her knowledge that the

position of chaplain had been promised to Rouch upon his

return; and (3) the reputation of Bishop Donald Trautman, chair

of Gannon’s Board of Directors, for being unable to work with

women and for removing women from leadership positions.

Rubino assured Petruska that decisions regarding her tenure as

chaplain would be based solely on her performance, and not her

gender.

       Petruska’s role as chaplain was essentially that of a vice

                               8
president.   She served in a cabinet-level position on the

President’s staff and was co-chair of Gannon’s Catholic Identity

Task Force. Petruska’s religious duties included holding prayer

services and planning liturgies.

       Several months after Petruska’s appointment, in March

of 2000, Rubino was forced to take a leave of absence when he

was accused of having a sexual affair with a female subordinate.

 Rubino admitted the affair to various university officials.

Thereafter, a different female employee accused Rubino of

sexual harassment. Petruska was instrumental in bringing this

claim to the attention of Trautman and Provost Thomas

Ostrowski. Rubino resigned in May of 2000 and Ostrowski was

appointed acting President. At Trautman’s behest, Gannon then

began a campaign to conceal Rubino’s misconduct.

       Petruska served on Gannon’s Sexual Harassment

Committee as the university was in the process of revising its

                               9
 sexual harassment policy.       Although several of Gannon’s

 lawyers advocated limiting the time period in which grievances

 could be filed, Petruska opposed this proposal, and her view

 ultimately prevailed. Petruska was also involved in preparing a

 report that criticized Gannon’s discrimination and harassment

 policies.     Despite a request from Gannon’s President, the

 committee that prepared the report refused to modify portions

 criticizing the university.4

           In July of 2000, Ostrowski, then serving as acting

 President, met with Trautman, as well as Rouch, who had

 returned from Rome. Trautman told Ostrowski to place the

 Chaplain’s Division under the control of Rouch, thereby making

 Petruska Rouch’s subordinate. Ostrowski refused.

           Ostrowski told Petruska about Trautman’s plan and asked

       4
       Petruska also alleges that she challenged the propriety of
allowing a former Gannon priest, who was removed due to sexual
misconduct toward students, from returning to campus.

                                 10
Petruska how she would respond if the Chaplain’s Division were

placed under Rouch’s leadership.       According to Petruska,

Ostrowski conceded that the proposed action was being taken

solely on the basis of Petruska’s gender. Later, Ostrowski

“made it clear to [Petruska] that Trautman and Rouch would

never let her remain Chaplain at Gannon because of her gender.”

       In a January 2001 meeting, Ostrowski was informed that

once a new President was appointed, Trautman intended to

“clean house” by removing three high-ranking university

officials, all of whom were female: Petruska, the Executive

Director of Admissions, and the acting Provost. In May of

2001, Antoine Garibaldi was appointed President of Gannon.

As President, Garibaldi required Rouch’s approval of all

important decisions that Petruska, as chaplain, ordinarily made.

       In August of 2002, Garibaldi notified Petruska that he

had decided to restructure the university, that she would be

                              11
removed from the President’s Staff, and that the Chaplain’s

Division would report to Rouch. The effect of the restructuring

was to make Rouch Petruska’s boss.

       After a series of events convinced Petruska that she was

on the verge of being fired, she tendered her resignation in

October of 2002.       After Petruska’s resignation, Rouch

repeatedly told Gannon students and staff that a woman would

not be considered to replace Petruska as chaplain.

       Petruska filed this action in the District Court for the

Western District of Pennsylvania against Gannon University,

Gannon’s Board of Trustees, and various Gannon officials.

Petruska asserted six claims, naming some or all of the

defendants in the following counts: (1) Title VII sex

discrimination; (2) Title VII retaliation; (3) fraudulent

misrepresentation; (4) civil conspiracy; (5) breach of contract;

and (6) negligent supervision and retention. The District Court

                              12
 granted Gannon’s motion to dismiss the complaint under Federal

 Rule of Civil Procedure 12(b)(1), concluding that the religion

 clauses barred adjudication of Petruska’s claims.

                                 II.

           Federal courts have long struggled to balance state

 regulation and religious freedom. See, e.g., Serbian Orthodox

 Diocese v. Milivojevich, 426 U.S. 696 (1976).               In the

 employment context, the source of this conflict is readily

 apparent.      The government possesses a vital interest in

 promoting equality in the workplace, but this interest at times

 collides with the constitutional right of a religious institution to

  be free from excessive state interference.5 In balancing these

       5
        Compare Rayburn v. Gen. Conf. of Seventh-Day Adventists,
772 F.2d 1164, 1171 (4th Cir. 1985) (“Of course churches are not
— and should not be — above the law.”), with Bollard v.
California Province of the Soc’y of Jesus, 196 F.3d 940 (9th Cir.
1999) (“[T]he Free Exercise Clause protects the power of religious
organizations ‘to decide for themselves, free from state
interference, matters of church government as well as those of faith

                                 13
 competing interests, several courts have applied the ministerial

 exception, which exempts religious institutions from Title VII

 suits brought by employees charged with ministerial duties.

        In McClure v. Salvation Army, 460 F.2d 553, 555 (5th

 Cir. 1972), the seminal case on the ministerial exception, a

 female officer of the Salvation Army alleged that she received

 a lower salary and fewer benefits than male employees, and that

 she was discharged for complaining of these disparities. The

 Fifth Circuit held that the First Amendment barred the former

 officer’s claim, stating:

        The relationship between an organized church and
        its ministers is its lifeblood. The minister is the
        chief instrument by which the church seeks to
        fulfill its purpose. Matters touching this
        relationship must necessarily be recognized as of
        prime ecclesiastical concern.




and doctrine.’”) (quoting Kedroff v. St. Nicholas Cathedral of the
Russian Orthodox Church of N. Am., 344 U.S. 94, 116 (1952)).

                                14
 Id. at 558-59.

           Seven federal circuits now recognize the ministerial

 exception.6 Six have held that the exception applies regardless

 of whether the motive for the discrimination is religious in

 nature.7 In evaluating whether a particular employee’s suit is


       6
        See EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d
795 (4th Cir. 2000); Rayburn, 772 F.2d 1164; McClure, 460 F.2d
553; Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d
698 (7th Cir. 2003); Young v. Northern Illinois Conf. of United
Methodist Church, 21 F.3d 184 (7th Cir. 1994); Scharon v. St.
Luke’s Episcopal Presbyterian Hospitals, 929 F.2d 360 (8th Cir.
1991); Werft v. Desert Southwest Annual Conf. of the United
Methodist Church, 377 F.3d 1099 (9th Cir. 2004); Gellington v.
Christian Methodist Episcopal Church, Inc., 203 F.3d 1299 (11th
Cir. 2000); EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C. Cir.
1996).
       7
        See E.E.O.C. v. Roman Catholic Diocese of Raleigh, 213
F.3d 795, 801 (4th Cir. 2000) (“The exception precludes any
inquiry whatsoever into the reasons behind a church’s ministerial
employment decision. The church need not, for example, proffer
any religious justification for its decision . . .”); Combs v. Central
Texas Annual Conference of United Methodist Church, 173 F.3d
343, 350 (5th Cir. 1999); Young, 21 F.3d at 186; Alicea-
Hernandez, 320 F.3d at 703; Scharon, 929 F.2d at 363; Werft, 377
F.3d at 1103; Catholic Univ of Am., 83 F.3d at 464-65.

                                 15
 subject to the ministerial exception, the essential question is

 whether the employee’s “primary functions” serve the “spiritual

 and pastoral mission” of a church. E.E.O.C. v. Catholic Univ.

 of Am., 83 F.3d 455, 463 (D.C. Cir. 1986).8

           Courts have derived the ministerial exception both

 through direct constitutional analysis and by applying the

 doctrine that ambiguous statutes must be interpreted to avoid

 significant constitutional risks. The Fourth Circuit determined

 that Title VII applies by its clear language to ministerial

 employment decisions. See Rayburn v. Gen. Conf. of Seventh-


       Although the Eleventh Circuit has recognized the ministerial
exception, see Gellington, 203 F.3d 1299, it does not appear to
have directly addressed whether the exception applies without
regard to motive.
       8
        See also Alicea-Hernandez, 320 F.3d at 703 (applying the
ministerial exception to a Hispanic Communications Manager who
functioned as a “press secretary” for the church); Starkman v.
Evans, 198 F.3d 173, 175-76 (5th Cir. 1999) (holding that a choir
director at a Methodist church was a minister for purposes of First
Amendment analysis).

                                16
 Day Adventists, 772 F.2d 1164, 1165-67 (4th Cir. 1985). The

 Court therefore reached the direct constitutional question and

 held that the religion clauses bar employment suits by ministers.

 See id. at 1165-72; see also Scharon, 929 F.2d at 361-63.

 McClure, however, applied the constitutional avoidance doctrine

 and reasoned that Title VII does not apply unambiguously to the

 hiring and firing of ministers. See 460 F.2d at 560-61.

          Courts have also derived the ministerial exception from

 different constitutional provisions. Some have concluded that

 the Free Exercise Clause commands the exception, whereas

 others have opined that the exception is rooted in both the Free

 Exercise Clause and the Establishment Clause.9


      9
        See McClure, 460 F.2d at 560 (Free Exercise Clause);
Alicea-Hernandez, 320 F.3d at 702-03 (Free Exercise Clause);
Young, 21 F.3d at 186 (Free Exercise Clause), Werft, 377 F.3d at
1101 (both religion clauses); Rayburn, 772 F.2d at 1167-72 (both
religion clauses); Scharon, 929 F.2d at 361-63 (both religion
clauses).

