                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 KRISTEN BIEL,                                      No. 17-55180
                       Plaintiff-Appellant,
                                                      D.C. No.
                      v.                           2:15-cv-04248-
                                                      TJH-AS
 ST. JAMES SCHOOL, A CORP., a
 California non-profit corporation;
 DOES, 2–50, inclusive; ST. JAMES                      ORDER
 CATHOLIC SCHOOL, a California non-
 profit corporation; DOE 1,
                 Defendants-Appellees.



                        Filed June 25, 2019

        Before: D. Michael Fisher, * Paul J. Watford,
         and Michelle T. Friedland, Circuit Judges.

                             Order;
                   Dissent by Judge R. Nelson




    *
      The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2                  BIEL V. ST. JAMES SCHOOL

                          SUMMARY **


                 Employment Discrimination

    The panel denied a petition for panel rehearing and, on
behalf of the court, a petition for rehearing en banc following
the panel’s opinion reversing the district court’s summary
judgment in an employment discrimination action under the
Americans with Disabilities Act.

   In its opinion, the panel held that the First Amendment’s
ministerial exception to generally applicable employment
laws did not bar a teacher’s claim against the Catholic
elementary school that terminated her employment.

    Dissenting from the denial of rehearing en banc, Judge
R. Nelson, joined by Judges Bybee, Callahan, Bea,
M. Smith, Ikuta, Bennett, Bade, and Collins, wrote that the
panel’s opinion embraced the narrowest construction of the
ministerial exception, split from the consensus of other
circuits that the employee’s ministerial function should be
the key focus, and conflicted with the Supreme Court’s
decision in Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. E.E.O.C., 565 U.S. 171 (2012).




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                BIEL V. ST. JAMES SCHOOL                   3

                         ORDER

    The panel has voted unanimously to deny the petition for
panel rehearing. Judge Fisher recommends granting the
petition for rehearing en banc.

    The full court has been advised of the petition for
rehearing en banc. A judge of the court requested a vote on
en banc rehearing. The matter failed to receive a majority of
votes of non-recused active judges in favor of en banc
consideration. Fed. R. App. P. 35(f).

    The petition for rehearing and the petition for rehearing
en banc are DENIED.


R. NELSON, Circuit Judge, with whom BYBEE,
CALLAHAN, BEA, M. SMITH, IKUTA, BENNETT,
BADE, and COLLINS, Circuit Judges, join, dissenting from
the denial of rehearing en banc:

    By declining to rehear this case en banc, our court
embraces the narrowest construction of the First
Amendment’s “ministerial exception” and splits from the
consensus of our sister circuits that the employee’s
ministerial function should be the key focus. The panel
majority held that Kristen Biel, a fifth-grade teacher who
taught religion and other classes at a Catholic school, was
not a “minister” because the circumstances of her
employment were not a carbon copy of the plaintiff’s
circumstances in Hosanna-Tabor Evangelical Lutheran
Church & School v. E.E.O.C., 565 U.S. 171, 196 (2012). See
Biel v. St. James Sch., 911 F.3d 603 (9th Cir. 2018). The
panel majority’s approach conflicts with Hosanna-Tabor,
decisions from our court and sister courts, decisions from
state supreme courts, and First Amendment principles. And
4                BIEL V. ST. JAMES SCHOOL

it poses grave consequences for religious minorities
(collectively, a substantial plurality of religious adherents in
this circuit) whose practices don’t perfectly resemble the
Lutheran tradition at issue in Hosanna-Tabor.

   This is precisely the case warranting en banc review. We
adopted the ministerial exception en banc prior to Hosanna-
Tabor. See Alcazar v. Corp. of the Catholic Archbishop of
Seattle, 627 F.3d 1288 (9th Cir. 2010) (en banc). The
ministerial exception “is undeniably an issue of exceptional
importance” because its denial “portends serious
consequences for one of the bedrock principles of our
country’s formation—religious freedom.” Bollard v. Cal.
Province of the Soc’y of Jesus, 211 F.3d 1331, 1333 (9th Cir.
2000) (Wardlaw, J., joined by Kozinski, O’Scannlain, and
Kleinfeld, JJ., dissenting from denial of rehearing en banc).

    Since then, the Supreme Court unanimously upheld the
ministerial exception in Hosanna-Tabor, suggesting its
application in a case like this. Three Justices—Thomas,
Alito, and Kagan—filed or joined two separate concurrences
specifically proposing legal tests under which the ministerial
exception plainly applies here (and no Justice has proposed
a test undermining its application here). And virtually all
our sister courts—and state supreme courts—adopted the
ministerial exception in similar cases.

    In this case, five different amici—coalitions of
religiously diverse organizations and law professors—urge
this court to correct its legal error. As amici explain, the
panel majority’s approach trivializes the significant religious
function performed by Catholic school teachers. This
court’s narrow construction of the exception threatens the
autonomy of minority religious groups, like amici, “for
whom religious education is a critical means of propagating
the faith, instructing the rising generation, and instilling a
                 BIEL V. ST. JAMES SCHOOL                    5

sense of religious identity.” Brief of Gen. Conference of
Seventh-Day Adventists, Int’l Soc. for Krishna
Consciousness, Inc., Jewish Coalition for Religious Liberty,
and Shaykh Hamza Yusuf as Amici Curiae in Support of
Rehearing and Rehearing En Banc at 2.

