                                                                       [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                        FOR THE ELEVENTH CIRCUIT         U.S. COURT OF APPEALS
                         ________________________          ELEVENTH CIRCUIT
                                                                02/17/2000
                                                            THOMAS K. KAHN
                               No. 99-10603                      CLERK
                         ________________________

                    D. C. Docket No. 97-02719-CV-P-W

LEE OTIS GELLINGTON,

                                                Plaintiff-Appellant,

                                   versus

CHRISTIAN METHODIST EPISCOPAL CHURCH, INC.,

                                                Defendant-Appellee.

                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                       _________________________
                            (February 17, 2000)


Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges.

BLACK, Circuit Judge:
      Appellant Lee Otis Gellington brought this action against his former employer,

Appellee Christian Methodist Episcopal Church, Inc., alleging he was retaliated

against and constructively discharged in violation of Title VII of the Civil Rights Act

of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. The district court granted

summary judgment in favor of Appellee after concluding that the ministerial exception

barred Appellant from bringing suit under Title VII against Appellee. Appellant

appeals, presenting the narrow question of whether the ministerial exception survives

the Supreme Court’s decision in Employment Division, Dep’t of Human Resources of

Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990). We conclude the ministerial

exception to Title VII survives the Supreme Court’s holding in Smith, and accordingly

affirm the order of the district court.

                                  I. BACKGROUND

      Appellant is an ordained minister of the Christian Methodist Episcopal (CME)

Church. CME Church is divided into ten Episcopal districts. Beginning in 1995,

Appellant served as a minister in a church located in Mobile, Alabama, which is part

of the Fifth Episcopal district. One of Appellant’s co-workers at the Mobile church

was Veronica Little, who also was employed as a minister. On more than one

occasion, Little confided in Appellant that her immediate supervisor had made sexual

advances toward her, and she asked Appellant for guidance on how to handle this


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situation. Appellant advised and aided Little in preparing an official complaint to the

church elders. Shortly after he aided Little in her complaint, Appellant was reassigned

to a church over 800 miles away from his home at a substantial reduction in salary.

Appellant states that he could not comply with this reassignment and consequently

was forced to resign.

      Appellant brought this action, alleging Appellee retaliated against him and

constructively discharged him for aiding Little in her sexual harassment complaint.

Appellee then filed a motion for summary judgment. The district court granted the

motion because it concluded that the ministerial exception to Title VII, created in

McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972), barred Appellant from

bringing his claim against Appellee. Appellant appeals this order.

                                   II. ANALYSIS

      We review de novo a grant of summary judgment by the district court, applying

the same standards. See Harris v. H & W Contracting Co., 102 F.3d 516, 518 (11th

Cir. 1996). We view the evidence, and all factual inferences that can reasonably be

drawn from the evidence, in the light most favorable to the nonmoving party. See

Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.

1997).




                                          3
       There is no question that the district court’s grant of summary judgment would

have been correct prior to 1990. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.

1972), established that Title VII is not applicable to the employment relationship

between a church and its ministers. See id. at 560.1 In McClure, a minister of the

Salvation Army sued the church under Title VII, alleging she was discriminated

against on the basis of sex and discharged because of her complaints regarding this

alleged discrimination. See id. at 555. After noting that the First Amendment has

built a “wall of separation” between church and state, and that there is a long history

of allowing churches to be free from state interference in matters of church

governance, the Fifth Circuit held that it would not apply Title VII to the minister-

church employment relationship. See id. at 558-560. The court reasoned that

applying Title VII to this relationship “would result in an encroachment by the State

into an area of religious freedom which it is forbidden to enter by the principles of the

free exercise clause of the First Amendment.” Id. at 560. The court concluded that

matters such as “the determination of a minister’s salary, his place of assignment, and

the duty he is to perform in furtherance of the religious mission of the church” were

all functions with which the state could not interfere. Id. at 559.


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.