                                17
        Our survey of Court of Appeals decisions has revealed

 three explanations of why the Constitution may require the

 ministerial exception. We delineate these rationales now and

 later consider whether they apply to this case. First, some courts

 have articulated a “government scrutiny” rationale, which holds

 that the ministerial exception is necessary to avoid government

 probing or examination of a church’s affairs.10              The

 “government scrutiny” rationale is based on the Establishment

 Clause, which commands the government to avoid entanglement




      10
         See, e.g., Rayburn, 772 F.2d at 1171 (“Church personnel
and records would inevitably become subject to subpoena,
discovery, cross-examination, the full panoply of legal process
designed to probe the mind of the church in the selection of its
ministers.”); Scharon, 929 F.2d at 363 (“It is not only the
conclusions that may be reached ... which may impinge on rights
guaranteed by the Religion Clauses, but also the very process of
inquiry.”) (quoting NLRB v. Catholic Bishop of Chicago, 440 U.S.
490, 502 (1979)).

                                18
 in religious matters.11

         Second, some courts have advanced a “selection of

 clergy” rationale.     Under this theory, religious institutions

 should be free to select their own ministers, and the government

 should have no role in this process. Whereas the “government

 scrutiny” rationale focuses on the process of judicial inquiry, the

 “selection of clergy” rationale aims to prevent the government

 from controlling actual employment decisions.12 While our

 sister circuits have grounded the “selection of clergy” argument

 in both the Free Exercise Clause and the Establishment Clause,13

       11
         See Rayburn, 772 F.2d at 1171 (“[P]ervasive monitoring
by public authorities ... infringes precisely those Establishment
Clause values at the root of the prohibition of excessive
entanglement.”) (quoting Aguilar v. Felton, 473 U.S. 402, 413
(1985)) (alterations in original); see generally Lemon v. Kurtzman,
403 U.S. 602 (1971).
       12
        See, e.g., Werft, 377 F.3d at 1101 (“[B]ecause clergy
represent a religious institution to the people, a religious institution
must retain unfettered freedom in its choice of clergy.”).
       13
         Rayburn, for example, derives the “selection of clergy”
argument from both clauses. See 772 F.2d at 1168 (“Any attempt
by government to restrict a church’s free choice of its leaders . . .
constitutes a burden on the church’s free exercise rights.”)
(emphasis added); id at 1171 (“Bureaucratic suggestion in

                                  19
 it appears to flow more naturally from the Free Exercise Clause,

 because it focuses on the right of a church to put its beliefs into

 practice through its choice of ministers.

        Finally, some courts have based the ministerial exception

 on an “inquiry into religious doctrine” rationale. Under this

 justification, the ministerial exception is necessary to prevent

 courts from resolving religious questions, which lie beyond

 judicial competence and authority. The Eighth Circuit has

 opined that “to review [ministerial employment] decisions

 would require the courts to determine the meaning of religious

 doctrine and canonical law.” Scharon, 929 F.2d at 363.14 The

 “inquiry into religious doctrine” rationale is more narrow than

 the “government scrutiny” rationale.          The “government


employment decisions of a pastoral character, in contravention of
a church’s own perception of its needs and purposes, would
constitute unprecedented entanglement with religious authority. .
.”) (emphasis added).
       14
          See also Combs, 173 F.3d at 350 (“[S]ecular authorities
would be involved in evaluating or interpreting religious
doctrine.”); Simpson, 494 F.2d at 493 (“[C]ivil courts are barred by
the First Amendment from determining ecclesiastical questions.”).


                                 20
 scrutiny” rationale is concerned with any intrusion into the

 internal affairs of a church, regardless of whether the

 government intrudes in a manner that requires it to resolve

 religious questions.   The “inquiry into religious doctrine”

 rationale has been framed both in Free Exercise and

 Establishment Clause terms.15

        This Court has not had occasion in prior cases to adopt or

 reject the ministerial exception. In two cases, however, we have

 considered employment claims brought against religious

 organizations by non-ministerial employees. In Little v. Wuerl,

 929 F.2d 944, 946 (3d Cir. 1991), a Catholic school refused to

 rehire a teacher because she remarried without following the

 proper canonical process to validate her second marriage. We

 concluded that §§ 702 and 703(e)(1) of Title VII, 42 U.S.C. §§


      15
         See Scharon, 929 F.2d at 363 (stating that to decide
questions of religious doctrine and law would violate the Free
Exercise Clause); Gellington, 203 F.3d at 1304 (stating that an
employment suit would involve the government “in questions of
religious doctrine, polity, and practice” in violation of the
Establishment Clause (quoting Jones v. Wolf, 443 U.S. 595, 603
(1979)).

                                 21
2000e-1 and 2000e-2(e)(1), exempt “conduct [that] does not

conform to [religious] mores.” Id. at 945. Therefore, we held

that the school could decline to rehire the plaintiff on the basis

of her remarriage. Id. at 951.

       The ministerial exception did not apply in Little both

because the plaintiff was not a ministerial employee and

because she was discharged on the basis of religion, thus

triggering statutory exemptions under Title VII. Nonetheless,

we did mention the ministerial exception in dicta: “[C]ourts

have consistently found that Title VII does not apply to the

relationship between ministers and the religious organizations

that employ them, even where discrimination is alleged on the

basis of race or sex.” Id. at 947 (citing McClure and Rayburn).

       In Geary v. Visitation of the Blessed Virgin Mary Parish

School, 7 F.3d 324 (3d Cir. 1993), a teacher brought suit against

a parochial school under the ADEA.                  Like Little,

Geary involved a non-ministerial employee. However, whereas

the plaintiff in Little brought a claim for religious


                                 22
 discrimination, the plaintiff in Geary sued for age

 discrimination. Id. at 328. Specifically, the plaintiff contended

 that she was fired due to her age, while the school asserted that

 she was fired for marrying a divorced man. Id. at 326. We

 concluded that the plaintiff’s suit did not “present a significant

 risk” of infringing the First Amendment. Id. at 331.

        With these precedents in mind, we turn to Petruska’s

 claims, and the procedural posture in which they come to us.

                                 III.

        The District Court dismissed Petruska’s claims under

 Federal Rule of Civil Procedure 12(b)(1). While some courts

 consider the ministerial exception to be jurisdictional in nature,

 and therefore view a motion to dismiss under Rule 12(b)(1) as

 the proper mechanism for asserting the exception,16 other courts

 opine that where the exception applies, the plaintiff fails to state




       16
         See, e.g., Alicea-Hernandez, 320 F.3d at 701; Young, 21
F.3d at 185.

                                 23
 a claim under Rule 12(b)(6).17 For the reasons stated in the

 margin, we conclude that the ministerial exception is properly

 raised in a Rule 12(b)(6) motion.18          We therefore review

       17
        See, e.g., Werft, 377 F.3d at 1100; Minker v. Baltimore
Annual Conf. of United Methodist Church, 894 F.2d 1354, 1356
(D.C. Cir. 1990).
       18
         At issue in a 12(b)(1) motion is the court’s “very power to
hear the case.” Mortensen v. First Federal Sav. and Loan Ass’n,
549 F.2d 884, 891 (3d Cir. 1977). A 12(b)(6) motion, by contrast,
tests the legal sufficiency of a plaintiff’s claim. The question is
whether the plaintiff has stated a cause of action. In that respect,
as the Tenth Circuit noted in Bryce v. Episcopal Church in the
Diocese of Colorado, 289 F.3d 648, 654 (10th Cir. 2002), the
assertion of the ministerial exception—or, in that case, the “church
autonomy doctrine”—is akin to a government official’s defense of
qualified immunity, which is often raised in a 12(b)(6) motion. Id.
The exception may bar the plaintiff’s causes of action, but it does
not affect the court’s authority to consider them.
        Although McClure, the case that first articulated the
ministerial exception, spoke of it in jurisdictional terms, the Court
based the exception on an interpretation of § 703 of Title VII, 42
U.S.C. § 2000e-2, the provision under which the plaintiff brought
suit. 460 F.2d at 555-56, 560-61. Section 703 does not confer
jurisdiction but instead creates a right of action for sex
discrimination. Because the ministerial exception is a limitation on
§ 703, and because § 703 creates a right of action, it follows that
the ministerial exception restricts a plaintiff’s right of action, not
a court’s jurisdiction.
        Moreover, a federal court undoubtedly has the authority to
review claims arising under federal law. Elvig v. Calvin
Presbyterian Church, 375 F.3d 951, 955 (9th Cir. 2004) (“Federal
question jurisdiction is statutorily established, giving district courts

                                  24
 Petruska’s complaint under that rule.

       So construing the motion to dismiss, we have jurisdiction

 under 28 U.S.C. § 1291. See Jordan v. Fox Rothschild O’Brien

 & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). Our review

 is plenary. Id. Petruska’s allegations, and all reasonable

 inferences that can be drawn from them, must be deemed true,

 and must be viewed in the light most favorable to her. See

 Evancho v. Fisher, 423 F.3d 347, 350-351 (3d Cir. 2005).

       Petruska’s complaint alleges that she was demoted

 because she is a woman. The complaint states that Gannon’s

 acting President, Thomas Ostrowski, told Petruska that she was

 to be demoted “solely on the basis of her gender.” (emphasis

 added).

       When a religious organization fires or demotes a woman

 on the basis of sex, it may be acting according to religious

 belief, religious doctrine, or church regulation (consider, for




‘original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.’”).

                               25
example, the Catholic Church’s prohibition of female priests).

In such a case, the religious organization would be immune from

a Title VII suit. But a religious institution might also fire a

woman because the individuals making the decision are, simply

put, sexist. Religious doctrine and internal church regulation

play no role in such a decision.

       Considering the complaint in the light most favorable to

Petruska, we must conclude that this is the latter type of case:

Under the pleadings, Petruska was fired due to sexism

unmoored from religious principle. Nothing in the complaint

suggests that, as a matter of Catholic doctrine, women cannot

serve as university chaplains; indeed, Petruska was hired as

Gannon’s chaplain. The complaint alleges that sexism and

sexual harassment at Gannon are rampant and points to no

religious justification for this alleged state of affairs. Gannon’s

former President, David Rubino, admitted to having an affair

with a subordinate. Another female employee accused Rubino

of sexual harassment, forcing Gannon to settle her claim. The


                                26
 complaint further states that Gannon has a custom or practice of

 sex discrimination and that Gannon undertook a campaign to

 cover up the former President’s sexual misconduct. Petruska

 alleges that Trautman has removed women from leadership

 positions in his Diocese due to their sex and that he has a

 reputation for being unable to work with women.

