Filed 3/8/19
               CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION THREE



JULIE SU, as Labor Commissioner,      B275426
etc.,
                                      Los Angeles County
      Plaintiff and Appellant,        Super. Ct. No. BC520278

      v.

STEPHEN S. WISE TEMPLE,

      Defendant and Respondent.


     APPEAL from a judgment of the Superior Court of Los
Angeles County, Ernest Hiroshige, Judge. Reversed and
remanded with directions.
     David M. Balter for Plaintiff and Appellant.
     Capstone Law, Melissa Grant and Ryan H. Wu for Clergy
and Laity United for Economic Justice and Worksafe, as Amicus
Curiae on behalf of Plaintiff and Appellant.
     Horvitz & Levy, Jeremy B. Rosen, Felix Shafir and Joshua
C. McDaniel; Liebert Cassidy Whitmore, Michael C. Blacher,
David A. Urban, and Hengameh S. Safaei for Defendant and
Respondent.
      Eugene Volokh for the Fuller Theological Seminary and
Profs. Richard Garnett, Mark Scarberry, and Gregory Sisk, as
Amicus Curiae on behalf of Defendant and Respondent.
      James A. Sonne for the General Conference of Seventh-Day
Adventists and the Pacific Union Conference of Seventh-Day
Adventists, as Amicus Curiae on behalf of Defendant and
Respondent.
      Stephanie N. Taub for First Liberty Institute, as Amicus
Curiae on behalf of Defendant and Respondent.
      Eric C. Rassbach for the Church of God in Christ and the
Becket Fund for Religious Liberty, as Amicus Curiae on behalf of
Defendant and Respondent.
      Gibson, Dunn & Crutcher, Robert E. Dunn, Chelsea Mae
Thomas and Daniel Lawrence Chen for the Union of Orthodox
Jewish Congregations of America as Amicus Curiae on behalf of
Defendant and Respondent.
      Law Office of Michael L. Parker and Michael L. Parker;
Thomas C. Berg; and Kimberlee Colby for Association of
Christian Schools International, Christian Legal Society and
American Association of Christian Schools, as Amicus Curiae on
behalf of Defendant and Respondent.
                    _________________________




                               2
                       INTRODUCTION

       This case was brought by plaintiff and appellant Labor
Commissioner Julie Su (Commissioner) on behalf of preschool
teachers employed by defendant and respondent Stephen S. Wise
Temple (Temple). The Commissioner alleged that the Temple
violated various provisions of the Labor Code by failing to provide
its preschool teachers with rest breaks, uninterrupted meal
breaks, and overtime pay. The trial court granted summary
judgment in favor of the Temple, concluding the Commissioner’s
claims were barred by the “ministerial exception”—a
constitutional doctrine that provides a complete defense to
certain employment claims brought against religious institutions
by or on behalf of persons classified as ministerial employees.
       Although the Temple’s preschool curriculum has both
secular and religious content, its teachers are not required to
have any formal Jewish education, to be knowledgeable about
Jewish belief and practice, or to adhere to the Temple’s theology.
Further, the Temple does not refer to its teachers as “ministers”
or the equivalent, nor do the teachers refer to themselves as such.
Accordingly, we conclude the teachers are not “ministers” for
purposes of the ministerial exception. We therefore reverse the
judgment and remand for further proceedings.

                        BACKGROUND

1.     Facts
       The Temple is a Reform Jewish synagogue, whose mission
is to promote the Jewish faith and serve and strengthen the
Jewish community. The Temple’s Early Childhood Center (ECC),
which employs approximately 40 teachers, is an on-site preschool
for children five years of age and under.




                                3
       The ECC’s curriculum has a significant secular component.
ECC teachers spend much of the school day engaged with
children in indoor and outdoor play at various learning centers.
These learning centers include blocks, puzzles, games, books, and
science, and promote reading readiness, writing readiness, and
math readiness. Teachers also work with children on social skills,
including sharing and kindness, and assist with toileting, meals,
and snacks.
       The ECC’s curriculum also has a religious component
through which children are introduced to Jewish life, religious
ritual, and Judaic observance. The religious curriculum includes
the celebration of Jewish holidays, weekly Shabbat observance,
recitation of the ha-motzi (grace before meals) before meals and
snacks, and an introduction to Jewish values such as kehillah
(community), hoda’ah (gratitude) and shalom (peace and
wholeness). All ECC teachers participate in weekly Shabbat
services and teach religious concepts, music, singing, and dance.
The ECC is part of the Temple’s religious and educational
mission, and it fulfills a religious obligation of the Temple. The
ECC exists to instill and foster a positive sense of Jewish identity
and to develop in children favorable attitudes towards the values
and practices of Judaism.
       ECC teachers are not required to be adherents to the
Temple’s religious philosophy or, indeed, to be Jewish. As a
result, while some of the ECC’s teachers are Jewish, others are
non-Jewish or do not identify with any faith tradition. For
example, one former teacher was raised as a Catholic and, prior
to taking a job at the ECC, was employed as a teacher and
librarian at a private Catholic elementary school. Another
teacher is a practicing Catholic; and yet another taught