    In light of all this, where does our court now stand on the
ministerial exception? Despite a unanimous Supreme Court
opinion upholding the exception, we are weaker, not
stronger, in applying it. Not once, not twice, but three times
now in the last two years, we have departed from the plain
direction of the Supreme Court and reversed our district
courts’ faithful application of Supreme Court precedent. See
also Puri v. Khalsa, 844 F.3d 1152 (9th Cir. 2017);
Morrissey-Berru v. Our Lady of Guadalupe Sch., No. 17-
56624, 2019 WL 1952853 (9th Cir. Apr. 30, 2019)
(unpublished). And in each successive case, we have
excised the ministerial exception, slicing through
constitutional muscle and now cutting deep into core
constitutional bone.

    In turning a blind eye to St. James’s religious liberties
protected by both Religion Clauses, we exhibit the very
hostility toward religion our Founders prohibited and the
Supreme Court has repeatedly instructed us to avoid.
Accordingly, I dissent.

                               I

    The ministerial exception is well-entrenched in our
constitutional framework. “The Supreme Court has long
recognized religious organizations’ broad right to control the
selection of their own religious leaders.” Puri, 844 F.3d
at 1157. In 2012, a unanimous Supreme Court formally
recognized a “ministerial exception” “grounded in the First
Amendment[] that precludes application of [employment-
6               BIEL V. ST. JAMES SCHOOL

discrimination] legislation to claims concerning the
employment relationship between a religious institution and
its ministers.” Hosanna-Tabor, 565 U.S. at 188. In doing
so, the Court reaffirmed “that it is impermissible for the
government to contradict a church’s determination of who
can act as its ministers.” Id. at 185.

                             A

    I begin with the text. “Congress shall make no law
respecting an establishment of religion, or prohibiting the
free exercise thereof . . . .” U.S. Const. amend. I. The
Establishment Clause and Free Exercise Clause have been
said to “often exert conflicting pressures,” Cutter v.
Wilkinson, 544 U.S. 709, 719 (2005), but they speak in
harmony to ensure dual protections for religious freedom.

    A troubled history of religious persecution led a young
United States to break from the familiarities of living under
the established Church of England. See Hosanna-Tabor,
565 U.S. at 182–83 (“Seeking to escape the control of the
national church, the Puritans fled to New England, where
they hoped to elect their own ministers and establish their
own modes of worship.” (citations omitted)). Creating a
Federal Government with powers “few and defined,” see
The Federalist No. 45 (James Madison), the Founders
confirmed that the new government, unlike the English
Crown, would have no role in filling ecclesiastical offices.
See Hosanna-Tabor, 565 U.S. at 184.

    To avoid entangling government and religion, our
government is prohibited from deciding matters inherently
ecclesiastical. See Watson v. Jones, 80 U.S. (13 Wall.) 679,
730–31 (1872). While the Establishment Clause expressly
limits the government’s power, the Free Exercise Clause
also affirmatively protects religious institutions, which are
                   BIEL V. ST. JAMES SCHOOL                        7

“independen[t] from secular control or manipulation,” as
they have the “power to decide for themselves, free from
state interference, matters of church government as well as
those of faith and doctrine.” Kedroff v. Saint Nicholas
Cathedral of Russian Orthodox Church in N. Am., 344 U.S.
94, 116 (1952). This includes the “[f]reedom to select the
clergy.” Id. By interfering with a religious institution’s
freedom to select those church personnel who promote its
faith and mission, the government exceeds its delegated
authority and infringes on that institution’s right to free
exercise of religion.

    The Founders understood these First Amendment
protections were so fundamental that enshrining them in the
Constitution outweighed the ancillary costs. These costs, in
some cases, are not insignificant. They include exemptions
for religious organizations from some laws protecting
society’s most vulnerable from employment discrimination.
See Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. For example, after the Salvation Army
terminated one of its ministers, the employee sued, alleging
a violation of Title VII. See McClure v. Salvation Army,
460 F.2d 553 (5th Cir. 1972). The Fifth Circuit held the First
Amendment barred the Title VII claim, reasoning that
“[m]atters touching” “[t]he relationship between an
organized church and its ministers . . . must necessarily be
recognized as of prime ecclesiastical concern” because a
church’s “minister is the chief instrument by which [it] seeks
to fulfill its purpose.” Id. at 558–59. In the decades since,
every Circuit to address the issue, including this one,1
unanimously recognized this “ministerial exception.”


    1
      See Werft v. Desert Sw. Annual Conference, 377 F.3d 1099, 1101–
04 (9th Cir. 2004).
8               BIEL V. ST. JAMES SCHOOL

                             B

    In Hosanna-Tabor, the Supreme Court followed the
uniform approach of the Courts of Appeals and held the
ministerial exception bars employment discrimination suits
by the group’s ministers. 565 U.S. at 190. The case involved
an employment discrimination claim brought by Cheryl
Perich, a former elementary teacher, against her employer,
Hosanna-Tabor Evangelical Lutheran Church and School.
Id. at 177–79. Perich was first employed as a “lay teacher”
and later became a “called teacher.” Id. at 178. She taught
kindergarten for four years and fourth grade for one year,
which involved teaching a variety of subjects, including
religion. Id. Specifically, Perich “taught a religion class
four days a week, led the students in prayer and devotional
exercises each day, and attended a weekly school-wide
chapel service. [She] led the chapel service herself about
twice a year.” Id. After Perich was diagnosed with
narcolepsy and terminated, the EEOC sued the school, and
Perich intervened, alleging violations of the Americans with
Disabilities Act (“ADA”), 104 Stat. 327, 42 U.S.C. § 12101
et seq. (1990). Id. at 180.