        This case plainly presents the question whether a

 ministerial employee may bring suit under Title VII where the

 religious institution lacks a rationale for the employment action

 that is grounded in faith, doctrine, or internal regulation.19 We

 now turn to this question.


       19
          Gannon’s creation of a Vice President for Mission and
Ministry position may be viewed as a decision pursuant to an
internal regulation. Presumably, the new position was somehow
written into Gannon’s policies. However, we construe Petruska’s
complaint to allege that Gannon violated Title VII not by creating
the position but by installing Rouch into the position, despite the
fact that the new position gave duties to Rouch that formerly
belonged to Petruska. After all, Title VII regulates not an
organization’s power to chose its own structure or to create new
positions but its ability to install particular individuals into those
positions. Gannon has cited no explanation grounded in religious
belief, religious doctrine, or internal regulation for the decision to
give to Rouch what had, in effect, been Petruska’s job.

                                 27
                                A.

       Where a federal statute poses “a significant risk of

infringing the First Amendment,” we must consider whether

there is “a permissible construction of the statute that avoids that

risk.” Geary, 7 F.3d at 327; see also NLRB v. Catholic Bishop

of Chicago, 440 U.S. 490, 507 (1979). If there is such a

permissible construction, we adopt it, and do not reach the

constitutional question. See Geary, 7 F.3d at 327.

       Although McClure, 460 F.2d at 560-61, held that Title

VII could be fairly construed not to apply to ministerial

employees, the Fourth Circuit has held that Congress clearly

expressed an intent to bring ministers within the reach of Title

VII. See Rayburn, 772 F.2d at 1166. The plain language of

Title VII’s prohibition on sex discrimination extends to the

employment of ministers by religious institutions.20 Likewise,


      20
       Section 703 of Title VII provides:

      It shall be an unlawful employment practice for an
      employer—


                                28
 Title VII’s retaliation provision, under which Petruska also

 brings suit, contains no exception for religious organizations. 42

 U.S.C. § 2000e-3(a).

        Furthermore, as the Fourth Circuit noted in Rayburn, §

 702 of Title VII contains a limited exemption for “a religious

 corporation, association, educational institution, or society.”

 772 F.2d at 1166. However, the exemption is restricted to the

 decision to employ “individuals of a particular religion” to

 perform work connected with the organization’s activities. See

 id.; 42 U.S.C. § 2000e-1. Thus, Congress gave churches the

 explicit right to discriminate on the basis of religion, but

 declined to create a right to discriminate on the basis of sex or

 to retaliate against an employee for complaining of sex

 discrimination. See Rayburn, 772 F.2d at 1166-67.



      (1) to fail or refuse to hire or to discharge any
      individual, or otherwise to discriminate against any
      individual with respect to his compensation, terms,
      conditions, or privileges of employment, because of
      such individual’s . . . sex . . . .

42 U.S.C. § 2000e-2.

                                29
          Rayburn also concluded that Title VII’s “legislative

 history reinforces the plain meaning of the statutory text.” Id.

 at 1167. Congress repeatedly considered and recalibrated the

 limited exemption for religious employers, but never gave such

 employers the power to discriminate on the basis of sex. As

 originally passed by the House in 1964, Title VII entirely

 exempted religious corporations, associations, or societies.21

 The final version, however, limited the exemption to

 discrimination on the basis of religion against employees

 involved in “religious activities.”22 In 1972, the exemption was

 broadened by deleting the word “religious” before “activities.”23

 However, the Senate rejected a proposal that would have

 expanded the exemption so far as to prohibit all Title VII suits

       21
       Rayburn, 772 F.2d at 1167. (citing H.R. Rep. No. 914,
88th Cong., 2d Sess. (1964), reprinted in 1964 U.S. Cong. &
Admin. News 2355, 2391, 2402).
       22
         Id. (citing P.L. 88-352, Title VII, § 702, 78 Stat. 241, 255
(July 2, 1964), reprinted in 1964 U.S. Cong. & Admin. News 287,
304).
       23
            Id. (citing P.L. 92-261 § 3, 86 Stat. 103-104 (March 24,
1972)).

                                  30
 against religious organizations.24 Finally, the section-by-section

 analysis of the Equal Employment Opportunity Act of 1972

 stated that religious organizations “remain subject to the

 provisions of Title VII with regard to race, color, sex or national

 origin.”25

        In light of the foregoing analysis, we agree with the

 Fourth Circuit that the ministerial exception must derive directly

 from the Constitution, and not from Title VII.

                                 B.

        Under the terms of Title VII, a woman denied admission

 to the priesthood could sue the Catholic Church for sex

 discrimination. However, it is clear that Title VII cannot

 constitutionally extend to discrimination based on religious

       24
         See Subcommittee on Labor of the Committee on Labor
and Public Welfare of the United States Senate, Legislative History
of the Equal Employment Opportunity Act of 1972 (Comm. Print
1972), at 376, 881, 1229-1230, 1258-1260, cited in Rayburn, 772
F.2d at 1167.
       25
        Section-by-Section Analysis of H.R. 1746, the Equal
Employment Opportunity Act of 1972, reprinted in Legislative
History of the Equal Employment Opportunity Act of 1972, at
1844, 1845, cited in Rayburn, 772 F.2d at 1167 (emphasis added).

                                 31
 belief, religious doctrine, or church regulation.26 Preventing a

 church from hiring ministers in accordance with its own beliefs

 would inhibit its ability to put its doctrines into practice and

 would therefore violate the Free Exercise Clause. Furthermore,

 such litigation would entangle courts in religious matters, in

 violation of the Establishment Clause.

        This case, however, is about something completely

 different. Petruska alleges that she was demoted because of

 animus against women that had nothing to do with religious

 beliefs, religious doctrine, or internal regulation.

        While several of our sister circuits have opined that the

 employer’s reasons are irrelevant to the ministerial exception,

 see supra pp. 10-11, we conclude that these reasons make all the

 difference. The Constitution protects religious exercise,27 and

      26
        By “church regulation,” we mean the internal rules under
which a religious institution operates.
      27
         See, e.g., City of Boerne v. Flores, 521 U.S. 507, 564
(1997) (O’Connor, J., dissenting) (“[T]he Free Exercise Clause is
properly understood as an affirmative guarantee of the right to
participate in religious activities without impermissible
governmental interference.”) (emphasis added).

                                 32
 we decline to turn the Free Exercise Clause into a license for the

 free exercise of discrimination unmoored from religious

 principle.28 We therefore conclude that under the Free Exercise

 Clause the ministerial exception will not bar Title VII claims by

 ministerial employees when an employment decision is not

 motivated by religious belief, religious doctrine, or church

 regulation.    This version of the ministerial exception also

 comports with the Establishment Clause because courts will not

 be forced to consider religious questions, a process that would

 entangle the government in religious affairs.

                                  1.

         The Supreme Court has not addressed the ministerial

 exception, but our sister circuits have purported to derive it from



       28
          According to a leading scholar of the religion clauses, “[t]o
grant First Amendment immunity to . . . religious organizations in
circumstances where its actions were not dictated by religious
belief . . . is to invite misbehavior. Moreover, it seems unfair to
deprive the poorly treated and now-estranged employee of any
opportunity to bring the religious entity to account. . . .” Marci A.
Hamilton, God vs. the Gavel: Religion and the Rule of Law 196
(2005).

                                  33
Supreme Court cases that discuss the importance of church

autonomy. However, the church autonomy cases protect a

particular type of liberty: the right of a church to construe its

own laws, regulations, and beliefs free of judicial interference.

Because Title VII is a secular federal law as opposed to an

internal ecclesiastical law, and because Gannon has offered no

religious rationale for Petruska’s demotion, the church

autonomy cases do not apply.

       Serbian Eastern Orthodox Diocese v. Milivojevich, 426

U.S. 696 (1976), stands for the proposition that a plaintiff cannot

sue a church for departing from or misapplying its own laws and

regulations. In Milivojevich, the Supreme Court of Illinois set

aside a Bishop’s removal and defrockment and the

reorganization of a Diocese. Id. at 708. Critically, the basis for

the state court’s decision was that the church violated its own

internal regulations, including its constitution and penal code.

Id. at 708, 712-13. The Supreme Court held that the First

Amendment barred the state court’s inquiries into whether


                                34
 church proceedings were “procedurally and substantively

 defective under the internal regulations of the Mother Church.”

 Id. at 698 (emphasis added).

        Similarly, in Gonzalez v. Roman Catholic Archbishop of

 Manilla, 280 U.S. 1 (1929), the Court declined to overrule a

 church’s interpretation of ecclesiastical law. An archbishop

 refused to appoint the plaintiff to a hereditary chaplaincy created

 by a trust, and the plaintiff sought a judgment declaring him the

 legal heir. Id. at 10-12. The archbishop’s decision was based on

 provisions of the Codex Juris Canonici, which stated that to be

 eligible for a chaplaincy, one must have begun the study of

 theology. Id. at 13-14. The Court refused to overrule the

 archbishop’s construction of ecclesiastical law. Id. at 16.29

        Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872), applies

 the same principle. The Watson Court “was asked to decree the



      29
        Additionally, Gonzalez has nothing to do with the First
Amendment: It was decided based on the terms of the trust, and
without reference to the Constitution. See Milivojevich, 426 U.S.
at 729-30 (Rehnquist, J., dissenting).

                                 35
 termination of an implied trust because of departures from

 doctrine.” Presbyterian Church in the United States v. Mary

 Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440,

 445 (1969). As the Watson Court stated, “whenever the

 questions of discipline, or of faith, or ecclesiastical rule, custom,

 or law have been decided” by church tribunals, “the legal

 tribunals must accept such decisions as final, and as binding on

 them.” 80 U.S. at 727.30

        Thus, the Supreme Court’s church autonomy cases

 protect a religious institution’s freedom to interpret its own laws

 and internal regulations. However, entirely separate questions



       30
         Kedroff v. St. Nicholas Cathedral of the Russian Orthodox
Church in N. Am., 344 U.S. 94 (1952), is also inapposite. Kedroff
involved a dispute between the Moscow-based Russian Orthodox
Church and its North American branch over the right to use and
occupy a cathedral. Id. at 95-97. A New York law aimed to
strengthen the North American branch at the expense of the
Moscow-based church. See Kedroff, 344 U.S. at 109. The
Supreme Court invalidated the New York statute largely because
it was designed “for the benefit of one segment of a church” at the
expense of another. Id. at 119. Thus, Kedroff stands for the
familiar proposition that the state may not favor one religious
group over another, a principle that has no relevance to this case.