                                 4
catechism at a church. ECC teachers are not ordained as
religious leaders and do not hold themselves out as ministers of
the faith.
       ECC teachers are not required to have any theological
training, to be educated about Judaism, or to be proficient in
Hebrew. As a result, some ECC teachers are hired without any
knowledge of Jewish religion or practice. Once employed, they are
not required to undertake a course of theological study. Instead,
the ECC provides its teachers with Judaic reading materials,
including the Temple’s “holiday packets,” which include
explanations of each of the Jewish holidays and the symbols,
Hebrew vocabulary, foods, and songs associated with those
holidays. In addition, teachers receive guidance on religious
observance from the ECC’s rabbis and administrators trained in
Jewish education.
2.     The Present Action
       The Commissioner filed the present action in September
2013. The operative complaint alleges that the Temple classifies
its non-credentialed teachers as “non-exempt,” but it does not
provide them with 10-minute rest breaks, uninterrupted 30-
minute meal breaks, or overtime pay, as required by California’s
wage-and-hour laws (Lab. Code, §§ 226.7, 510, and 512; Cal. Code
Regs., tit. 8, § 11040, subds. 3, 11, 12). The complaint therefore
alleges statutory wage-and-hour violations, and it seeks meal and
rest period premiums, overtime pay, statutory and civil penalties,
and an injunction.
3.     The Temple’s Motion for Summary Judgment
       The Temple filed a motion for summary judgment. It
asserted that the ECC was a religious school and its preschool
teachers were “ministerial employees,” as defined by the United




                                5
States Supreme Court in Hosanna-Tabor Evangelical v. E.E.O.C.
(2012) 565 U.S. 171 (Hosanna-Tabor). The Temple therefore
urged that the Commissioner’s claims were barred by the
“ministerial exception,” which precludes government intrusion
into certain aspects of the employment relationship between a
religious institution and its “ministers.”
       The Commissioner opposed the Temple’s motion for
summary judgment. Although the Commissioner did not dispute
most of the Temple’s facts, she asserted the Temple’s preschool
program is primarily secular; ECC teachers are not required to
study or to adhere to the Temple’s theology to be hired or
maintain employment; ECC teachers are not ordained or
otherwise recognized as spiritual or religious leaders; ECC
teachers do not hold themselves out as ministers; the ECC is
open to children of parents who are not adherents of the Temple’s
theology; and the Temple’s rabbis, not its teachers, are primarily
responsible for the children’s religious instruction and spiritual
leadership. The Commissioner also asserted the First
Amendment does not preclude enforcement of facially neutral
labor regulations, and the Temple had not demonstrated that the
regulations at issue were substantively at odds with the Temple’s
religious beliefs or required conduct contrary to those beliefs.
Thus, the Commissioner argued, there was no evidence that the
wage-and-hour laws at issue burdened the Temple’s religious
beliefs in a manner that violated the First Amendment.
       The court granted the motion for summary judgment. It
concluded the Temple’s preschool teachers were “ministers”
within the meaning of the ministerial exception, explaining that
the exception is not limited to the heads of religious
congregations, and prior decisions had recognized that preschool




                                6
teachers in religious schools could serve ministerial functions. In
the present case, it was undisputed “that the ECC fulfills a
religious obligation of the Temple; ECC teachers further the
Temple’s mission and implement Judaic curriculum; ECC
teachers teach children about Jewish religious holidays; ECC
teachers participate in weekly Shabbat services; ECC teachers
teach student[s] to say the Jewish grace blessing before each
meal and snack; ECC teachers instruct children in saying the
Shema prayer and Oseh Shalom, a prayer for peace; teaching
children about religious practices, holidays, and rituals fulfills
religious commandments; ECC teachers help transmit Judaism
to future generations; Judaism does not preclude a non-Jew from
teaching the Jewish religion; early Jewish childhood education
impacts not only the child, but the Jewish identity of the child’s
parents and family; upon a child’s completion of the ECC
program, the majority of families continue their children’s Jewish
education at the Temple’s schools; and teaching music, singing,
and dance to students fulfills a religious obligation and Biblical
directive.” Under these facts, the court said, “a reasonable trier of
fact could not conclude that ECC teachers do not serve a
ministerial function.”
       The court entered judgment on August 16, 2016. The
Commissioner timely appealed.

                   STANDARD OF REVIEW

      A defendant moving for summary judgment must show
“that one or more elements of the cause of action … cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary
judgment is appropriate where “all the papers submitted show
that there is no triable issue as to any material fact and that the



                                  7
moving party is entitled to a judgment as a matter of law.” (Id.,
subd. (c).) We review a trial court’s grant of summary judgment
de novo, “considering all the evidence set forth in the moving and
opposition papers except that to which objections have been made
and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334.)