    The Court held the ministerial exception “ensures that
the authority to select and control who will minister to the
faithful—a matter ‘strictly ecclesiastical’—is the church’s
alone.” Id. at 194–95 (internal citation omitted) (quoting
Kedroff, 344 U.S. at 119). 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
                 BIEL V. ST. JAMES SCHOOL                    9

       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 188–89.

    The Court unanimously held the ministerial exception
barred Perich’s suit. Although Perich was an elementary
school teacher, the Court agreed with every Court of Appeals
to have considered the question that the “exception is not
limited to the head of a religious congregation.” Id. at 190.
However, the Court was “reluctant . . . to adopt a rigid
formula for deciding when an employee qualifies as a
minister.” Id. Instead, it found that “all the circumstances
of [Perich’s] employment,” supported “that the exception
covers Perich.” Id.

    The Court discussed four “considerations” which
supported its conclusion that Perich fell within the
exception’s scope: “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.” Id. at 192. Each of these
separate considerations evidenced Perich’s ministerial role,
including that her “job duties reflected a role in conveying
the Church’s message and carrying out its mission.” Id.
at 192. Thus, “the interest of religious groups in choosing
who will preach their beliefs, teach their faith, and carry out
10                  BIEL V. ST. JAMES SCHOOL

their mission” warranted application of the exception to
Perich. Id. at 196.

    While each of the four considerations confirmed Perich
was a minister, the Court’s discussion of them did not create
a test for courts to use to decide whether an employee was a
“minister” under the exception. The Court specifically
reserved the ministerial exception’s legal floor: “We express
no view on whether someone with Perich’s duties would be
covered by the ministerial exception in the absence of the
other considerations we have discussed.” Id. at 193
(emphasis added).

    Justice Alito, joined by Justice Kagan, however, did
express a view on this issue: “[C]ourts should focus on the
function performed by persons who work for religious
bodies.” Id. at 198 (Alito, J., concurring) (emphasis added). 2
This “functional consensus” was widespread before
Hosanna-Tabor and has remained dominant afterward. 3 As
such, nothing in the opinion “should . . . be read to upset
[the] consensus” among Courts of Appeals (including our
own 4) that took this “functional approach.” Id. at 204. The
concurrence also cautioned it would be a mistake, given the
country’s religious diversity, “if the term ‘minister’ or the
    2
      Justice Thomas went further, noting the Religion Clauses require
courts “to defer to a religious organization’s good-faith understanding of
who qualifies as its minister.” Id. at 196 (Thomas, J., concurring).

     3
      See Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 226 (6th
Cir. 2007) (referring to function as the “general rule”), abrogated in part
by Hosanna-Tabor, 565 U.S. at 195 n.4; infra Section IV.A.

     4
       “The Ninth Circuit too has taken a functional approach, just
recently reaffirming that ‘the ministerial exception encompasses more
than a church’s ordained ministers.’” Hosanna-Tabor, 565 U.S. at 204
(Alito, J., concurring) (quoting Alcazar, 627 F.3d at 1291).
                 BIEL V. ST. JAMES SCHOOL                   11

concept of ordination were viewed as central to the
important issue of religious autonomy that is presented in
cases like this one.” Id. at 198.

                              II

    The panel majority mistakes Hosanna-Tabor to create a
resemblance-to-Perich test using the “four considerations”
which the Supreme Court found evidenced Perich’s
ministerial role. Because Biel’s circumstances resembled
Perich’s in only one of the four areas, the panel majority held
erroneously that the exception did not apply.

    Biel taught fifth grade at St. James Catholic School in
Torrance. Biel, 911 F.3d at 605. She was responsible for
teaching her students all academic subjects and religion, to
which she was required to dedicate a minimum of 200
minutes each week. Biel v. St. James Sch., No. 15-04248,
2017 WL 5973293, at *1 (C.D. Cal. Jan. 24, 2017). She
taught religion at least four days per week, using a
curriculum and textbook grounded in the Catholic Faith and
in accordance with the Church’s teaching. Biel, 911 F.3d
at 605. Biel also supervised and joined her students during
twice-daily prayer led by students and escorted them to a
school-wide monthly mass. Id.

    Biel’s signed employment contract required her to work
toward St. James’s “overriding commitment” to the
“doctrines, laws, and norms” of the Catholic Church, and to
“model, teach, and promote behavior in conformity to the
teaching of the Roman Catholic Church.” Id. It also stated
the school’s mission: “to develop and promote a Catholic
School Faith Community within the philosophy of Catholic
education as implemented at [St. James], and the doctrines,
laws, and norms of the Catholic Church.” Id. at 612 (Fisher,
J., dissenting). The school’s faculty handbook further
12               BIEL V. ST. JAMES SCHOOL

required that teachers “participate in the Church’s mission”
of providing “quality Catholic education to . . . students,
educating them in academic areas and in . . . Catholic faith
and values.” Id. at 605–06 (majority op.).