                                  36
 are raised by the application of federal laws, such as Title VII,

 to a church.31 In contrast to an internal church law, Title VII,

 like any federal law, falls squarely within the ken of the federal

 judiciary.

        In fact, in a separate line of cases addressing church

 property disputes, the Supreme Court has repeatedly stated that

 churches must adhere to laws, like Title VII, that are neutral and

 of general applicability.32 The Court has even stated that this

 principle extends to employment laws: “The neutral-principles

 approach cannot be said to ‘inhibit’ the free exercise of religion,

       31
         As Milivojevich recognizes, secular courts lack the
expertise and authority necessary to interpret church law. Indeed,
if a secular court reviewed a church’s decision on a matter of
church law, the appeal would be “from the more learned tribunal
in the law . . . to one which is less so.” 426 U.S. at 715 n.8
(quoting Watson, 80 U.S. (13 Wall.) at 729).
       32
         The Supreme Court applies a similar principle to neutral
laws of general applicability that incidentally burden the activities
of an individual, as opposed to a church. See Employment Div.,
Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872,
878-79 (1990) (“We have never held that an individual's religious
beliefs excuse him from compliance with an otherwise valid law
prohibiting conduct that the State is free to regulate. On the
contrary, the record of more than a century of our free exercise
jurisprudence contradicts that proposition.”).

                                 37
any more than do other neutral provisions of state law governing

the manner in which churches own property, hire employees, or

purchase goods.” Jones, 443 U.S. at 606 (emphasis added).

       In Presbyterian Church, 393 U.S. at 443-44, a Georgia

court instructed a jury to resolve a church property dispute

between a general church and a local church based on matters of

religious doctrine. Id. The Supreme Court held that the Georgia

court violated the First Amendment, which “commands civil

courts to decide church property disputes without resolving

underlying controversies over religious doctrine.” Id. at 449

(emphasis added). Presbyterian Church, however, leaves no

doubt that religious organizations are bound by neutral laws of

general applicability that do not require inquiry into religious

doctrine. As the Court stated, “there are neutral principles of

law, developed for use in all property disputes, which can be

applied without ‘establishing’ churches to which property is

awarded.” Id.

       The following year, the Supreme Court reaffirmed


                              38
 Presbyterian Church, holding in Maryland and Virginia

 Eldership of the Churches of God v. Church of God at

 Sharpsburg, 396 U.S. 367, 367-68 (1970), that a Maryland court

 properly considered legal documents to resolve a church

 property dispute. The Court opined that “the Maryland court’s

 resolution of the dispute involved no inquiry into religious

 doctrine.” Id. at 368 (emphasis added).

            In Jones, the Court yet again stated that religious

 organizations are bound by secular laws, so long as those laws

 do not require inquiry into religious doctrine: “[A] State may

 adopt any one of various approaches for settling church property

 disputes so long as it involves no consideration of doctrinal

 matters, whether the ritual and liturgy of worship or the tenets

 of faith.” 443 U.S. at 602 (quotation omitted).33 Indeed, courts

 applying neutral laws of general applicability to religious


       33
         Jones further states: “We cannot agree . . . that the First
Amendment requires the States to adopt a rule of compulsory
deference to religious authority in resolving church property
disputes, even where no issue of doctrinal controversy is involved.”
Id. at 605 (emphasis added).

                                39
institutions remain “free . . . completely from entanglement in

questions of religious doctrine, polity, and practice.” Id. at 603.

       Because Petruska brings suit under Title VII, the rule of

Presbyterian Church, Maryland and Virginia Churches, and

Jones will bar her suit only if an inquiry into matters of religious

doctrine is required. Here, nothing in the complaint suggests

that Petruska’s demotion was based on religious belief, religious

doctrine, or internal church regulation. At this stage, and as we

explain more fully in the following sections, the case requires no

inquiry into religious doctrine.

                                2.

       We now turn to the rationales that other courts have used

to justify the ministerial exception, inquiring whether these

rationales support an exception that applies without regard to the

motivation for an employment decision. As discussed above,

see supra pp. 12-15, courts have offered three explanations of

why the Constitution might require the ministerial exception.

We address these arguments in turn.


                                40
           First Rationale: Government Scrutiny

       Some of our sister circuits have opined that the

ministerial exception is necessary to avoid government scrutiny

of religious affairs. See supra p. 13. This argument derives

largely from Catholic Bishop, where the Supreme Court held

that the NLRB lacked jurisdiction to order collective bargaining

between teachers and church-operated schools. The Supreme

Court’s holding was based largely on the concern that NLRB

supervision would entangle the government with religious

schools, in violation of the Establishment Clause. See Catholic

Bishop, 440 U.S. at 501-04.

       In Geary, however, we distinguished Catholic Bishop and

held that a non-minister could bring a Title VII suit against a

religious employer.        We explained that employment

discrimination laws, at least as applied to a non-minister, require

far less scrutiny of religious affairs than NLRB supervision of

religious schools. In an employment discrimination case, “[t]he

secular tribunal merely asks whether a sincerely held religious


                                41
 belief actually motivated the institution’s actions. The

 institution, at most, is called upon to explain the application of

 its own doctrines.” Geary, 7 F.3d at 330.34

        Following Catholic Bishop and Geary, we must decide

 whether allowing Petruska’s suit to proceed would lead to

 excessive judicial scrutiny of Gannon. In considering this

 question, we take into account the principle articulated by the

 Supreme Court in the church autonomy and church property

 cases: A secular court must not resolve issues of religious belief,

 religious doctrine, or internal church regulation. Applying this

 principle, we ask not whether courts will be required to consider

 the affairs of a church in general, but whether courts will be

 forced to decide matters that Supreme Court precedent places

 beyond judicial scrutiny.



       34
         See also DeMarco v. Holy Cross High School, 4 F.3d 166,
169-70 (2d Cir. 1993) (“While the NLRB is ‘continuously involved
in the enforcement of collective bargaining agreements and
resolution of labor disputes,’ ADEA actions do not require
extensive or continuous administrative or judicial intrusion into the
functions of religious institutions.”) (citations omitted).

                                 42
       At this stage of the litigation, we cannot say that the case

will require examination of religious belief, religious doctrine,

or internal church regulation. Indeed, it is entirely possible that

Gannon will continue not to offer a religious justification for

Petruska’s demotion. In such event, the decisive question for

the District Court or the jury will be whether Petruska was

demoted due to her gender, and this question will remain

independent of religious matters.

       Alternatively, Gannon may offer an explanation for

Petruska’s demotion that is grounded in religious principles or

internal church regulations. The mere assertion of either type of

explanation would not necessarily require the dismissal of

Petruska’s claims.

       We imagine that the justification could take two forms.

First, Gannon might argue that Petruska was demoted for

reasons independent of gender discrimination. For example,

Gannon might assert that Petruska was demoted for failing to




                                43
 attend mass, in contravention of Catholic doctrine.35

 Alternatively, Gannon might concede that it discriminated

 against Petruska on the basis of gender but assert that the

 discrimination was grounded in religious doctrines or internal

 regulations.      For example, and again speaking in the

 hypothetical, Gannon might contend that Catholic doctrine does

 not allow female university chaplains.

           In the first type of case, the task of the District Court or

 the jury would be to determine whether the challenged

 employment action was motivated by the proffered religious

 doctrine or by sex discrimination. As in Geary, the employee

 could not “challenge the validity, existence or ‘plausibility’” of

 the religious doctrine itself.         See Geary, 7 F.3d at 330.

 However, the employee could contend that the asserted religious

 rationale “did not in fact motivate” the adverse employment

 action. Id.



      35
          This example is purely illustrative, and is not based on the
record.

                                   44
          For example, if Gannon contended that Petruska did not

attend mass, she would be precluded from asserting that

Catholic doctrine did not require her to do so. She could,

however, argue that she was not actually demoted for failing to

attend mass. By way of illustration, she could substantiate her

allegations that Ostrowski told her that she was being demoted

solely on the basis of her gender and that Trautman sought to

“clean house” by removing women from leadership positions.

Petruska might also cite evidence that in the past male chaplains

who refused to attend mass did not suffer adverse employment

action.     To determine whether this evidence demonstrated

gender discrimination, a factfinder would not have to delve into

religious questions. As we stated in Geary, “[a] conclusion that

the religious reason did not in fact motivate dismissal would not

implicate entanglement since that conclusion implies nothing

about the validity of the religious doctrine or practice.” Id.

          Gannon might instead concede that it demoted Petruska

on the basis of gender but contend that the discrimination was


                                45
motivated by religious doctrine or internal regulation. The

factfinder’s task would then be to determine whether the

discrimination was indeed motivated by religious principles or

church regulations; if so, the ministerial exception would bar the

claim. Petruska could not challenge the validity of the asserted

doctrine. Thus, if Gannon asserted that Catholicism forbids

female university chaplains, Petruska could not contend

otherwise. Furthermore, Petruska could not prevail merely by

pointing to evidence of sex discrimination, since such

discrimination, if religiously motivated, would be beyond

judicial scrutiny. Still, it is conceivable that Petruska could cite

evidence that she was demoted due to discrimination without

any religious basis. For example, she might present evidence

that the decisionmakers said that they had no religious reason to

discriminate against her. In assessing evidence of this nature,

the factfinder would not have to decide religious questions.