                          DISCUSSION

1.     The “Ministerial Exception”
       The First Amendment provides, in part, that “Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.” (U.S. Const., 1st Amend.)
       A “ministerial exception” to Title VII of the Civil Rights Act
of 1964 (42 U.S.C., § 2000e et seq.) (Title VII), grounded in the
Religion Clauses of the First Amendment, was first articulated by
the Fifth Circuit in McClure v. Salvation Army (5th Cir. 1972)
460 F.2d 553, and subsequently was recognized by every federal
circuit.1 As articulated by the federal courts, the ministerial

1
       See, e.g., Natal v. Christian and Missionary Alliance
(1st Cir. 1989) 878 F.2d 1575, 1578; Rweyemamu v. Cote (2d Cir.
2008) 520 F.3d 198, 204–209; Petruska v. Gannon University
(3d Cir. 2006) 462 F.3d 294, 303–307; E.E.O.C. v. Roman Catholic
Diocese of Raleigh, NC (4th Cir. 2000) 213 F.3d 795, 800–801;
Combs v. Cen Tx Ann Conf United Methodist Church (5th Cir.
1999) 173 F.3d 343, 345–350; Hollins v. Methodist Healthcare,
Inc. (6th Cir. 2007) 474 F.3d 223, 225–227); Schleicher v.
Salvation Army (7th Cir. 2008) 518 F.3d 472, 475; Scharon v.
St. Luke’s Episcopal Presbyterian Hosp. (8th Cir. 1991) 929 F.2d
360, 362–363; Werft v. Desert Southwest Annual Conference
(9th Cir. 2004) 377 F.3d 1099, 1100–1104; Bryce v. Episcopal
Church in Diocese of Colorado (10th Cir. 2002) 289 F.3d 648,
655–657; Gellington v. Christian Methodist Episcopal Church



                                 8
exception “operates to exempt from the coverage of various
employment laws the employment relationships between
religious institutions and their ‘ministers.’ ” (E.E.O.C. v. Roman
Catholic Diocese of Raleigh, NC, supra, 213 F.3d at p. s 800.) As
such, it operates as a “constitutionally compelled limitation on
civil authority” that ensures “that no branch of secular
government trespasses on the most spiritually intimate grounds
of a religious community’s existence.” (Ibid.)
        The Supreme Court has addressed the ministerial
exception just once, in Hosanna-Tabor, supra, 565 U.S. at p. 171.
At issue in that case was a church school’s termination of a
teacher, Cheryl Perich, who had been diagnosed with narcolepsy.
(Id. at p. 178.) Perich was a “called” teacher, who was “regarded
as having been called to [her] vocation by God through [her]
congregation.” (Id. at p. 177.) To be eligible to receive a call from
the congregation, Perich was required to have completed eight
courses of theological study, to have obtained the endorsement of
the local Synod district, and to pass an oral examination by a
faculty committee. Once called, Perich received the formal title
“ ‘Minister of Religion, Commissioned,’ ” and could be removed
only for cause and by a supermajority of her congregation. (Id. at
p. 177.)
        The school claimed it fired Perich because she threatened
to file suit, which violated the Church’s belief that Christians
should resolve their disputes internally. (Hosanna-Tabor, supra,
565 U.S. at p. 180.) Perich filed a charge with the Equal
Employment Opportunity Commission (EEOC), which sued the


(11th Cir. 2000) 203 F.3d 1299, 1301–1304; E.E.O.C. v. Catholic
University of America (D.C. Cir. 1996) 83 F.3d 455, 460–463.




                                  9
church for violating federal and state anti-discrimination laws.
(Id. at p. 179.) Invoking the “ministerial exception,” the church
argued the suit was barred by the First Amendment because the
EEOC’s claims concerned the employment relationship between a
religious institution and one of its ministers. (Id. at pp. 180–181.)
The district court agreed and granted summary judgment for the
church; the Sixth Circuit reversed. (Id. at pp. 180–181.)
       The Supreme Court reversed the Sixth Circuit and
reinstated the grant of summary judgment for the church.
Significantly, it agreed with the lower federal courts “that there
is … a ministerial exception,” which is grounded in both the Free
Exercise Clause and Establishment Clause of the First
Amendment. (Hosanna-Tabor, supra, 565 U.S. at p. 188.) The
court explained: “The members of a religious group put their faith
in the hands of their ministers. Requiring a church to accept or
retain an unwanted minister, or punishing a church for failing to
do so, intrudes upon more than a mere employment decision.
Such action interferes with the internal governance of the church,
depriving the church of control over the selection of those who
will personify its beliefs. By imposing an unwanted minister, the
state infringes the Free Exercise Clause, which protects a
religious group’s right to shape its own faith and mission through
its appointments. According the state the power to determine
which individuals will minister to the faithful also violates the
Establishment Clause, which prohibits government involvement
in such ecclesiastical decisions.” (Id. at pp. 188–189.) A
ministerial exception avoided these constitutional violations, the
court said, by “ensur[ing] that the authority to select and control
who will minister to the faithful—a matter ‘strictly ecclesiastical,’
[citation]—is the church’s alone.” (Id. at pp. 194–195.)




