     06-1041-cv
     Rweyemamu v. Cote

 1                         UNITED STATES COURT OF APPEALS
 2                             FOR THE SECOND CIRCUIT
 3
 4                                August Term 2006
 5
 6   (Argued: October 26, 2006                       Decided: March 21, 2008)
 7
 8                         Docket No. 06-1041-cv
 9   -----------------------------------------------------x
10   JUSTINIAN RWEYEMAMU and BUGURUKA ORPHANS & COMMUNITY
11   ECONOMIC DEVELOPMENT, INC.,
12
13               Plaintiffs-Appellants,
14
15                            -- v. --
16
17   MICHAEL COTE, Bishop of Diocese of Norwich, and
18   NORWICH ROMAN CATHOLIC DIOCESAN CORPORATION,
19
20               Defendants-Appellees.
21
22   -----------------------------------------------------x
23
24   B e f o r e :       CARDAMONE, WALKER, and STRAUB, Circuit Judges.

25         Appeal from a judgment of the United States District Court

26   for the District of Connecticut (Warren W. Eginton, Judge)

27   concluding that the “ministerial exception” to Title VII barred

28   plaintiff’s suit and granting defendants’ motion to dismiss for

29   lack of jurisdiction.      We hold that Title VII is unconstitutional

30   as applied in this case and that the ministerial exception bars

31   plaintiff’s claim.

32         AFFIRMED.

33                                             NORMAN A. PATTIS, Bethany,
34                                             Conn., for Plaintiffs-
35                                             Appellants.
36

                                         -1-
 1                                         MEREDITH G. DIETTE, Brown
 2                                         Jacobson P.C., Norwich, Conn.,
 3                                         for Defendants-Appellees.
 4
 5                                         MICHAEL L. COSTELLO, Tobin &
 6                                         Dempf (Mark E. Chopko, Jeffrey
 7                                         Hunter Moon, United States
 8                                         Conference of Catholic
 9                                         Bishops, Wash., D.C., on the
10                                         brief), Albany, N.Y., for
11                                         Amici Curiae the Salvation
12                                         Army National Corporation, the
13                                         General Council on Finance and
14                                         Administration of the United
15                                         Methodist Church, the Church
16                                         of Jesus Christ of Latter-Day
17                                         Saints, the Lutheran Church-
18                                         Missouri Synod, the
19                                         International Church of the
20                                         Foresquare Gospel, the General
21                                         Conference of Seventh-Day
22                                         Adventists, and the United
23                                         States Conference of Catholic
24                                         Bishops.

25   JOHN M. WALKER, JR., Circuit Judge:

26        Alleging that the Roman Catholic Diocese of Norwich, through

27   its Bishop, misapplied canon law in denying him a requested

28   promotion and, ultimately, in terminating him, Father Justinian

29   Rweyemamu, an African-American Catholic priest, claims racial

30   discrimination in a Title VII suit against the Bishop and the

31   Diocese.   After the district court dismissed the suit pursuant to

32   the “ministerial exception,” Father Justinian appealed.    The

33   question we must decide is whether, under the First Amendment,

34   Title VII is unconstitutional as applied in this case.    In

35   reaching this constitutional question, we distinguish this case

36   from our decision in Hankins v. Lyght, 441 F.3d 96, 99 (2d Cir.

                                     -2-
1    2006), which held that a federal statute, the Religious Freedom

2    Restoration Act (RFRA) of 1993, 42 U.S.C. §§ 2000bb, 2000bb-1 to

3    -4, governed the merits of an age discrimination action against a

4    church.