    At Biel’s only formal teaching evaluation, the school’s
principal, Sister Mary Margaret, measured Biel’s
performance in both secular and religious aspects. Id. at 606.
The evaluation was positive, though noting areas for
improvement. Id. Less than six months later, Biel learned
she had breast cancer. Id. She told the school she would
miss work to undergo surgery and chemotherapy. Id.

    A few weeks later, Biel was informed her teaching
contract would not be renewed for the next academic year.
Id. Biel sued St. James, alleging her termination violated the
ADA. The district court determined the ministerial
exception applied and granted summary judgment in favor
of St. James. Biel, 2017 WL 5973293, at *3.

        Our court reversed in a 2–1 decision. Biel, 911 F.3d
603. The panel majority compared Biel’s circumstances
with Perich’s under each of the four “considerations,” but
concluded the only similarity between Biel and Perich was
that “they both taught religion in the classroom.” Id. at 609.
Contrasting Biel and Perich, the majority determined Biel
had “none of Perich’s credentials, training, or ministerial
background,” St. James did not “hold Biel out as a minister
by suggesting to its community that she has special expertise
in Church doctrine, values, or pedagogy beyond that of any
practicing Catholic,” id. at 608, and “nothing in the record
indicates that Biel considered herself a minister or presented
herself as one to the community,” id. at 609.

   Because, “[a]t most, only one of the four Hosanna-Tabor
considerations weigh[ed] in St. James’s favor,” the panel
                   BIEL V. ST. JAMES SCHOOL                       13

majority held the ministerial exception did not apply. Id.
at 610. The majority refused “to exempt from federal
employment law all those who intermingle religious and
secular duties but who do not ‘preach [their employers’]
beliefs, teach their faith, . . . carry out their mission . . . [and]
guide [their religious organization] on its way.’” Id. at 611
(quoting Hosanna-Tabor, 565 U.S. at 196). The panel
majority “decline[d] St. James’s invitation to be the first”
federal court of appeals to apply “the ministerial exception
in a case that bears so little resemblance to Hosanna-Tabor.”
Id. at 610.

                                 III

    When considering the “totality of the circumstances,” the
panel majority converted the four considerations discussed
by the Supreme Court into a comparative test: “Only after
describing all of these aspects of Perich’s position did the
Supreme Court hold . . . that Perich was a minister covered
by the ministerial exception.” Id. at 608 (emphasis added)
(internal quotation marks omitted). Under the panel
majority’s test, a religious organization must show that its
employee served a significant religious function and the
presence of at least one additional “consideration” to receive
protection under the ministerial exception.

    But Hosanna-Tabor mandates no such requirement. It
did not establish a test or set any legal floor that must be met
for the exception to apply. It held only that the exception
exists, applies to ADA claims, and covered Perich.
Hosanna-Tabor, 565 U.S. at 190. The panel majority
embraced the narrowest reading of the ministerial exception
and diverged from the function-focused approach taken by
our court previously, our sister courts, and numerous state
supreme courts.
14               BIEL V. ST. JAMES SCHOOL

     As our court recently observed, “The Supreme Court has
provided some guidance on the circumstances that might
qualify an employee as a minister within the meaning of the
ministerial exception.” Puri, 844 F.3d at 1160 (emphasis
added). Other circuits agree. See Grussgott v. Milwaukee
Jewish Day Sch., Inc., 882 F.3d 655, 658 (7th Cir. 2018),
cert. denied, 139 S. Ct. 456 (2018) (“Consequently,
Grussgott’s argument focuses on differentiating herself from
the teacher in that case, and she is correct that her role is
distinct from the called teacher’s in Hosanna-Tabor. But the
Supreme Court expressly declined to delineate a ‘rigid
formula’ for deciding when an employee is a minister.”
(citing Hosanna-Tabor, 565 U.S. at 190)); Fratello v.
Archdiocese of N.Y., 863 F.3d 190, 204–05 (2d Cir. 2017)
(“Hosanna-Tabor instructs only as to what we might take
into account as relevant, including the four considerations on
which it relied; it neither limits the inquiry to those
considerations nor requires their application in every case.”);
Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 176–
77 (5th Cir. 2012) (“Any attempt to calcify the particular
considerations that motivated the Court in Hosanna-Tabor
into a ‘rigid formula’ would not be appropriate . . . .
Application of the exception . . . does not depend on a
finding that [the employee] satisfies the same considerations
that motivated the Court to find that Perich was a minister
within the meaning of the exception.”).

    Ignoring the warnings of Justices Alito and Kagan (and
Justice Thomas), the panel majority found that because three
of the considerations—all of which relate to Biel’s title—
were not present, the exception did not apply. See Biel,
911 F.3d at 607–09. The only area in which it did find Biel
and Perich similar was in the religious function each
performed. Yet this similarity is particularly significant to
religious groups whose beliefs and practices may render the
                  BIEL V. ST. JAMES SCHOOL                    15

other three considerations less relevant, or not relevant at all.
Such is the case here.