                                 10
       Having recognized the existence of a ministerial exception,
the court held that the exception applied in the case before it.
Although the court declined “to adopt a rigid formula for deciding
when an employee qualifies as a minister,” it identified the
following facts as relevant to its decision. (Hosanna-Tabor, supra,
565 U.S. at p. 190.)
       First, the Church “held Perich out as a minister,” with a
role distinct from that of most of its members. The court
explained: “When [the Church] extended [Perich] a call, it issued
her a ‘diploma of vocation’ according her the title ‘Minister of
Religion, Commissioned.’ She was tasked with performing that
office ‘according to the Word of God and the confessional
standards of the Evangelical Lutheran Church as drawn from the
Sacred Scriptures.’ The congregation prayed that God ‘bless [her]
ministrations to the glory of His holy name, [and] the building of
His church.’ In a supplement to the diploma, the congregation
undertook to periodically review [the teacher’s] ‘skills of ministry’
and ‘ministerial responsibilities,’ and to provide for her
‘continuing education as a professional person in the ministry of
the Gospel.’ ” (Hosanna-Tabor, supra, 565 U.S. at p. 191, internal
record citations omitted.)
       Second, Perich had the title of minister, which reflected
significant religious training followed by a formal process of
commissioning. Over the course of six years, she had completed
eight college-level courses in religious subjects and passed an oral
examination by a faculty committee at a Lutheran college. She
also had to obtain the endorsement of her local Synod district by
submitting a petition that contained her academic transcript,
letters of recommendation, personal statement, and written
answers to various ministry-related questions. Ultimately, she




                                 11
was commissioned as a minister only upon election by the
congregation, which recognized God’s call to her to teach.
(Hosanna-Tabor, supra, 565 U.S. at p. 191.)
       Third, Perich held herself out as a minister by accepting
“the formal call to religious service” and claiming a special
housing allowance on her taxes available only to employees
earning their compensation in the exercise of the ministry.
(Hosanna-Tabor, supra, 565 U.S. at pp. 191–192.)
       Fourth, Perich’s job duties “reflected a role in conveying the
Church’s message and carrying out its mission.” (Hosanna-Tabor,
supra, 565 U.S. at p. 192.) Perich taught her students religion
three times per week and led her students in prayer three times a
day. Once a week, she took her students to a school-wide chapel
service, and about twice a year she led the chapel service by
choosing the liturgy, selecting the hymns, and delivering a short
message based on Bible verses. Thus, she “performed an
important role in transmitting the Lutheran faith to the next
generation.” (Ibid.)
       The court concluded: “In light of these considerations—the
formal title given Perich by the Church, the substance reflected
in that title, her own use of that title, and the important religious
functions she performed for the Church—we conclude that Perich
was a minister covered by the ministerial exception.” (Hosanna-
Tabor, 565 U.S. at p. 192.) The court expressed no view whether
someone with Perich’s duties—including lay teachers who
performed the same tasks but were not “called” or identified as
ministers—“would be covered by the ministerial exception in the
absence of the other considerations.” (Id. at p. 193.)




                                 12
2.     The ECC’s Teachers are not “Ministers”
       The Temple contends that as a matter of law, the ECC’s
teachers are “ministers” as defined by Hosanna-Tabor. We
disagree.
       First, nothing in the record suggests the Temple held out
its ECC teachers as ministers. Unlike Perich, the teacher in
Hosanna-Tabor, ECC teachers are not given religious titles, and
they are not ordained or otherwise recognized as spiritual
leaders. To the contrary, it is undisputed that teachers are not
required to adhere to the Temple’s religious philosophy, to be
Temple members, or, indeed, even to be Jewish. As a result, while
some ECC teachers are practicing Jews, others are non-Jewish or
do not identify with any faith tradition.
       Second, in contrast to Perich, who was required to take
eight college-level courses on a variety of faith-based subjects and
pass an oral examination administered by a faculty committee at
a Lutheran college, the Temple does not require its teachers to
have any formal Jewish education or training. Thus, some ECC
teachers are hired without any knowledge of Jewish religion or
practice. Further, although teachers are provided with Judaic
reading materials and a “holiday packet” to use for classroom
activities, no course work in Judaism is required once teachers
are hired.
       Third, again in contrast to Perich, there is no evidence that
any of the ECC’s teachers held themselves out as ministers.
Instead, they describe themselves as “teachers” and have not
claimed any tax benefits available only to ministers.
       Only with respect to the fourth consideration in Hosanna-
Tabor do ECC teachers and Perich have anything in common:
They both taught religion in the classroom. As we have described,