5                                 BACKGROUND

6         As this case comes to us after the denial of a motion to

7    dismiss, we accept the facts as they are alleged in the

8    complaint.    Almonte v. City of Long Beach, 478 F.3d 100, 104 (2d

9    Cir. 2007).    Father Justinian is an ordained priest of the Roman

10   Catholic Church and the founder of Bugurka Orphans and Community

11   Economic Development, Inc. (BOCED), a nonprofit organization.

12   Prior to his dismissal, Father Justinian served for five years as

13   parochial vicar at St. Bernard’s Church in Rockville,

14   Connecticut.

15        In April 2004, Father Justinian applied to be parish

16   administrator of St. Bernard’s, but he was not selected; the

17   Diocese selected a white man instead.     Thereafter, Father

18   Justinian sought other promotions but was equally unsuccessful.

19        Concerned that the Diocese, through its Bishop, Michael

20   Cote, had discriminated against him on the basis of his race,

21   Father Justinian complained to church officials, arguing that

22   Bishop Cote had failed to follow canon law in staffing the

23   vacancies.    He also filed claims with the Equal Employment

24   Opportunities Commission (EEOC) and the Connecticut Commission on


                                      -3-
1    Human Rights and Opportunities (CHRO), the state analogue to the

2    EEOC.

3         In December 2004, the CHRO dismissed Father Justinian’s

4    complaint for lack of jurisdiction based on a constitutionally

5    grounded ministerial exception, a decision ultimately affirmed by

6    the Connecticut Court of Appeals.     See Rweyemamu v. Comm’n on

7    Human Rights & Opportunities, 911 A.2d 319 (Conn. App. Ct. 2006),

8    appeal denied, 916 A.2d 51 (Conn. 2007), cert. denied, 128 S. Ct.

9    206 (2007).   One month after the CHRO dismissed Father

10   Justinian’s complaint, Bishop Cote terminated Father Justinian’s

11   employment.   Father Justinian again appealed to higher church

12   authorities, but again without success.     The Congregatio Pro

13   Clericis in Rome found that there was “just cause” for Father

14   Justinian’s removal for several reasons, including “complaints

15   regarding his homilies, complaints regarding his interaction with

16   parish staff, . . . and the necessity of giving a unified and

17   positive witness to the people of the parish.”     Prot. No.

18   20042458 (Sept. 6, 2005); see also id. (stating that “[t]estimony

19   in this case indicates that Father [Justinian] Rweyemamu was not

20   sufficiently devoted to ministry” because his work with “BOCED

21   interfere[d] with [his] full-time parochial duties”).

22        After the adverse ruling in Rome, Father Justinian filed

23   suit in the United States District Court for the District of

24   Connecticut, claiming that the Diocese and Bishop Cote had


                                     -4-
1    violated Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and alleging

2    a variety of state-law causes of action, including intentional

3    infliction of emotional distress, tortious interference with

4    business relations, and defamation, the latter causes of action

5    arising from Bishop Cote’s public statements concerning Father

6    Justinian’s involvement with BOCED.       Upon defendants’ motion, the

7    district court (Warren W. Egington, Judge) dismissed Father

8    Justinian’s complaint for lack of jurisdiction.      The district

9    court concluded that “[t]he Free Exercise Clause of the First

10   Amendment, . . . [through] the ‘ministerial exception,’ preserves

11   a religious institution’s right to be free from governmental

12   entanglement [with the] management of its internal affairs.”

13   Rweyemamu v. Cote, No. 3:05CV00969, 2006 WL 306654, at *3 (D.

14   Conn. Feb. 8, 2006).   Father Justinian now appeals that decision.

15                                 ANALYSIS

16        We review a district court’s decision to grant a motion to

17   dismiss de novo.    Marsh v. Rosenbloom, 499 F.3d 165, 172 (2d Cir.

18   2007).   On appeal, Father Justinian argues principally that a

19   recent decision of this court, Hankins v. Lyght, 441 F.3d 96 (2d

20   Cir. 2006), “eliminated” the ministerial exception in employment

21   cases governed by federal law, such as Title VII.      Hankins,

22   Father Justinian maintains, requires us to vacate the district

23   court’s judgment.    We disagree.

24   I.   Hankins v. Lyght and the Application of RFRA


                                         -5-
1         We reach the question of the ministerial exception and

2    decide this case on constitutional grounds notwithstanding our

3    decision in Hankins, in which a panel of this court decided a

4    similar case on statutory grounds, by holding that RFRA applied

5    as a defense to the plaintiff’s discrimination claim.    Cf. Lyng

6    v. Nw. Indian Cemetary Protective Ass’n, 485 U.S. 439, 445 (1988)

7    (“A fundamental and longstanding principle of judicial restraint

8    requires that courts avoid reaching constitutional questions in

9    advance of the necessity of deciding them.”).    The statutory

10   argument is not available in this case because defendants

11   knowingly and expressly waived a RFRA defense.