       If Gannon offers either type of religious rationale, the

District Court may be constitutionally required to limit


                                46
discovery or exclude evidence designed to call into question the

validity, existence, or plausibility of the religious doctrine. For

example, if Gannon argued that Petruska was demoted for

failure to attend mass, Petruska obviously would not be allowed

to question the doctrine by citing church law or the Bible. In

this regard, we find the D.C. Circuit’s discussion of a minister’s

contract claim instructive:

       It could turn out that in attempting to prove his
       case, appellant will be forced to inquire into
       matters of ecclesiastical policy . . . . Of course, in
       that situation, a court may grant summary
       judgment on the ground that appellant has not
       proved his case and pursuing the matter further
       would create an excessive entanglement with
       religion. On the other hand, it may turn out that
       the potentially mischievous aspects of
       [appellant’s] claim are not contested by the
       Church or are subject to entirely neutral methods
       of proof. The speculative nature of our discussion
       here demonstrates why it is premature to foreclose
       appellant’s . . . claim. Once evidence is offered,
       the district court will be in a position to control
       the case so as to protect against any impermissible
       entanglements.

Minker v. Baltimore Annual Conf. of United Methodist Church,




                                47
 894 F.2d 1354, 1360 (D.C. Cir. 1990).36

         We recognize that this process will often require a

 nuanced analysis of whether a piece of evidence calls religious

 doctrines into question, but we are confident that the excellent

 district courts in this Circuit are up to the task.37 Moreover, the

 possibility that courts in this case will have to make fine

 distinctions in the future is not a sufficient reason to foreclose

 Petruska’s suit now. After all, when we restrict the reach of a

 statute so as to preserve the Constitution, we must cut with a

 scalpel, not a butcher’s knife.38 Therefore, Petruska’s claims

       36
         See also Bollard, 196 F.3d at 950 (“The limited nature of
the inquiry, combined with the ability of the district court to control
discovery, can prevent a wide-ranging intrusion into sensitive
religious matters.”).
       37
         See DeMarco, 4 F.3d at 172 ( “[W]e are confident that the
able district judge will be able to focus the trial upon whether
DeMarco was fired because of his age or because of failure to
perform religious duties, and that this can be done without putting
into issue the validity or truthfulness of Catholic religious
teaching.”).
       38
         As the Supreme Court has recently reminded us, “we must
‘refrain from invalidating more of [a] statute than is necessary.’”
See United States v. Booker, 543 U.S. 220, 258 (2005) (quoting
Regan v. Time, Inc., 468 U.S. 641, 652 (1984)).

                                  48
may—or may not—present constitutional problems later on, and

we will not bar them now based on mere speculation.

       Although Gannon “would be likely to defend its

employment action on grounds related to church needs rooted in

church doctrine,” see Tomic v. Catholic Diocese of Peoria, 442

F.3d 1036, 1040 (7th Cir. 2006) (emphasis added), and although

this defense might require limiting discovery or excluding

certain evidence, we do not think that this possibility requires us

to prophylactically disregard the command of Congress. Such

an approach would risk foreclosing perfectly valid claims,

thereby ignoring the will of Congress without a justification

rooted in the Constitution. We will not, until we have a

constitutional reason to do so, enfeeble “a law triggered by a

Nation’s concern over centuries of racial injustice and intended

to improve the lot of those who had been excluded from the

American dream for so long.” United Steelworkers of America

v. Weber, 443 U.S. 193, 204 (1979) (quotation omitted).

           Second Rationale: Selection of Clergy


                                49
       Aside from the “government scrutiny” rationale, which

seeks to shield churches from government inquiry, examination,

or probing, some courts have opined that the law should have no

authority over a church’s decision to fire a ministerial employee.

See supra pp. 13-14. We agree with this argument, but only to

a point.   True, if a religious employer fired a ministerial

employee for reasons related to faith, doctrine, or internal

regulation, a judgment against the church would punish the

church for expressing its beliefs. But where an employment

decision is devoid of religious or doctrinal content, and is based

solely on sexism, we fail to see how the decision relates to the

free exercise of religion.

       Let us assume that a male applicant and a female

applicant for a ministerial position have identical religious

views, that they are equally qualified, and that there is no

religious reason to chose one over the other. Let us further

assume that the decisionmaker chooses the male candidate due

to sexism that is utterly unconnected to his religious beliefs. In


                               50
 such a case, we do not think that allowing the female candidate

 to bring suit under Title VII would infringe the religious

 autonomy of the church.

        Critically, a host of statutory and constitutional

 protections continue to guarantee a church’s freedom to select

 ministers for religious reasons. First, religious institutions retain

 the right to fire ministers for conduct inconsistent with religious

 precepts or for membership in the wrong religion. See Little,

 929 F.2d at 951. Second, as we have mentioned, religious

 institutions may even practice race and sex discrimination that

 is otherwise illegal, so long as the discrimination is grounded in

 religious doctrine or internal regulation. Third, a plaintiff

 cannot challenge the validity or existence of religious doctrines

 in the course of litigation.39 Under the rule we now adopt,


       39
         We also note that because Petruska seeks only monetary
damages, her suit does not threaten to alter the composition of
Gannon’s ministerial staff. See Bollard, 196 F.3d at 950 (holding
that the ministerial exception did not bar a sexual harassment suit
against a religious institution, where the plaintiff sought only
damages); Minker, 894 F.2d at 1360 (“[A]s the remedy would be
limited to the award of money damages, we see no potential for

                                  51
 religious institutions lose only the power to fire ministerial

 employees for secular reasons, a power unrelated to the exercise

 of religion.

      Third Rationale: Inquiry into Religious Doctrine

        Finally, other Courts of Appeals have opined that the

 ministerial exception prevents judicial inquiry into matters of

 religious doctrine.    See supra pp. 14-15.       In light of our

 discussion thus far, little remains to be said. At this point in the

 litigation, we cannot conclude that Petruska’s claims will raise

 questions of a religious nature, requiring secular courts to

 “tak[e] on the additional role of religious courts, as if the United

 States were a theocracy.” Tomic, 442 F.3d at 1042.

        In sum, neither Supreme Court precedent nor the

 arguments advanced by our sister circuits supports a ministerial

 exception that applies without regard to the reason for an

 employment decision. We therefore reverse the dismissal of

 Petruska’s Title VII sex discrimination claim.



distortion of church appointment decisions. . . .”).

                                 52
                                IV.

        Independent of her sex discrimination claim, Petruska

 also alleges that she was demoted in retaliation for opposing

 sexual harassment at Gannon.40 We apply the same analysis to

 the   retaliation claim as to the sex discrimination claim,

 inquiring whether the complaint alleges that the retaliation was

 based on religious belief, religious doctrine, or internal church

 regulation. There is no indication that a doctrine or regulation

 prohibits opposing sexual harassment or questioning sexual

 harassment policies. Therefore, at this stage, and for the reasons

 stated above, the claim does not collide with Gannon’s free

 exercise rights or entangle secular courts in religious questions.

 Accordingly, we reverse the District Court’s dismissal of


       40
          To repeat, Petruska alleges that she opposed limiting the
time frame during which a Gannon employee could file a sexual
harassment grievance with the university; helped prepare a report
criticizing the university’s sexual harassment policies; played a
pivotal role in notifying Ostrowski and Trautman that Rubino had
sexually harassed a Gannon employee for several years; and
opposed Trautman’s decision to allow a former Gannon priest, who
had been terminated for sexual misconduct toward students, to
enter the university’s campus.

                                53
 Petruska’s Title VII retaliation claim.

                                 V.

        Aside from her Title VII claims, Petruska’s complaint

 also contains four state law claims: breach of contract, civil

 conspiracy, negligent supervision and retention, and fraudulent

 misrepresentation. While the ministerial exception as such

 applies only to Title VII, courts have applied similar doctrines

 to restrict state law claims arising out of the employment

 relationship between a religious organization and a ministerial

 employee.

        Like every court to decide the issue, we conclude that the

 First Amendment bars state law claims that require an

 interpretation of religious belief, religious doctrine, or internal

 church regulation.41 On the other hand, courts have held that the


       41
         To allow a secular court to inquire into such matters would
contravene Milivojevich, which forbids examination of “matters of
discipline, faith, internal organization, or ecclesiastical rule,
custom, or law.” 426 U.S. at 713. Applying Milivojevich, the First
Circuit dismissed a plaintiff’s claim that he was discharged in
violation of procedures “articulated in [a church’s] General
Constitution, certain Auxiliary Constitutions, and a variety of

                                 54
 religion clauses permit state law employment claims that do not

 require inquiry into such matters. In Minker, a Methodist

 minister asserted two contract claims against the United

 Methodist Church: (1) breach of promises to find him a more

 suitable congregation and (2) violation of the Book of

 Discipline, a statement of church law. 894 F.2d at 1355-56.

 The Court held that the religion clauses barred the Book of

 Discipline claim, which would require interpreting “matters of

 essential religious dogma.” Id. at 1358. However, the Court

 permitted the oral promise claim, which did not require inquiry

 into such matters. The Court reasoned that “[a] church is always

 free to burden its activities voluntarily through contracts, and




bylaws, rules, and regulations.” Natal v. Christian and Missionary
Alliance, 878 F.2d 1575, 1576 (1st Cir. 1989). Similarly, in Lewis
v. Seventh Day Adventists Lake Region Conference, 978 F.2d 940,
943 (6th Cir. 1992), the Sixth Circuit dismissed state law claims
where the employee asserted that his dismissal was based “on a
misapplication of [church] procedures and laws.” See also
Hutchison v. Thomas, 789 F.2d 392, 393 (6th Cir. 1986)
(dismissing contract claim based on The Discipline, a collection of
Methodist “rules, laws, and doctrinal statements”).

                                55
 such contracts are fully enforceable in civil court.” Id. at 1359.42

         Applying the reasoning of Minker, we ask whether, at

 this stage of litigation, each of Petruska’s state law claims

 requires an examination of matters of faith, doctrine, or internal

 regulation.