                                13
ECC teachers are responsible for implementing the school’s
Judaic curriculum by teaching Jewish rituals, values, and
holidays, leading children in prayers, celebrating Jewish
holidays, and participating in weekly Shabbat services. As such,
they have a role in transmitting Jewish religion and practice to
the next generation.
       Considering all the relevant circumstances of the teachers’
employment, we conclude the ministerial exception does not
foreclose the Commissioner’s claims. Although the ECC’s
teachers are responsible for some religious instruction, we do not
read Hosanna-Tabor to suggest that the ministerial exception
applies based on this factor alone. To the contrary, it was central
to Hosanna-Tabor’s analysis that a minister is not merely a
teacher of religious doctrine—significantly, he or she
“personif[ies]” a church’s (or synagogue’s) beliefs and “minister[s]
to the faithful.” (Hosanna-Tabor, supra, 565 U.S. at pp. 188–189,
196.) The record in the present case is clear that the Temple’s
teachers did not play such a role in synagogue life. Indeed, as we
have said, many of the Temple’s teachers are not members of the
Temple’s religious community or adherents to its faith. Thus,
while the teachers may play an important role in the life of the
Temple, they are not its ministers.
       Our conclusion is consistent with the Ninth Circuit’s recent
decision in Biel v. St. James School (9th Cir. 2018) 911 F.3d 603
(Biel). Like the ECC teachers in the present case, the plaintiff in
Biel was a teacher in a religious school. After the school
terminated her employment, Biel sued, claiming the termination
violated the Americans With Disabilities Act. The Ninth Circuit
reversed the district court’s determination that Biel’s suit was
barred by the ministerial exception. (Id. at p. 605.) The court




                                 14
noted that Biel was not religiously educated or trained; she was
held out by the church as a “teacher,” not a “minister;” she was
employed at-will; and she did not claim benefits available only to
ministers. (Id. at pp. 608–609.) Although Biel taught lessons on
Catholic faith four days a week and incorporated religious themes
into her classroom environment and curriculum, the court
concluded based on “the totality of Biel’s role” that the ministerial
exception did not foreclose her claim. (Id. at p. 605.)
       Similarly, in Herx v. Diocese of Ft. Wayne-South Bend Inc.
(N.D. Ind. 2014) 48 F.Supp.3d 1168, 1176–1177 (Herx), the court
held that employment discrimination claims brought by a teacher
against a Catholic school were not barred by the ministerial
exception. The court explained: “[Plaintiff] has never led planning
for a Mass, hasn’t been ordained by the Catholic Church, hasn’t
held a title with the Catholic Church, has never had (and wasn’t
required to have) any religious instruction or training to be a
teacher at the school, has never held herself out as a priest or
minister, and was considered by the principal to be a ‘lay
teacher.’ … Labeling [plaintiff] a ‘minister’ based on her
attendance and participation in prayer and religious services
with her students, which was done in a supervisory capacity,
would greatly expand the scope of the ministerial exception and
ultimately would qualify all of the Diocese’s teachers as
ministers, a position rejected by the Hosanna-Tabor Court.”
(Id. at p. 1177; see also in Bohnert v. Roman Catholic Archbishop
of San Fran. (N.D. Cal. 2015) 136 F.Supp.3d 1094, 1113–1115,
[sexual harassment claim brought by a teacher at Catholic high
school was not barred by the ministerial exception because she
was not an ordained minister, was not “called,” and lacked a
theological education]; but see Grussgott v. Milwaukee Jewish




                                 15
Day School (7th Cir. 2018) 882 F.3d 655, 656–662 [applying
ministerial exception to Jewish grade school teacher]; Henry v.
Red Hill Evangelical Lutheran Church of Tustin (2011)
201 Cal.App.4th 1041 [applying ministerial exception to
Protestant preschool teacher; decided prior to Hosanna-Tabor].)
       The present case is analogous to Biel and Herx. Like the
teachers in those cases, the Temple’s preschool teachers teach
religion, but they need not be religiously educated and they are
not held out as ministers. Indeed, as we have said, many of the
Temple’s teachers are not practicing Jews. We conclude, like the
Biel and Herx courts, that the ministerial exception does not
apply.
       In so concluding, we do not, as the Temple suggests, treat
Hosanna-Tabor’s analysis as a “ ‘rigid formula for deciding when
an employee qualifies as a minister.’ ” That is, we do not conclude
that the ECC’s teachers are not ministers simply because they do
not satisfy all four of the Hosanna-Tabor factors or because the
teachers’ role in their religious community is different than
Perich’s role in hers. Hosanna-Tabor compels us to distinguish
between those church or synagogue employees who are
sufficiently central to a religious institution’s mission that they
are exempt from the protection of the state’s generally applicable
employment laws, and those who are not. And although ECC
teachers undeniably play an important role in Temple life, the
undisputed evidence does not establish that they “minister to the
faithful” or “personify its beliefs” in the manner contemplated by
Hosanna-Tabor. (Hosanna-Tabor, supra, 565 U.S. at pp. 188–
189.) As such, the claims advanced on their behalf by the
Commissioner are not, as a matter of law, barred by the
ministerial exception.




                                16
                        DISPOSITION

      The judgment is reversed.2 The trial court is directed to
issue a new order denying the Temple’s motion for summary
judgment and to conduct further proceedings consistent with this
opinion. The Temple’s motion to strike portions of the
Commissioner’s reply brief is denied. The Commissioner is
awarded her costs on appeal.

      CERTIFIED FOR PUBLICATION




                                          LAVIN, J.


I concur:




                  EGERTON, J.




2
 Given our holding, it is unnecessary to decide whether the
ministerial exception applies to California’s wage-and-hour laws.