     Comparing Biel’s title to Perich’s, the panel majority
reasoned, “it cannot be said that [Biel’s title of] Grade 5
Teacher ‘conveys a religious—as opposed to secular—
meaning.’” Biel, 911 F.3d at 608–09 (quoting Conlon v.
InterVarsity Christian Fellowship, 777 F.3d 829, 834–35
(6th Cir. 2015)). Unlike in Biel, Perich’s title in Hosanna-
Tabor was particularly relevant because, as the Court noted,
the Sixth Circuit “failed to see any relevance in the fact that
Perich was a commissioned minister.” Hosanna-Tabor,
565 U.S. at 192–93. Clarifying that her title “by itself, does
not automatically ensure coverage,” the Court explained that
“the fact that an employee has been ordained or
commissioned as a minister is surely relevant.” Id. at 193.
In this discussion, the Court did not suggest that the lack of
a title with religious significance suggests that an employee
does not hold a ministerial role. See Fratello, 863 F.3d
at 207 (“Nor would plainly secular titles (by themselves)
prevent application of the ministerial exception. We think
the substance of the employees’ responsibilities in their
positions is far more important.”). Indeed, requiring a
religious group to adopt a formal title or hold out its
ministers in a specific way is the very encroachment into
religious autonomy the Free Exercise Clause prohibits,
precisely because such a demand for ecclesiastical titles
inherently violates the Establishment Clause.

   Requiring religious titles is particularly problematic
when religious organizations do not bestow such titles on
some (or any) of their ministers yet clearly understand the
employee’s role to carry religious significance. This is why
“a recognized religious mission [which] underlie[s] the
description of the employee’s position” is also “surely
16                BIEL V. ST. JAMES SCHOOL

relevant,” just as an employee’s title or ordination may be.
Hosanna-Tabor, 565 U.S. at 193. Title may cut one way
because “an employee is more likely to be a minister if a
religious organization holds the employee out as a minister
by bestowing a formal religious title.” Puri, 844 F.3d
at 1160 (emphasis added). Lack of a religious title does not
suggest the opposite.

    It’s not surprising that Biel’s title, as a Catholic school
teacher, differed from Perich’s title, as a Lutheran school
teacher. “Minister,” although commonly used in Protestant
denominations, is “rarely if ever used in this way by
Catholics, Jews, Muslims, Hindus, or Buddhists.” Hosanna-
Tabor, 565 U.S. at 198 (Alito, J., concurring) (emphasis
added). Indeed, focus on Biel’s title “trivialized how the
distinct Catholic mission of integral formation permeated
everything Ms. Biel did as a teacher” and “downplays Ms.
Biel’s function as a Catholic teacher.” Brief for Nat’l
Catholic Educ. Ass’n as Amicus Curiae in Support of
Rehearing and Rehearing En Banc at 4.

    Catholicism contains a rich history replete with evidence
that its teachers play an essential role in its religious mission,
yet it doesn’t always embrace a formal title for such teachers
as Hosanna-Tabor did with Perich. See generally id. at 5–9.
Because of this, St. James thoroughly explained in its
Motion for Summary Judgment why the role of the teacher
comes with “duties and responsibilities” to be “performed
within the School’s overriding commitment to developing its
faith” by incorporating “Catholic values and traditions
throughout all subject areas, not just during the Religion
course.” St. James’s Mot. For Summ. J. at 3–4, Biel v. St.
James Sch., No. 15-04248, ECF No. 65. Biel, as a teacher,
played an “instrumental role in furthering and promoting the
Catholic faith as part of her daily job duties.” Id. at 13.
                    BIEL V. ST. JAMES SCHOOL                          17

    Nor is it surprising that a Catholic school’s practices
regarding ordination differ. As with title, religious training
may be relevant, as it was in the Lutheran context. But other
religious groups don’t always require similar formal training
yet clearly bestow ministerial roles. The concept of
ordination—although recognized by some, and by some
only as to certain offices—“has no clear counterpart” in
others. 5 Hosanna-Tabor, 565 U.S. at 198 (Alito, J.,
concurring).     The “Catholic Church has repeatedly
emphasized that the growth of lay Catholic teachers—those
who are succeeding roles previously held by religious
orders, sisters, brothers, and clergy—does not change a
Catholic teacher’s responsibilities.” Brief of Nat’l Catholic
Educ. Ass’n as Amicus Curiae in Support of Rehearing and
Rehearing En Banc at 14; see also id. at 8–9 & n.2 (“only
2.8% of Catholic full-time professional staff are either
members of the clergy or religious orders”). These diverse
religious practices are why Justices Alito and Kagan
cautioned against emphasis on title.

    Additionally, courts are ill-equipped to gauge the
religious significance of titles or the sufficiency of training.
Biel’s title may appear to carry little or no religious
significance to a court unfamiliar with the customs of
Catholic education, but Biel’s employment at St. James had
significant religious substance. See Biel, 911 F.3d at 612–
13, 616–18 (Fisher, J., dissenting) (documents, “including
her employment contract, a performance review, and the
faculty handbook,” all supported applying the exception).
Thus, when noting that Biel’s title of “teacher” cannot be

    5
       For example, Jehovah’s Witnesses “consider all” adherents to be
“ministers,” while in Islam, “every Muslim can perform the religious
rites, so there is no class or profession of ordained clergy.” Hosanna-
Tabor, 565 U.S. at 202 nn.3–4 (Alito, J., concurring) (citations omitted).
18               BIEL V. ST. JAMES SCHOOL

said to convey a religious meaning, the panel majority, just
like the now-reversed Sixth Circuit in Hosanna-Tabor,
overlooks the “recognized religious mission” which
“underlie[s] the description of the employee’s position.”
Hosanna-Tabor, 565 U.S. at 193.