                      A. Breach of Contract

         Petruska alleges that Gannon, by demoting her, breached

 her contract to serve as chaplain for three years. At this stage,

 we cannot assume that interpreting Petruska’s contract will give

 rise to questions of religious belief, religious doctrine, or

 internal church regulation.43 See Drevlow v. Lutheran Church,

       42
         Similarly, the Eighth Circuit reversed the dismissal of a
minister’s state law employment claims, reasoning, “[a]t the
present stage of this litigation we are unable to predict that the
evidence offered at trial will definitely involve the district court in
an impermissible inquiry into . . . bylaws or religious beliefs.”
Drevlow v. Lutheran Church, 991 F.2d 468, 471 (8th Cir. 1993);
see also Rayburn, 772 F.2d at 1171 (“Like any other person or
organization, [churches] may be held liable for their torts and upon
their valid contracts.”).
       43
         In alleging that she was removed as chaplain, Petruska
alludes to Gannon’s Policies and Procedures Manual, which lists

                                  56
 991 F.2d 468, 471 (8th Cir. 1993). Accordingly, we reverse the

 dismissal of Petruska’s breach of contract claim.

              B. Fraudulent Misrepresentation

        Petruska’s fraudulent misrepresentation claim is based on

 (1) Gannon’s representations that it is an equal opportunity

 employer and (2) Rubino’s assurance at the time of Petruska’s

 promotion to chaplain that her tenure would reflect her

 performance as opposed to her gender. At least at the outset,

 Petruska’s fraudulent misrepresentation claim “do[es] not

 inevitably or even necessarily lead to government inquiry into

 [Gannon’s] religious mission or doctrines.” Geary, 7 F.3d at

 329.

        While the religion clauses do not bar Petruska’s

 fraudulent misrepresentation claim, she has failed to plead fraud




the duties of the chaplain. Presumably, the manual is a statement
of Gannon’s internal regulations. On remand, the religion clauses
may bar Petruska from citing the manual as evidence of her breach
of contract claim, for in order to evaluate such evidence, the
factfinder might have to consider questions of internal church
regulation.

                                57
 with sufficient particularity under Federal Rule of Civil

 Procedure 9(b).44 We therefore affirm the District Court’s

 dismissal of this claim.

      C. Negligent Supervision and Retention and Civil
                       Conspiracy


        Petruska’s negligent supervision and retention claim and

 her civil conspiracy claim flow directly from her Title VII

 allegations. Civil conspiracy requires proof that two or more

 persons combined to do an unlawful act or to do an otherwise

 lawful act by unlawful means. See, e.g., Thompson Coal Co. v.

 Pike Coal Co., 488 Pa. 198, 211 (Pa. 1979).             Here, the

 underlying unlawful acts are the very violations of Title VII

 discussed in the previous sections.

        Likewise, Petruska’s negligent supervision and retention

 claim flows from her Title VII allegations: She claims that


       44
         See Christidis v. First Pennsylvania Mortg. Trust, 717
F.2d 96, 99 (3d Cir. 1983) (stating that the requirements of Rule
9(b) “appl[y] not only to fraud actions under federal statutes, but to
fraud claims based on state law.”).


                                 58
Gannon negligently supervised and retained the employees who

discriminated against her. Gannon has not asserted a reason for

the retention of these employees that is grounded in faith,

doctrine, or internal regulation.

       As a corollary to our conclusion that Petruska must be

allowed to proceed with her Title VII claims, we hold that at this

stage the First Amendment does not foreclose her conspiracy

and negligent supervision and retention claims. We therefore

reverse the District Court’s dismissal of these claims.

                               VI.

       At this stage of litigation, Petruska’s claim offends

neither the Free Exercise Clause nor the Establishment Clause.

We therefore hold that the religion clauses do not bar Petruska’s

causes of action, and we reverse the dismissal of all claims, with

the exception of the fraudulent misrepresentation claim. We

stress that constitutional defects in Petruska’s causes of action

may emerge as the case proceeds, and that the District Court

must avoid them scrupulously, applying the guidance we have


                               59
 provided.45 Ultimately, the constitutional concerns that lurk at

 the periphery of this case may defeat Petruska’s claims. But that

 is a question for another day.




       45
         We reject Petruska’s argument that Gannon waived the
ministerial exception as a defense. See Tomic, 442 F.3d at 1042
(“[T]he ministerial exception . . . is not subject to waiver or
estoppel . . . . A federal court will not allow itself to get dragged
into a religious controversy even if a religious organization wants
it dragged in.”). Because Gannon did not waive the ministerial
exception, Gannon may assert the exception, as defined by this
opinion, in further proceedings.

                                  60
SMITH, J., concurring in part and dissenting in part.

       Although the majority professes to adopt a “carefully
tailored version of the ministerial exception” to Title VII, Maj.
Op. at 3, in fact, by treating ministers like lay employees, it
effectively refuses to recognize any ministerial exception,
placing this Court at odds with every other federal court of
appeals to consider the issue. The majority holds that “where a
church discriminates for reasons unrelated to religion, . . . the
Constitution does not foreclose Title VII suits.” Maj. Op. at 4.
It concludes that because Gannon has not–or at least not
yet–articulated a “religious belief, religious doctrine, or internal
regulation” as a basis for its decision to restructure, adjudication
of Petruska’s claims does not offend the First Amendment. Id.
I disagree with the majority’s fundamental premise that a
church’s choice regarding who performs particular spiritual
functions is not necessarily a religious decision. Rather, in my
view, such a decision is, by its very nature, a religious one.
Consequently, government interference with that decision
necessarily infringes on a church’s free exercise of religion and
entangles the courts in religious matters. I would therefore
apply the ministerial exception to any claim which limits a
church’s right to choose who will perform particular spiritual
functions, without regard to whether it articulates an
independent justification based on “religious belief, religious
doctrine, or internal regulation.”

        I agree with the majority’s conclusion that Gannon’s
motion to dismiss is properly considered under Federal Rule of
Civil Procedure 12(b)(6) and that Petruska failed to allege
fraudulent misrepresentation with sufficient specificity under
Federal Rule of Civil Procedure 9(b). Accordingly, I concur in
the introduction of Part III and in Part V.B. of the Opinion. I

                                61
also agree that adjudication of Petruska’s breach of contract
claim would not violate the First Amendment, and therefore
likewise concur in Part V.A. However, because Petruska’s own
complaint establishes that her primary duties included spiritual
functions and because her Title VII, civil conspiracy, and
negligent supervision and retention claims implicate the
church’s right to select its spiritual leaders, I would hold that
these claims are barred by the ministerial exception. I therefore
respectfully dissent.

                                I.

       The First Amendment to the United States Constitution
provides that “Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise
thereof.” U.S. Const. amend. I. The Religion Clauses extend to
both legislative and judicial action, see Kreshik v. Saint Nicholas
Cathedral of Russian Orthodox Church of North Amer., 363
U.S. 190, 191 (1960), and apply equally to state and federal
laws, see Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1,
8 (2004) (citing Cantwell v. Connecticut, 310 U.S. 296, 303
(1940)). The Free Exercise Clause protects both the “right to
believe and profess whatever religious doctrine one desires,”
Employment Division, Dep’t of Human Resources v. Smith, 494
U.S. 872, 877 (1990), and the right of religious institutions to
decide “matters of church government” as well as questions of
“discipline, faith, internal organization, or ecclesiastical rule,
custom, or law.” See Kedroff v. St. Nicholas Cathedral, 344
U.S. 94, 116 (1952); Serbian Orthodox Diocese v. Milivojevich,
426 U.S. 696, 713 (1976). The Establishment Clause, by
contrast, prohibits government action that serves to advance or
inhibit religion or that results in excessive entanglement “in
questions of religious doctrine, polity, and practice.” See Jones

                                62
 v. Wolf, 443 U.S. 595, 603 (1979); Lemon v. Kurtzman, 403 U.S.
 602, 612-13 (1971).

        The questions presented in this case are whether applying
 Title VII to Gannon’s decision to restructure would infringe
 upon its free exercise rights and whether adjudication of
 Petruska’s Title VII claims would result in unconstitutional
 entanglement under the Establishment Clause. Every circuit that
 has considered the issue has concluded that application of Title
 VII to a minister-church relationship would violate–or would
 risk violating–the First Amendment and, accordingly, has
 recognized some version of the ministerial exception.46 To the


       46
           See, e.g., EEOC v. Roman Catholic Diocese of Raleigh,
213 F.3d 795 (4th Cir. 2000); Rayburn v. Gen’l Conf. of Seventh
Day Adventists, 772 F.2d 1164 (4th Cir. 1985); Combs v. Central
Texas Annual Conf. of the United Methodist Church, 173 F.3d 343
(5th Cir. 1999); McClure v. Salvation Army, 460 F.2d 553 (5th Cir.
1972); Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d
698 (7th Cir. 2003); Young v. Northern Illinois Conf. of United
Methodist Church, 21 F.3d 184 (7th Cir. 1994); Scharon v. St.
Luke’s Episcopal Presbyterian Hosp., 929 F.2d 360 (8th Cir.
1991); Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir.
2004); Bollard v. Soc’y of Jesus, 196 F.3d 940 (9th Cir. 1999);
Gellington v. Chistian Methodist Episcopal Church, 203 F.3d 1299
(11th Cir. 2000); EEOC v. Catholic Univ. of Amer., 83 F.3d 455
(D.C. Cir. 1996); see also Starkman v. Evans, 198 F.3d 173 (5th
Cir. 1999) (applying ministerial exception to Americans with
Disabilities Act claim); Werft v. Desert Southwest Annual Conf. of
the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004)
(same).

     The First Circuit also addressed the application of the First
Amendment to a minister’s claims in Natal v. Christian Missionary

                               63
 extent that a claim involves the church’s selection of clergy–in
 other words, its choice as to who will perform particular
 spiritual functions47–most of these circuits have held that the



Alliance, 878 F.2d 1575 (1st Cir. 1989) Although the case
involved state law claims rather than any federal employment
discrimination law, the Court made clear that inquiry into
allegations related to a minister’s employment would be barred by
the First Amendment. Specifically, it explained:

       Because of the difficulties inherent in separating the
       message from the messenger–a religious
       organization’s fate is inextricably bound up with
       those whom it entrusts with the responsibilities of
       preaching its word and ministering to its
       adherents–Natal’s case necessarily falls within the
       scope of the Court’s monition. By its nature, the
       inquiry which Natal would have us undertake into
       the circumstances of his discharge plunges an
       inquisitor into a maelstrom of Church policy,
       administration, and governance. It is an inquiry
       barred by the Free Exercise Clause.