                               17
EDMON, P.J., concurring in the judgment.

      I agree with the majority that the grant of summary
judgment must be reversed because the Temple has not
demonstrated that its employment relationship with its preschool
teachers is exempt from the state’s wage-and-hour laws.
However, I write separately to address a threshold question not
considered by the majority opinion: Whether the ministerial
exception, as described in Hosanna-Tabor Evangelical Lutheran
Church and School v. EEOC (2012) 565 U.S. 171 (Hosanna-
Tabor) and grounded in the First Amendment, applies at all in
the present case. For the reasons that follow, I would conclude
that the Temple has not demonstrated that the ministerial
exception has any application to the present dispute, which does
not touch on the Temple’s freedom to choose its ministers or to
practice its beliefs. I therefore would hold that the ministerial
exception does not bar the present suit without regard to whether
the Temple’s preschool teachers are “ministers.”
1.    Under Supreme Court Jurisprudence, Religious
      Institutions Generally Are Not Exempt from
      Neutral Laws of General Application
      The First Amendment provides, in part, that “Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.” (U.S. Const., 1st Amend.)
      The Supreme Court’s First Amendment jurisprudence
consistently has held that religious institutions and their
members are not exempt from most neutral laws of general
application. (Trinity Lutheran Church of Columbia, Inc. v. Comer
(2017) 137 S.Ct. 2012, 2020; Hosanna-Tabor, supra, 565 U.S. at
pp. 189–190.) For example, in Employment Div., Dept. of Human
Resources of Ore. v. Smith (1990) 494 U.S. 872 (Employment Div.
v. Smith), the Supreme Court upheld the denial of state
unemployment benefits to two members of a Native American
Church who had been fired from their jobs for using peyote,
which was a crime under Oregon law. The employees challenged
the denial of benefits, contending they had ingested peyote for
sacramental purposes at a Native American church ceremony,
and therefore the state’s action violated their right to free
exercise of religion. (Id. at pp. 874–875.) The court held that
while the Free Exercise Clause protects religious beliefs, “[w]e
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.” (Id. at pp. 878–879.) To the
contrary, the court said, its decisions “consistently held 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 (or prescribes)
conduct that his religion prescribes (or proscribes).’ ” (Id. at
p. 879.)
      The high court similarly concluded in Tony and Susan
Alamo Foundation v. Secretary of Labor (1985) 471 U.S. 290, in
which it considered whether applying the minimum wage,
overtime, and recordkeeping requirements of the Fair Labor
Standards Act (FLSA) to workers engaged in a religious
foundation’s commercial activities violated the foundation’s
rights under the First Amendment. The court concluded that
applying the FLSA did not violate the foundation’s Free Exercise
rights because “[i]t is virtually self-evident that the Free Exercise
Clause does not require an exemption from a governmental
program unless, at a minimum, inclusion in the program actually
burdens the claimant’s freedom to exercise religious rights”—a




                                  2
showing the foundation had not made. (Id. at p. 303.) The court
also concluded that the FLSA did not violate the foundation’s
Establishment Clause rights because the FLSA neither had a
“ ‘primary effect’ of inhibiting religious activity” nor fostered
“ ‘ “an excessive government entanglement with religion.” ’ ”
(Id. at p. 305.) Thus, the court said, notwithstanding the
foundation’s religious character, “application of the Act to the
Foundation’s commercial activities is fully consistent with the
requirements of the First Amendment.” (Id. at p. 306.)
2.     The “Ministerial Exception”
       The Supreme Court recognized a limited exception to the
principle that most neutral, generally-applicable laws may be
applied constitutionally to religious institutions in Hosanna-
Tabor, supra, 565 U.S. 171. There, Cheryl Perich, an elementary
school teacher whose employment was terminated after she was
diagnosed with narcolepsy, sued her church employer for
disability discrimination, seeking reinstatement and damages.
The church claimed it fired Perich because she threatened legal
action against the church, which it claimed was inconsistent with
its religious beliefs. (Id. at pp. 178–179.) The court resolved the
case in favor of the church, holding that the ministerial exception
precluded application of the Americans with Disabilities Act,
42 U.S.C. § 12101 et seq. to Perich’s claims. (Id. at p. 188.)
       Three aspects of the court’s analysis are notable for present
purposes. First, the court characterized the ministerial exception
as compelled by the First Amendment’s Religion Clauses. The
court explained that imposing an unwanted minister on a church
infringes both “the Free Exercise Clause, which protects a
religious group’s right to shape its own faith and mission through
its appointments,” and the Establishment Clause, “which