    Furthermore, ignoring this history and these practices
risks the very Establishment Clause violation the ministerial
exception was intended to prevent. As Justice Thomas
explains:

       Our country’s religious landscape includes
       organizations with different leadership
       structures and doctrines that influence their
       conceptions of ministerial status.         The
       question whether an employee is a minister is
       itself religious in nature, and the answer will
       vary widely. Judicial attempts to fashion a
       civil definition of “minister” through a
       bright-line test or multi-factor analysis risk
       disadvantaging those religious groups whose
       beliefs, practices, and membership are
       outside of the “mainstream” or unpalatable to
       some.

Id. at 197 (Thomas, J., concurring).

    Other courts have rightly considered these differences.
For example, the Massachusetts Supreme Judicial Court
applied the ministerial exception to a teacher at a Jewish
school, although “she was not a rabbi, was not called a rabbi,
and did not hold herself out as a rabbi” on a record “silent as
to the extent of her religious training.” Temple Emanuel of
Newton v. Mass. Comm’n Against Discrim., 975 N.E.2d 433,
443 (Mass. 2012).
                   BIEL V. ST. JAMES SCHOOL                         19

    Finally, the panel majority also contrasted how Perich
held herself out as a minister, noting “nothing in the record
indicates that Biel considered herself a minister or presented
herself as one to the community.” Biel, 911 F.3d at 609.
That Perich held herself out as a minister merely evidenced
her ministerial role; it did not institute a requirement that
others must hold themselves out as ministers to qualify for
the exception. That is one way in which an employee is
“more likely to be considered a minister.” Puri, 844 F.3d
at 1160.

    Biel’s religious duties are far more relevant than whether
she personally felt she was a minister. See Grussgott,
882 F.3d at 660 (“Grussgott’s opinion does not dictate what
activities the school may genuinely consider to be
religious.”). Presumably, any plaintiff who wishes to avoid
the application of the exception will emphasize why she did
not consider herself a minister.

    In sum, as title, training, and how an employee holds
herself out differ widely depending on tradition, courts have
rightly focused on the fourth consideration—function.

                                 IV

    The panel majority rejected a function-focused approach
embraced by all other circuits, including our own, before and
after Hosanna-Tabor, in favor of its resemblance test.
Despite Biel’s religious function, the panel majority refused
to apply the exception because it determined the other
considerations were not present. 6 Biel’s significant religious

    6
      However, Judge Fisher in dissent persuasively found two of the
“considerations” weighed in favor of the exception. See Biel, 911 F.3d
at 616–20, 622 (concluding the ministerial exception applied because of
20                 BIEL V. ST. JAMES SCHOOL

function, as a Catholic school teacher who teaches religion,
demonstrates why the exception applies.

                                 A

    The panel majority mistakes Hosanna-Tabor to hold that
the ministerial exception cannot apply based on important
religious functions alone, despite the Court’s express
reservation of the question. See Biel, 911 F.3d at 609
(rejecting that the exception applies based on function and
“[i]f it did, most of the analysis . . . would be irrelevant
dicta”); id. at 610 (“the other considerations that guided the
reasoning in Hosanna-Tabor and its progeny are not present
here”).

    Our court should have adhered to circuit precedent and
followed the lead of our sister circuits by focusing on “the
function performed by persons who work for religious
bodies.” Hosanna-Tabor, 565 U.S. at 198 (Alito, J.,
concurring). The majority’s departure from the functional
approach is even more surprising because the court has
previously placed more emphasis on function post-
Hosanna-Tabor.

        [A]n employee whose “job duties reflect a
        role in conveying the Church’s message and
        carrying out its mission” is likely to be
        covered by the exception, even if the
        employee devotes only a small portion of the
        workday to strictly religious duties and




substance reflected in her title and important religious functions she
performs).
                 BIEL V. ST. JAMES SCHOOL                    21

       spends the balance of her time performing
       secular functions.

Puri, 844 F.3d at 1160 (internal brackets omitted) (quoting
Hosanna-Tabor, 565 U.S. at 192). Teachers, like Biel, at
mission-driven schools, like St. James, convey the Church’s
message and carry out its mission. In this court, this renders
the employee “likely to be covered by the exception.” Id.
By allowing the panel majority’s decision to stand, we have
allowed a panel to contradict our precedent in a way that
strips the exception of its core constitutional purpose.

