                               Lee Otis GELLINGTON, Plaintiff-Appellant,

                                                      v.

            CHRISTIAN METHODIST EPISCOPAL CHURCH, INC., Defendant-Appellee.

                                               No. 99-10603.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               Feb. 17, 2000.

Appeal from the United States District Court for the Northern District of Alabama. (No. 997-02719-CV-P-
W), Sam C. Pointer, Jr., Judge.

Before BLACK, Circuit Judge, and 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, 108 L.Ed.2d 876

(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 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).

        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


    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.

                                                      2
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.

        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 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, 108

L.Ed.2d 876 (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 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



                                                      3
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 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


   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. 2157, 138 L.Ed.2d 624 (1997).

                                                       4
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 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, 97 L.Ed. 120 (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 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

        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




                                                      5
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, 110 S.Ct. at 1603

(quoting Reynolds v. United States, 98 U.S. (8 Otto) 145, 167, 25 L.Ed. 244 (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, 97 L.Ed. 120 (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 religion" as prohibited by the Establishment Clause



                                                        6
of the First Amendment. See Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745

(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, 61 L.Ed.2d 775 (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.




                                                      7