                                 3
prohibits government involvement in such ecclesiastical
decisions.” (Hosanna-Tabor, supra, 565 U.S. at pp. 188–189.) A
ministerial exception avoided these constitutional violations, the
court said, by “ensur[ing] that the authority to select and control
who will minister to the faithful—a matter ‘strictly ecclesiastical,’
[citation]—is the church’s alone.” (Id. at pp. 194–195.)
       Second, the court described the ministerial exception as
protecting the freedom of religious organizations to “accept or
retain” their own ministers. (Hosanna-Tabor, supra, 565 U.S. at
p. 188.) The court explained: “Requiring a church to accept or
retain an unwanted minister, or punishing a church for failing to
do so, intrudes upon more than a mere employment decision.
Such action interferes with the internal governance of the church,
depriving the church of control over the selection of those who
will personify its beliefs.” (Ibid., italics added.) And, the court
said, the ministerial exception was necessary to protect a
religious group’s right to shape its faith and mission “through its
appointments.” (Ibid., italics added.) Concluding otherwise, it
explained, would be to accept the “remarkable view” that the
Religion Clauses “have nothing to say about a religious
organization’s freedom to select its own ministers.” (Id. at p. 189,
italics added.)
       Third, in concluding that the ministerial exception barred
Perich’s suit against the school, the court “express[ed] no view”
on the doctrine’s application to other claimants and other claims.
It explained: “The case before us is an employment
discrimination suit brought on behalf of a minister, challenging
her church’s decision to fire her. Today we hold only that the
ministerial exception bars such a suit. We express no view on
whether the exception bars other types of suits, including actions




                                 4
by employees alleging breach of contract or tortious conduct by
their religious employers. There will be time enough to address
the applicability of the exception to other circumstances if and
when they arise.” (Hosanna-Tabor, supra, 565 U.S. at p. 196,
italics added.)
       In short, Hosanna-Tabor applied the ministerial exception
in a limited context: in a case implicating a church’s retention of
a minister. It expressly did not decide whether, and how, the
ministerial exception might apply to cases presenting other
issues.
3.     The Temple Has Not Demonstrated That the
       Ministerial Exception Applies in the Present
       Case
       The present appeal raises one of the many questions left
unanswered by Hosanna-Tabor—namely, whether the
ministerial exception applies to wage-and-hour claims such as
those alleged by the Commissioner in this case. On the record
before us, I would conclude that it does not.
       The Temple relies on a number of pre-Hosanna-Tabor cases
that have interpreted the ministerial exception broadly and have
suggested that it exempts from court scrutiny all “ ‘employment
decisions regarding . . . ministers,’ ” without regard to whether
those decisions “actually burden” the free exercise of religion or
result in excessive government entanglement with religion.
(Alcazar v. Corp. of Catholic Archbishop of Seattle (9th Cir. 2010)
598 F.3d 668, 673–674 (Alcazar), aff’d in part & vacated in part
(9th Cir. 2010) 627 F.3d 1288 [ministerial exception barred
application of Washington’s Minimum Wage Act to Catholic
seminarians suing for overtime wages]; see also Skrzypczak v.
Roman Catholic Diocese of Tulsa (10th Cir. 2010) 611 F.3d 1238




                                5
[ministerial exception barred religious director’s post-termination
claims against church for violations of various antidiscrimination
laws, including the Equal Pay Act]; Shaliehsabou v. Hebrew
Home of Washington (4th Cir. 2004) 363 F.3d 299 [ministerial
exception barred kosher supervisor’s overtime claim under
FLSA]; Schleicher v. Salvation Army (7th Cir. 2008) 518 F.3d 472
[ministerial exception barred minimum wage and overtime
claims brought by Salvation Army ministers under FLSA].) In
the view of those cases, an “actual burden” inquiry is not
necessary because “government interference with the church-
minister relationship inherently burdens religion.” (Alcazar, at
p. 673.) The Temple urges this broad view of the ministerial
exception, suggesting that requiring a religious employer to
demonstrate burden or excessive entanglement “miss[es] the
point.”
       In my view, Hosanna-Tabor neither requires nor permits
such an expansive reading of the ministerial exception. As noted
above, Hosanna-Tabor arose in a particular factual context—a
church’s termination of a minister—that most plainly calls for the
application of the ministerial exception. The opinion took pains
to emphasize that it “express[es] no view on whether the
exception bars other types of suits, including actions by
employees alleging breach of contract or tortious conduct by their
religious employers.” (Hosanna-Tabor, supra, 565 U.S. at p. 196.)
Nothing in the opinion, therefore, requires the ministerial
exception’s application to wage-and-hour claims brought by or on
behalf of ministers; to the contrary, the opinion expressly leaves
for future determination “the applicability of the exception to
other circumstances if and when they arise.” (Ibid.)




                                6
       Moreover, the constitutional imperative against
encroaching on a church’s selection of its ministers does not, as a
logical matter, suggest that churches must be exempted from all
laws that would regulate the employment relationship between a
religious institution and its ministers. Given the number and
variety of federal and state employment laws, it stands to reason
that some laws will impose a greater burden on religious
interests than will others. Accordingly, courts can, without
doctrinal inconsistency, exempt churches from the application of
some employment laws without exempting churches from all such
laws.
       Finally, because the ministerial exception is a First
Amendment doctrine, I believe its scope necessarily is limited to
what is necessary to comply with the Free Exercise and
Establishment Clauses. I therefore agree with other courts that
have suggested it strays too far from the rationale of the First
Amendment to extend constitutional protection to all
employment-related actions by churches that affect ministers.
(See, e.g., Bigelow v. Sassafras Grove Baptist Church (N.C.App.
2016) 247 N.C.App. 401, 411–412 [ministerial exception did not
bar minister’s claim against church for violating the North
Carolina Wage and Hour Act: “Here, plaintiff’s claims, rather
than asking the court to address ecclesiastical doctrine or church
law, require the court only to make a secular decision regarding
the terms of the parties’ contract and to apply the neutral
principles of the Wage and Hour Act”]; Sumner v. Simpson
University (2018) 27 Cal.App.5th 577, 580-581 [breach of contract
claim brought by terminated dean against theological seminary
held not barred by ministerial exception: “Defendants have failed
to show that resolution of Sumner’s contract claim would