    After Hosanna-Tabor, other circuits have placed greater
emphasis on an employee’s function. See Lee v. Sixth Mount
Zion Baptist Church of Pittsburgh, 903 F.3d 113, 122 n.7 (3d
Cir. 2018) (“[T]he ministerial exception applies to any
claim, the resolution of which would limit a religious
institution’s right to choose who will perform particular
spiritual functions.”) (internal quotation marks omitted);
Grussgott, 882 F.3d at 661 (finding teacher fell within
exception, noting school intended plaintiff to take on a
religious role including functions not part of a teacher’s job
at a secular school); Fratello, 863 F.3d at 205 (“Where, as
here, the four considerations are relevant in a particular case,
‘courts should focus’ primarily ‘on the function[s]
performed by persons who work for religious bodies.’”
(quoting Hosanna-Tabor, 565 U.S. at 198 (Alito, J.,
concurring))); Cannata, 700 F.3d at 177 (applying the
exception because plaintiff performed important “function”
that “furthered the mission of the church and helped convey
its message”).

   Similarly, state supreme courts have emphasized the
importance of function. See Temple Emanuel of Newton,
975 N.E.2d at 443 (holding function alone sufficed to apply
22               BIEL V. ST. JAMES SCHOOL

the exception); Kirby v. Lexington Theological Seminary,
426 S.W.3d 597, 613 (Ky. 2014) (courts should focus on the
“actual acts or functions conducted by the employee”).

                              B

    The ministerial exception protects the “interest of
religious groups in choosing who will preach their beliefs,
teach their faith, and carry out their mission.” Hosanna-
Tabor, 565 U.S. at 196.            It “insulates a religious
organization’s ‘selection of those who will personify its
beliefs.’” Puri, 844 F.3d at 1159 (quoting Hosanna-Tabor,
565 U.S. at 188). Justices Alito and Kagan found the
ministerial exception “should apply to any ‘employee’ who
leads a religious organization, conducts worship services or
important religious ceremonies or rituals, or serves as a
messenger or teacher of its faith.” Hosanna-Tabor, 565 U.S.
at 199 (Alito, J., concurring) (emphasis added). On many
occasions, the Court has recognized the “critical and unique
role of the teacher in fulfilling the mission of a church-
operated school.” NLRB v. Catholic Bishop of Chi., 440 U.S.
490, 501 (1979); see also Lemon v. Kurtzman, 403 U.S. 602,
617 (1971) (“Religious authority necessarily pervades [the
Catholic] school system.”).

    Catholic school teachers certainly hold this special role.
See Brief of Nat’l Catholic Educ. Ass’n as Amicus Curiae in
Support of Rehearing and Rehearing En Banc at 5–9
(schools and teachers lay at the core of the church’s
ministry). According to the Vatican, the Catholic Church
founded schools “because she considers them as a privileged
means of promoting the formation of the whole man, since
the school is a centre in which a specific concept of the
world, of man, and of history is developed and conveyed.”
Id. at 5 (quoting The Sacred Congregation for Catholic
Education, The Catholic School #8(5) (1977)). Teachers of
                     BIEL V. ST. JAMES SCHOOL                            23

religion at religious schools, regardless of title, training, or
official ordination, effectuate this purpose and carry out the
Church’s mission by ministering to students. 7

    At St. James, teachers “preach” and “teach” the school’s
Catholic beliefs and faith. By instructing new generations,
teachers carry out the school’s mission, precisely what a
unanimous Supreme Court found relevant. Hosanna-Tabor,
565 U.S. at 192. Teachers personify the beliefs of the school
and serve a crucial role in providing a holistic education to
students. Biel’s religious duties and function as a teacher at
St. James show she was “entrusted with teaching and
conveying the tenets of the [Catholic] faith to the next
generation” and played a “substantial role in conveying the
Church’s message and carrying out its mission.” Id. at 200,
204 (Alito, J., concurring) (internal quotation marks
omitted). Employment decisions relating to those who serve
this function is precisely what the ministerial exception is
supposed to protect.



    7
       The religious nature of teachers is not unique to Catholicism. See
Brief for Church of God in Christ, Inc. and Union of Orthodox Jewish
Congregations of Am. as Amicus Curiae in Support of Rehearing and
Rehearing En Banc at 1, 14 (parochial K–12 schools teach “religious and
secular studies in a holistic environment”; a central Jewish prayer repeats
the Biblical directive to “[t]ake to heart these instructions with which
[God] charges you this day” and to “[i]mpress them upon your children”
(quoting Worship Services: V’ahavta (Read), ReformJudaism.org,
https://tinyurl.com/yddle9l6)); Brief for Gen. Conference of Seventh-
day Adventists, Int’l Soc’y for Krishna Consciousness, Inc., Jewish
Coal. for Religious Liberty, and Shaykh Hamza Yusuf as Amicus Curiae
in Support of Rehearing and Rehearing En Banc at 2 (“[R]eligious
education is a critical means of propagating the faith, instructing the
rising generation, and instilling a sense of religious identity” for minority
religious groups like amici.).
24               BIEL V. ST. JAMES SCHOOL

    Our sister circuits pay closer attention to function,
particularly in religious educational settings like the one
here. See, e.g., Grussgott, 882 F.3d at 657 (Jewish Day
School teacher’s role fell within “ministerial exception as a
matter of law,” given “[h]er integral role in teaching her
students about Judaism and the school’s motivation in hiring
her, in particular, demonstrate that her role furthered the
school’s religious mission”); Fratello, 863 F.3d at 208–09
(former principal at Catholic school was a minister,
emphasizing “function” was “the most important
consideration”); Conlon, 777 F.3d at 837 (finding spiritual
director at Christian college educational group a minister).