                                                 4
      Since McClure, many other Circuits also have adopted the ministerial exception

to Title VII. See, e.g., Young v. Northern Illinois Conf. of United Methodist Church,

21 F.3d 184 (7th Cir. 1994) (holding that Free Exercise Clause forbids review of

church’s employment decisions involving clergy); Minker v. Baltimore Annual Conf.

of the United Methodist Church, 894 F.2d 1354 (D.C. Cir. 1990) (concluding that

allowing minister to sue church under ADEA would violate Free Exercise Clause);

Natal v. Christian and Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989) (following

McClure in concluding that clergyman is barred by First Amendment from suing not-

for-profit religious organization for wrongful termination); Rayburn v. General Conf.

of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985) (holding that plaintiff’s

Title VII challenge to denial of pastoral appointment was barred by religion clauses

of First Amendment).

      Appellant argues that although McClure was the law of this Circuit prior to

1990, the ministerial exception to Title VII created in McClure cannot exist

subsequent to the Supreme Court’s decision in Employment Division, Dep’t of Human

Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990).

In Smith, Alfred Smith and Galen Black challenged a determination that their religious

use of peyote, which resulted in their dismissal from employment, was “misconduct”

disqualifying them from receiving Oregon unemployment compensation benefits. See


                                          5
id. at 874, 110 S. Ct. at 1597-98. The claimants argued that Oregon violated the Free

Exercise Clause of the First Amendment when it denied them unemployment benefits

solely because of their sacramental use of peyote, a controlled substance under Oregon

law. See id. The Court held the Free Exercise Clause did not bar Oregon from

prohibiting the religious use of peyote, explaining that “the right of free exercise does

not relieve an individual of the obligation to comply with a valid and neutral law of

general applicability on the ground that the law proscribes. . . conduct that his religion

prescribes.” Id. at 879, 110 S. Ct. at 1600 (citations and internal quotation marks

omitted). The Court also rejected the argument that Oregon at least be forced to

satisfy the compelling interest test before applying a neutral law of general

applicability to religion-based conduct. See id. at 885, 110 S. Ct. at 1603.2

       Appellant argues that because Smith held that religious beliefs do not excuse

compliance with a generally applicable law, Appellee cannot evade the legal

obligations imposed by Title VII simply because it is a religious organization.

Appellant contends that because Title VII is a neutral law of general applicability, the




       2
         Congress attempted to reinstate the compelling interest test with respect to laws of general
applicability that would apply to religious practices in the Religious Freedom Restoration Act of
1993 (RFRA), 42 U.S.C. § 2000bb et seq. The Supreme Court, however, held that RFRA was
unconstitutional as applied to the states because it exceeded the scope of Congress’ power under §
5 of the Fourteenth Amendment. See City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 507 (1997).

                                                 6
First Amendment does not bar the application of Title VII to Appellee even if its

application would burden the free exercise of religion.

      Two Circuits have concluded the ministerial exception survives Smith. The

D.C. Circuit first considered this question in EEOC v. Catholic University of America,

83 F.3d 455 (D.C. Cir. 1996). A Catholic nun brought a Title VII sex discrimination

suit against the University after she was denied tenure. See id. at 459. In addressing

the plaintiff’s claim, the court noted that the “Supreme Court has recognized that

government action may burden the free exercise of religion” in two ways: “by

interfering with a believer’s ability to observe the commands or practices of his faith,

and by encroaching on the ability of a church to manage its internal affairs.” Id. at

460 (citations omitted). The court then noted that the ministerial exception was

developed, in part, to protect churches from the second type of government

interference. See id. at 462. The court reasoned, however, that Smith focused

exclusively on the first prong of the free exercise clause, the individual’s ability to

observe the practices of his or her religion. See id. at 462. Concluding that Smith

therefore was not applicable to the ministerial exception, the court stated “the burden

on free exercise that is addressed by the ministerial exception is of a fundamentally

different character from that at issue in Smith and in the cases cited by the Court in




                                           7
support of its holding. . . . [T]he ministerial exception does not present the dangers

warned of in Smith.” Id.