                                7
excessively entangle the court in religious matters”]; Jenkins v.
Refuge Temple Church of God in Christ, Inc. (2018) 424 S.C. 320,
329–330 [pastor’s widow’s breach of contract claim was not
barred by ministerial exception because “the parties in this case
are not asking this court to resolve an employment
discrimination suit or a dispute over who will lead a church”];
Kirby v. Lexington Theological Seminary (Ky. 2014) 426 S.W.3d
597, 615 [ministerial exception did not bar tenured professor’s
claims against theological seminary for breach of contract; by
allowing claims to proceed, the government was not interfering in
seminary’s “selection of its ministers”]; Second Episcopal Afr.
Methodist Church v. Prioleau (D.C. App. 2012) 49 A.3d 812, 817
[ministerial exception did not bar minister’s breach of contract
action against church because it would not “require the court to
entangle itself in church doctrine”]; Bollard v. California Province
of Soc. of Jesus (9th Cir. 1999) 196 F.3d 940 (Bollard) [ministerial
exception did not bar novice priest’s sexual harassment claim
against Jesuit order].)
      For all of these reasons, I would reject the expansive
application of the ministerial exception suggested by the Temple,
and instead adopt the narrower construction articulated by the
Ninth Circuit in Bollard, supra, 196 F.3d 940. Bollard holds that
the ministerial exception insulates a religious organization’s
decisions regarding its ministers from judicial scrutiny when the
disputed practices involve the institution’s freedom to choose its
ministers or to practice its beliefs. This limited exception is
required by the Free Exercise and Establishment Clauses of the
First Amendment, providing “important protections to churches
that seek to choose their representatives free from government
interference and according to the dictates of faith and




                                 8
conscience.” (Id. at p. 945.) However, where a religious
institution “is neither exercising its constitutionally protected
prerogative to choose its ministers nor embracing the behavior at
issue as a constitutionally protected religious practice,” the
ministerial exception does not apply. (Id. at p. 944.)
      Bollard’s analysis recognizes that simply because the
person on whose behalf a suit is brought is a minister does not
necessarily mean that the aspect of the church-minister
employment relationship that warrants heightened constitutional
protection—a church’s freedom to choose its representatives and
practice its beliefs—is present. The constitutional rationale for
protecting some of a church’s personnel decisions concerning its
ministers is the necessity of allowing the church to choose its
representatives using whatever criteria it deems relevant.
(Bollard, supra, 196 F.3d at p. 947.) That rationale does not
apply in the present case, where what is at issue is not who the
Temple will select to educate its youngest students, but only
whether it will provide the people it has chosen with meal breaks,
rest breaks, and overtime pay.
      For all of these reasons, I would conclude that the Temple
has not demonstrated that the ministerial exception bars the
Commissioner’s claims. This is not a case about the Temple’s
choice of representative, a decision to which we would simply
defer without further inquiry. And, significantly, the Temple has
never offered a religious justification for its alleged failure to
abide by California’s wage-and-hour laws. Thus, there is no
danger that “by allowing this suit to proceed, we will thrust the
secular courts into the constitutionally untenable position of
passing judgment on questions of religious faith or doctrine.”
(Bollard, supra, 196 F.3d at p. 947.) On the record before us, I




                                9
therefore would conclude that the ministerial exception has no
application to the Commissioner’s wage and hour claims, and I
would reverse the grant of summary judgment on this basis.
       To be clear, I do not believe that the views I have just
articulated mean a religious institution can never demonstrate
that its employment relationship with a ministerial employee is
exempt from the wage-and-hour laws—to the contrary, I believe
that in appropriate cases, the First Amendment may well compel
an exemption from those laws to avoid “ ‘trench[ing] on [a]
Church’s protected ministerial decisions.’ ” (Alcazar, supra,
598 F.3d at p. 674.) What it does mean is that employers cannot
avoid claims of wage-and-hour violations merely by establishing
that they are religious institutions and their employees are
“ministers.” Instead, to avoid claims of wage-and-hour violations
like those alleged in this case, a religious employer must
demonstrate that applying the wage-and-hour laws to its
ministers violates either the Free Exercise Clause or the
Establishment Clause. (See, e.g., Bollard, supra, 196 F.3d at
pp. 945–950.) The Temple has made no such showing in this
case.




           EDMON, P. J.




                               10