Id. at 1578.
       47
          In evaluating whether a particular employee is subject to
the ministerial exception, other circuits have concluded that the
focus should be on the “function of the position.” Rayburn, 772
F.2d at 1168. As a general rule, an employee will be considered a
minister if her primary duties include “teaching, spreading the
faith, church governance, supervision of a religious order, or
supervision of participation in religious ritual and worship.” Id. at
1169; see, e.g., Alicea-Hernandez, 320 F.3d at 703 (applying
ministerial exception to Hispanic Communications Director who
functioned as a “press secretary” for the church); Starkman, 198

                                 64
 exception bars any inquiry into a religious organization’s
 underlying motivation for the contested employment decision.48


F.3d at 175-76 (holding that Choir Director at Methodist church
was minister for purposes of First Amendment analysis); Catholic
Univ., 83 F.3d at 455 (applying exception to professor of canon law
at Catholic University). Although I do not view this list as
exclusive, I agree that the focus on the function of an employee’s
position is the proper one.
       48
           See Rayburn, 772 F.2d at 1169 (“[T]he free exercise
clause of the First Amendment protects the act of a decision rather
than a motivation behind it. In these sensitive areas, the state may
no more require a minimum basis in doctrinal reasoning than it
may supervise doctrinal content”); Combs, 173 F.3d at 350 (“We
cannot conceive how the federal judiciary could determine whether
an employment decision concerning a minister was based on
legitimate grounds without inserting ourselves into a realm where
the Constitution forbids us to tread.”); Young, 21 F.3d at 186
(quoting Rayburn, 772 F.2d at 1169 ); Scharon, 929 F.2d at 363
(“Personnel decisions by church-affiliated institutions affecting
clergy are per se religious matters and cannot be reviewed by civil
courts for to review such decisions would require the courts to
determine the meaning of religious doctrine and canonical law and
to impose a secular court’s view of whether in the context of the
particular case religious doctrine and canonical law support the
decision the church authorities have made. This is precisely the
kind of judicial second-guessing of decision-making by religious
organizations that the Free Exercise Clause forbids.”) (citations
omitted); Bollard, 196 F.3d at 947 (indicating that a “Jesuit order’s
choice of representative” is ordinarily “a decision to which we
would simply defer without further inquiry”); Minker, 894 F.2d at
1357 (finding that court need not determine whether reasons for
employment decision were “independently ecclesiastical in nature”
to apply ministerial exception).


                                 65
 I would likewise hold.

                                 A.

         The majority opines that adjudication of Petruska’s
 claims would not violate the Free Exercise Clause–unless and
 until Gannon articulates a “religious belief, religious doctrine,
 or internal regulation” as a justification for its decision to
 restructure–because the Constitution protects only “religious
 exercise.” Maj. Op. at 28 (citing City of Boerne v. Flores, 521
 U.S. 507, 564 (1997) (O’Connor, J, dissenting)). I agree with
 the majority’s basic premise that a church must be engaged in
 religious exercise in order to trigger protection under the Free
 Exercise Clause. In my view, however, the process of selecting
 a minister is per se a religious exercise. A minister is not merely
 an employee of the church; she is the embodiment of its
 message.       A minister serves as the church’s public
 representative, its ambassador, and its voice to the faithful. As
 the Fifth Circuit explained: “The relationship between an
 organized church and its ministers is its lifeblood. The minister
 is the chief instrument by which the church seeks to fulfill its



        As the majority notes in footnote 6, “[a]lthough the Eleventh
Circuit has recognized the ministerial exception, see Gellington,
203 F.3d 1299, it does not appear to address whether the exception
applies without regard to motive.” Maj. Op. at 13, n.6. Although
I generally agree with the majority’s characterization of Gellington,
I note that the Eleventh Circuit seems to tacitly approve of a
conclusion by the Fifth Circuit that “the constitutional protection
of religious freedom afforded to churches in employment actions
involving clergy exists even when such actions are not based on
issues of church doctrine or ecclesiastical law.” Gellington, 203
F.3d at 1303 (citing Combs, 173 F.3d at 350).

                                 66
 purpose.” McClure v. Salvation Army, 460 F.2d 553, 558-59
 (5th Cir. 1972). Accordingly, “[m]atters touching this
 relationship must necessarily be recognized as of prime
 ecclesiastical concern.” Id. at 559.49

         As previously noted, the Free Exercise Clause protects
 two rights: the right to believe and profess matters of faith and
 the right of religious institutions to decide questions of
 governance and internal organization. In this case, those rights
 are interrelated.

         First, like an individual, a church in its collective capacity
 must be free to express religious beliefs, profess matters of faith,
 and communicate its religious message. However, unlike an
 individual who can speak on her own behalf, the church as an
 institution must retain the corollary right to select its voice.
 Accordingly, any restriction of the church’s right to choose who
 will carry its spiritual message necessarily infringes upon its
 Free Exercise right to profess its beliefs. This right is squarely
 at issue in Petruska’s complaint.

        The second right protected by the Free Exercise
 Clause–the church’s right to decide matters of governance and
 internal organization–is also implicated by Gannon’s decision
 to restructure. The majority contends that this right only
 protects “a religious institution’s freedom to interpret its own


       49
          In addition to their role within the religious organization,
ministers also have a direct relationship with a church’s members:
Ministers marry their children and bury their parents; they act as
their spiritual counselors and serve as their moral advisors. To
these members, the selection of a minister is undoubtedly a
question of religious concern.

                                  67
 laws and internal regulations.” Maj. Op. at 31. Because
 Gannon has not identified an internal regulation or religious
 doctrine that required it to create the position of Vice President
 for Mission and Ministry and to hire Father Rouch to fill that
 position, the majority contends that the free exercise right to
 determine matters of governance and internal organization is not
 at issue. Maj. Op. at 29-31 (distinguishing Serbian Eastern
 Orthodox v. Milivojevich, 426 U.S. 696 (1976), Gonzalez v.
 Roman Archbishop of Manila, 280 U.S. 1 (1929), and Watson v.
 Jones, 80 U.S. (13 Wall.) 679 (1872)). I disagree.

         The Vice President for Mission and Ministry and the
 University Chaplain at Gannon both serve spiritual functions–in
 other words, the primary duties of those employees include
 “teaching, spreading the faith, church governance, supervision
 of a religious order, or supervision of participation in religious
 ritual and worship.”50 See Rayburn, 772 F.2d at 1169.

       50
          Petruska argues that she was not a “chaplain” as that term
is understood in the Roman Catholic Church, nor did she have any
written job requirements which specifically defined her position at
the University. Nevertheless, Petruska’s own complaint establishes
that her primary duties involved ministerial functions. Among
other things, Petruska alleges that she served as co-chair for the
Catholic Identity Task Force, held prayer services, and was
traditionally involved in planning liturgies. Moreover, as the
District Court correctly noted, her own “performance objectives”
included “develop[ing] strategies to increase participation in
sacramental life of [the] Gannon community.” It is clear from the
face of Petruska’s complaint that the functions she performed as
University Chaplain were ministerial in nature.

       With respect to the Vice President of Mission and Ministry
position, Petruska alleges that Rouch was installed in that role and

                                68
 Accordingly, Gannon’s decisions regarding who to install in
 those positions and the manner in which their duties would be
 divided were decisions about who would perform those
 constitutionally protected spiritual functions. Those choices are
 protected from governmental interference by the Free Exercise
 Clause.

         The majority further opines that there is “no doubt that
 religious organizations are bound by neutral laws of general
 applicability that do not require inquiry into religious doctrine.”
 Maj. Op. at 32-34 (citing Jones v. Wolf, 443 U.S. 595, 606
 (1979); Presbyterian Church in the United States v. Mary
 Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S.
 440, 445 (1969); Maryland and Virginia Eldership of the
 Churches of God v. Church of God at Sharpsburg, 396 US. 367,
 367-68 (1970); Employment Division, Dep’t of Human
 Resources of Oregon v. Smith, 494 U.S. 872 (1990)). The
 majority cites Jones for the proposition that “‘[t]he neutral-
 principles approach cannot be said to ‘inhibit’ the free exercise
 of religion, any more than do other neutral provisions of state
 law governing the manner in which churches own property, hire
 employees, or purchase goods.’” Maj. Op. at 32 (citing Jones,
 443 U.S. at 606)(emphasis in the majority opinion).

        Title VII is indeed a neutral law of general applicability,
 and it undoubtedly applies to lay employment decisions by
 religious institutions. 42 U.S.C. § 2000e-2; 42 U.S.C. § 2000e-3;


served in a supervisory capacity over the Chaplain’s Division. To
the extent that the Vice President of Mission and Ministry
supervises spiritual functionaries, at least some of the functions he
performs are, by definition, spiritual functions.


                                 69
but see 42 U.S.C. § 2000e-1(a) (providing an exception for
“religious corporation, association, educational institution, or
society with respect to employment of individuals of a particular
religion to perform work connected with the carrying on . . . of
its activities); 42 U.S.C. § 2000e-2(e) (permitting religious
educational institutions “to hire and employ employees of a
particular religion”). However, because I view a church’s
selection of its minister as essential to the church’s right to
express religious beliefs, profess matters of faith, and
communicate its religious message, I differ with the majority’s
conclusion that application of Title VII in this case does not
violate the Free Exercise Clause. See Catholic Univ., 83 F.3d at
463 (“We conclude from our review of the Supreme Court’s
jurisprudence that whereas the Free Exercise Clause guarantees
a church’s freedom to decide how it will govern itself, what it
will teach, and to whom it will entrust its ministerial
responsibilities, it does not guarantee the right of its members to
practice what their church may preach if that practice is
forbidden by a neutral law of general application.”). In reaching
its conclusion that the language in Jones applies equally to lay
employees and ministers, the majority has effectively refused to
adopt the ministerial exception recognized in our sister courts of
appeals. Because I agree with those courts that interference with
a church’s selection of clergy violates the First Amendment, I
cannot join my colleagues in the majority.