       The D.C. Circuit also concluded the Supreme Court’s rejection in Smith of the

compelling interest test did not affect the continuing existence of the ministerial

exception. See id. at 462-63. The court noted that although some of the cases

applying the ministerial exception cited the compelling interest test, the exception was

not based on this test, but rather on a “long line of Supreme Court cases that affirm the

fundamental right of churches to ‘decide for themselves, free from state interference,

matters of church government as well as those of faith and doctrine.’” Id. at 462

(quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North

America, 344 U.S. 94, 116, 73 S. Ct. 143, 154 (1952)). Consequently, the D.C.

Circuit held that the rejection of the compelling interest test did not alter this “century-

old affirmation of a church’s sovereignty over its own affairs.” Id. at 463.

       The Fifth Circuit has also held that the ministerial exception to Title VII

survives Smith. In Combs v. Central Texas Annual Conf. of the United Methodist

Church, 173 F.3d 343 (5th Cir. 1999), the court considered a Title VII sex

discrimination claim brought by a female clergy member against her church. See id.

at 345. In concluding that the suit was barred by the ministerial exception, the court

agreed with both the reasoning and the conclusion of the D.C. Circuit, noting


                                             8
      Smith’s language is clearly directed at the first strand of free exercise
      law, where an individual contends that, because of his religious beliefs,
      he should not be required to conform with generally applicable laws.
      The concerns raised in Smith are quite different from the concerns raised
      by Reverend Comb’s case, which pertains to interference in internal
      church management.

Id. at 349. The court reasoned 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. See id. at 350.

The court also concluded that this “fundamental right of churches to be free from

government interference in their internal management and administration” had not

been affected by the Smith Court’s refusal to apply the compelling interest test. Id.

      We agree with the Fifth and D.C. Circuits and hold that the ministerial

exception created in McClure has not been overruled by the Supreme Court’s decision

in Smith. The Smith decision focused on the first type of government infringement on

the right of free exercise of religion—infringement on an individual’s ability to

observe the practices of his or her religion. The second type of government

infringement—interference with a church’s ability to select and manage its own

clergy—was not at issue in Smith. The Court’s concern in Smith was that if an

individual’s legal obligations were contingent upon religious beliefs, those beliefs

would allow each individual “‘to become a law unto himself.’” Smith, 494 U.S. at 885,



                                           9
110 S. Ct at 1603 (quoting Reynolds v. United States, 98 U.S. 145, 167 (1879)). The

ministerial exception does not subvert this concern; it was not developed to provide

protection to individuals who wish to observe a religious practice that contravenes a

generally applicable law. Rather, the exception only continues a long-standing

tradition that churches are to be free from government interference in matters of

church governance and administration. See, e.g., Kedroff v. St. Nicholas Cathedral,

344 U.S. 94, 107, 73 S. Ct. 143, 150 (1952) (“Legislation that regulates church

administration, the operation of the churches, [or] the appointment clergy. . . prohibits

the free exercise of religion”). Also, because the ministerial exception is based on this

tradition and not on strict scrutiny, the Court’s rejection in Smith of the compelling

interest test does not affect the continuing vitality of the ministerial exception.

      We noted in McClure “[t]he 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.” 460 F.2d at 558-559. An attempt by the government to

regulate the relationship between a church and its clergy would infringe upon the

church’s right to be the sole governing body of its ecclesiastical rules and religious

doctrine.

      Furthermore, applying Title VII to the employment relationship between a

church and its clergy would involve “excessive government entanglement with


                                           10
religion” as prohibited by the Establishment Clause of the First Amendment. See

Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S. Ct. 2105, 2111 (1971). Investigation

by a government entity into a church’s employment of its clergy would almost always

entail excessive government entanglement into the internal management of the church.

A church’s view on whether an individual is suited for a particular clergy position

cannot be replaced by the courts’ without entangling the government “in questions of

religious doctrine, polity, and practice.” Jones v. Wolf, 443 U.S. 595, 603, 99 S. Ct.

3020, 3025 (1979). The Establishment Clause thus also mandates that churches retain

exclusive control over strictly ecclesiastical matters.

                                 III. CONCLUSION

      For the foregoing reasons, we find that the Free Exercise and Establishment

Clauses of the First Amendment prohibit a church from being sued under Title VII by

its clergy. The district court therefore properly granted Appellee’s motion for

summary judgment.

      AFFIRMED.




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