     Indeed, religious groups will have differing “views on
exactly what qualifies as an important religious position, but
it is nonetheless possible to identify a general category of
‘employees’ whose functions are essential to the
independence of practically all religious groups.” Hosanna-
Tabor, 565 U.S. at 200 (Alito, J., concurring). Among such
groups are “those who are entrusted with teaching and
conveying the tenets of the faith to the next generation.” Id.
Biel was certainly entrusted with this duty.

    The panel majority’s minimized view of the religious
significance of Biel’s role as a teacher stands in stark
contrast to this court’s view of the role of teachers in secular
contexts. This court recently expounded on the instrumental
role of a high school football coach—a role “akin to being a
teacher”—as his “multi-faceted” job “entailed both teaching
and serving as a role model and moral exemplar,” because
of which he had a “duty to use his words and expressions to
‘instill[ ] values.’” Kennedy v. Bremerton Sch. Dist.,
869 F.3d 813, 825–27 (9th Cir. 2017), cert. denied, 139 S.
Ct. 634 (2019) (citations omitted). If true at a secular public
school, how much more significant the role of an elementary
                    BIEL V. ST. JAMES SCHOOL                           25

school teacher at a Catholic school who teaches religion on
a daily basis?

    Religion teaches morals and instills values, and “[t]he
various characteristics of the [parochial] schools make them
a powerful vehicle for transmitting the Catholic faith to the
next generation.” Lemon, 403 U.S. at 616 (internal quotation
marks omitted). 8 Teachers effectuate this purpose, and
“[w]hen it comes to the expression and inculcation of
religious doctrine, there can be no doubt that the messenger
matters.” Hosanna-Tabor, 565 U.S. at 201 (Alito, J.,
concurring). This court’s high view of the important role of
teachers as role models for morality in a secular public
school does not square with its view that teachers of religion
at a religious school carry little religious significance.

                                    C

    Our court is now the first to issue an opinion narrowing
the First Amendment’s ministerial exception to apply only
where an employee of a religious organization serves a

    8
       Whatever the continuing value of the legal test in Lemon, the
Supreme Court’s recognition of the religious mission of parochial
schools remains unchallenged. See Am. Legion v. Am. Humanist Ass’n,
No.17-1717, slip op. at 12–16 (U.S. June 20, 2019) (plurality op. of
Alito, J., joined by Roberts, C.J., Breyer, & Kavanaugh, JJ.) (“In many
cases, this Court has either expressly declined to apply the test or has
simply ignored it.”); id., slip op. at 1–4 (Kavanaugh, J., concurring)
(“[T]he Lemon test is not good law and does not apply to Establishment
Clause cases . . . .”); id., slip op. at 6–7 (Thomas, J., concurring in the
judgment) (“I would . . . overrule the Lemon test in all contexts.”); id.,
slip op. at 6–9 (Gorsuch, J., concurring in the judgment) (“Lemon was a
misadventure.”); see also Freedom From Religion Found., Inc. v. Chino
Valley Unified Sch. Dist. Bd. of Educ., 910 F.3d 1297, 1305–07 (9th Cir.
2018) (R. Nelson, J., joined by Bybee, Callahan, Bea, & Ikuta, JJ.,
dissenting from denial of rehearing en banc).
26               BIEL V. ST. JAMES SCHOOL

significant religious function and either bestows upon an
employee a religiously significant title (at least in a court’s
view), or requires the employee to have obtained religious
training.

    The harmful effects of this opinion have already
emerged. In Morrissey-Berru, another panel of this court
applied Biel’s rule to hold summarily in an unpublished
opinion that a Catholic school teacher’s “significant
religious responsibilities” were insufficient. No. 17-56624,
2019 WL 1952853, at *1. Like Biel, Morrissey-Berru
reversed a district court judge’s decision finding the
exception applied. The panel acknowledged that Morrissey-
Berru

       committed to incorporate Catholic values and
       teachings into her curriculum, as evidenced
       by several of the employment agreements she
       signed, led her students in daily prayer, was
       in charge of liturgy planning for a monthly
       Mass, and directed and produced a
       performance by her students during the
       School’s Easter celebration every year.

Id. But because Biel held that “an employee’s duties alone
are not dispositive under Hosanna-Tabor’s framework,” the
panel concluded the exception did not bar Morrissey-Berru’s
claim. Id. The case for the ministerial exception in
Morrissey-Berru is even stronger than in Biel given the
Supreme Court’s directive in Hosanna-Tabor. Absent
further review of Biel, the implications are stark: Catholic
schools in this circuit now have less control over employing
its elementary school teachers of religion than in any other
area of the country. Given our court’s broad coverage, this
is not insignificant. Now thousands of Catholic schools in
                BIEL V. ST. JAMES SCHOOL                27

the West have less religious freedom than their Lutheran
counterparts nationally. See Larson v. Valente, 456 U.S.
228, 244 (1982) (“The clearest command of the
Establishment Clause is that one religious denomination
cannot be officially preferred over another.”).

                            V

    In applying the ministerial exception, our court should
look to the function performed by employees of religious
bodies. Doing so would honor the foundational protections
of the First Amendment and ensure all religious groups are
afforded the same protection.