                                B.

        Although, in my view, the Free Exercise Clause bars
any claim which limits a church’s right to choose who will
fulfill particular spiritual functions–in this case, Petruska’s
Title VII discrimination and retaliation, civil conspiracy, and
negligent supervision and retention claims–I nevertheless

                                70
address the Establishment Clause in response to the majority’s
treatment of that issue. The majority holds that, unless and
until Gannon articulates a “religious belief, religious doctrine,
or internal regulation” as a justification for its decision to
install Father Rouch as Vice President of Mission and
Ministry, there is no risk of unconstitutional entanglement
under the Establishment Clause. I do not agree.

        In Lemon v. Kurtzman, the Supreme Court set forth a
three-prong test to determine the validity of a statute under the
Establishment Clause: “First, the statute must have a secular
legislative purpose; second, its principal or primary effect
must be one that neither advances nor inhibits religion; . . .
and finally, the statute must not foster ‘an excessive
government entanglement with religion.’” 403 U.S. 602, 612-
13 (1971) (citations omitted). Only the entanglement prong is
at issue with respect to Title VII.

        Excessive entanglement would arise if our inquiry into
Gannon’s decision to restructure traversed questions of the
validity of religious beliefs or practice. See Geary, 7 F.3d at
330. Because, as discussed above, a church’s choice
regarding who will perform its spiritual functions is inherently
a religious decision, any inquiry into that decision would
traverse such questions. Even though the decision here
involves an individual act rather than general practice, the
necessary inquiry–asking whether the church can justify its
employment decision with reference to church
doctrine–excessively entangles the court.

       The majority relies on Geary to support its conclusion
that application of Title VII in this case would not run afoul of
the Establishment Clause. The decision in Geary, however,

                               71
actually undermines the majority’s position. The Geary
Court, specifically distinguishes between decisions involving
clergy and those involving lay employees.

        In Geary, a fifty-year-old teacher was fired by the
Catholic school that employed her. The school’s stated
reason for dismissal was that Geary had married a divorced
man in violation of church doctrine. Id. We concluded that
resolution of Geary’s Age Discrimination in Employment Act
claims would not offend the Establishment Clause because the
inquiry was limited to whether the school discriminated
against her on the basis of her age and canceled her insurance
in retaliation for her initiation of legal proceedings. Id.
Geary did not challenge the validity of the religious doctrine;
she merely claimed that the religious doctrine did not
motivate the adverse employment action. Id. at 329. We held
that “when the pretext inquiry neither traverses questions of
the validity of religious beliefs nor forces a court to choose
between parties’ competing religious visions, that inquiry
does not present a significant risk of entanglement.” Id. at
330.

       The Geary Court itself, however, distinguished cases
involving members of the clergy, stating that
“notwithstanding Geary’s apparent general employment
obligation to be a visible witness to the Catholic Church’s
philosophy and principles, a court could adjudicate Geary’s
claims without the entanglement that would follow were
employment of clergy or religious leaders involved.” Id. at
331 (emphasis added). As we suggested in Geary,
entanglement necessarily results when a court inquires into a
decision regarding who performs spiritual functions on behalf
of the church, because, unlike lay employees, that decision is

                              72
inherently a religious matter. Again, notwithstanding the
majority’s claim that it is crafting a narrow ministerial
exception, its failure to acknowledge the distinction drawn in
Geary between lay employees and ministers is tantamount to
a refusal to adopt any such exception.

                               II.

        As described above, the ministerial exception should
operate to bar any claims that limit a church’s right to choose
who will perform its spiritual functions. Accordingly, in this
case, the relevant question with respect to each claim is whether
application of the state or federal law will limit Gannon’s right
to choose who performs particular spiritual functions on its
behalf. Petruska asserts six claims in her First Amended
Complaint: two violations of Title VII–discrimination and
retaliation (Counts I and II, respectively); fraudulent
misrepresentation (Count III); civil conspiracy (Count IV);
breach of contract (Count V); and negligent supervision and
retention (Count VI). I submit that resolution of Counts I, II,
IV, and VI would impose unconstitutional limits on Gannon’s
First Amendment rights. Consequently, I would hold that they
are barred by the ministerial exception.

                               A.

       Petruska alleges that Gannon demoted and constructively
discharged her from her position as University Chaplain based
on her gender and retaliated against her on the basis of her
opposition to sexual harassment at the University. Her
discrimination and retaliation claims are premised upon
Gannon’s decision to restructure, a decision which Petruska
argues was merely pretext for gender discrimination. It is clear

                               73
 from the face of Petruska’s complaint, however, that Gannon’s
 choice to restructure constituted a decision about who would
 perform spiritual functions and about how those functions would
 be divided.       Accordingly, application of Title VII’s
 discrimination and retaliation provisions to Gannon’s decision
 to restructure would violate the First Amendment.51 For that
 reason, Petruska’s Title VII claims (Counts I and II) should be
 dismissed.



       51
          I acknowledge that it may not always be clear whether a
minister’s Title VII claim involves “a church’s decision regarding
who will perform spiritual functions. For example, in Elvig v.
Calvin Presbyterian Church, 375 F.3d 951, 955 (9th Cir. 2004), the
Ninth Circuit considered a Presbyterian minister’s claims that she
was sexually harassed and subject to retaliation by her supervising
pastor. The Elvig Court recognized that a church’s decisions in
selecting its clergy are protected by the First Amendment and held
that to the extent that a plaintiff’s claims implicated ministerial
employment decisions, the claims were foreclosed. Nevertheless,
over a vigorous dissent, the Court concluded that, in that case, the
sexual harassment, hostile work environment, and retaliation
claims (verbal abuse and intimidation) did not implicate protected
employment decisions. It therefore reversed the district court’s
order dismissing those claims.

        In Petruska’s case, the retaliatory conduct at issue is the
employment decision itself, which Elvig recognizes as a decision
protected by the Free Exercise Clause. Because Petruska does not
raise a sexual harassment or hostile work environment claim and
because the retaliatory conduct she alleges constitutes a protected
choice, we need not decide today whether the types of claims in
Elvig would fall within the ministerial exception to Title VII.



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                                B.

         Petruska’s First Amended Complaint also contains three
 state tort claims: civil conspiracy, negligent supervision and
 retention, and fraudulent misrepresentation.52 The civil
 conspiracy53 and negligent supervision54 claims turn on
 Petruska’s ability to prove that Gannon’s restructuring
 constituted an unlawful or tortious act. In this case, the alleged
 underlying unlawful act is the violation of Title VII. Because I
 would hold that Gannon’s decision to restructure fell within the
 ministerial exception to Title VII, these claims should also be


       52
          I agree with the majority insofar as it concludes that
Petruska has failed to plead fraud with sufficient specificity under
Federal Rule of Civil Procedure 9(b), and accordingly, concur in its
judgment to affirm the dismissal of Count III.
       53
        Civil conspiracy requires proof that two or more persons
combined to do an unlawful act or to do an otherwise lawful act by
unlawful means. See, e.g., Thompson Coal Co. v. Pike Coal, 412
A.2d 466, 472 (Pa. 1979).
       54
          Under Pennsylvania law, an employer may be liable for
negligent supervision “where the employer fails to exercise
ordinary care to prevent an intentional harm to a third party which
(1) is committed on the employer’s premises by an employee acting
outside the scope of his employment and (2) is reasonably
foreseeable.” Mullen v. Topper’s Salon & Health Spa, Inc., 99 F.
Supp. 2d 553, 556 (E.D. Pa. 2000) (citations omitted). Although
Petruska’s First Amended Complaint is replete with references to
the current priest sexual abuse scandals and allegations that Bishop
Trautman covered up harassment and abuse directed towards other
individuals, the only intentional harm to which she claims she was
personally subjected is the underlying discrimination and
retaliation.

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dismissed.

                                C.

       Finally, Petruska asserts a state law breach of contract
claim. Petruska alleges that pursuant to her contract with
Gannon, she was entitled to serve on the President’s Staff and
lead the Chaplain’s Division. She claims that by removing her
from these positions, Gannon breached its promise.

       On its face, application of state contract law does not
involve government-imposed limits on Gannon’s right to select
its ministers: Unlike the duties under Title VII and state tort law,
contractual obligations are entirely voluntary. As the court
noted in Minker v. Baltimore Annual Conference of United
Methodist Church, 894 F.2d 1354, 1360 (D.C. Cir. 1990), “[a]
church is always free to burden its activities voluntarily through
contract, and such contracts are fully enforceable in civil court.”
See also, e.g., Rayburn, 772 F.2d at 1171 (“Like any other
organization, [churches] may be held liable . . . upon their valid
contracts.”). Enforcement of a promise, willingly made and
supported by consideration, in no way constitutes a state-
imposed limit upon a church’s free exercise rights.
Accordingly, application of state law to Petruska’s contract
claim would not violate the Free Exercise Clause.

       Similarly, at least at the outset, resolution of Petruska’s
breach of contract claim would not excessively entangle the
court in a religious matter. For purposes of evaluating
Petruska’s contract claim, we need not examine Gannon’s
decisions with respect to which individuals will perform
particular spiritual functions; rather, we need only inquire as to
whether Gannon promised Petruska that she would be entitled

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to perform those functions for a specified period of time. In that
respect, the claim potentially can “be adduced by a fairly direct
inquiry” into whether there was an offer, acceptance,
consideration, and breach. Minker, 894 F.2d at 1360. If
Gannon’s response to Petruska’s allegations raise issues which
would result in excessive entanglement, the claims may subject
to dismissal on summary judgment. See id. The allegations in
Petruska’s complaint, however, do not demand such a
conclusion. I would therefore remand this claim for further
consideration by the District Court.

                                III.

        A church’s choice regarding who will perform its
spiritual functions is, by its very nature, a religious decision. By
rejecting this basic premise, the majority effectively declines to
adopt a ministerial exception, placing this Court at odds with
every other federal court of appeals to consider the issue.
Because, in my view, the majority’s holding permits
governmental interference with a religious institution’s
constitutionally-protected choices in violation of the First
Amendment, I respectfully dissent.




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