12        In Hankins, a clergy member who was forced to retire at the

13   age of seventy brought suit against his church and bishop under

14   the Age Discrimination in Employment Act (ADEA) of 1967, 29

15   U.S.C. §§ 621-634.   The district court dismissed the claim under

16   Federal Rule of Civil Procedure 12(b)(6) “based on a ‘ministerial

17   exception’ to the ADEA -- a rule adopted by several circuits that

18   civil rights laws cannot govern church employment relationships

19   with ministers without violating the free exercise clause because

20   they substantially burden religious freedom.”    Hankins, 441 F.3d

21   at 100.   On appeal, however, the Hankins court’s resolution of

22   the dispute rested not on ministerial exception grounds but on

23   its determination that RFRA “govern[ed] the merits of the

24   principal issue raised by the parties.”   Id. at 99.   The court


                                     -6-
1    vacated the dismissal of the complaint and remanded for the

2    district court to decide whether applying the ADEA to the

3    church’s action would violate RFRA.   See id.

4         RFRA was enacted as a response to the Supreme Court’s

5    watershed decision in Employment Division v. Smith, 494 U.S. 872

6    (1990).   In passing RFRA, Congress sought to effect “a

7    substantive change in constitutional protections.”    City of

8    Boerne v. Flores, 521 U.S. 507, 532 (1997).     Congress intended to

9    restore the legal standard that was applied before Smith, see

10   H.R. Rep. No. 103-88, at 6-7 (1993); see also S. Rep. No. 103-

11   111, at 8 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1897-98,

12   specifically the “compelling interest test as set forth in

13   Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder,

14   406 U.S. 205 (1972),” 42 U.S.C. § 2000bb(b)(1).

15        In Smith, the Court noted that its decisions “have

16   consistently held that the right of free exercise does not

17   relieve an individual of the obligation to comply with a valid

18   and neutral law of general applicability on the ground that the

19   law proscribes (or prescribes) conduct that his religion

20   prescribes (or proscribes).”   494 U.S. at 879 (internal quotation

21   marks omitted).   In doing so, the Court distinguished Sherbert

22   and Yoder, confining the former to its facts, see id. at 884-85,

23   while holding that the latter involved more than just the right

24   to free exercise of religion, see id. at 881 (discussing “the


                                     -7-
1    Free Exercise Clause in conjunction with other constitutional

2    protections,” such as the right of parents to direct the

3    education of their children).

4         In response to Smith, RFRA provides, in pertinent part that:

 5        Government may substantially burden a person’s exercise
 6        of religion only if it demonstrates that application of
 7        the burden to the person--
 8             (1) is in furtherance of a compelling governmental
 9             interest; and
10             (2) is the least restrictive means of furthering
11             that compelling governmental interest.

12   42 U.S.C. § 2000bb-1(b); see also id. § 2000bb-1(a) (providing

13   that RFRA applies “even if the burden results from a rule of

14   general applicability, except as provided in subsection (b) of

15   this section”).   A person whose religious practices are burdened

16   in violation of RFRA “may assert that violation as a claim or

17   defense in a judicial proceeding and obtain appropriate relief.”

18   Id. § 2000bb-1(c); see Gonzales v. O Centro Espirita Beneficente

19   Uniao do Vegetal, 546 U.S. 418, 424 (2006).

20        RFRA is unusual in that it amends the entire United States

21   Code.   See 42 U.S.C. § 2000bb-3(a) (“This chapter applies to all

22   Federal law, and the implementation of that law, whether

23   statutory or otherwise . . . .”); see also Eugene Gressman, RFRA:

24   A Comedy of Necessary and Proper Errors, 21 Cardozo L. Rev. 507,

25   526 (1999) (calling RFRA “an amendment to every federal law and

26   regulation in the land”).   At bottom, the import of RFRA is that,

27   whatever other statutes may (or may not) say, “the Federal


                                     -8-
1    Government may not, as a statutory matter, substantially burden a

2    person’s exercise of religion.”    O Centro Espirita, 546 U.S. at

3    424 (emphasis added);1 cf. EEOC v. Catholic Univ. of Am., 83 F.3d

4    455, 470 (D.C. Cir. 1996)(noting that Congress has “at least the

5    facial authority to determine against whom, and under what

6    circumstances, Title VII and other federal laws will be

7    enforced”).   This aspect of RFRA was acknowledged by the Hankins

8    court when it expressly held that RFRA amended the ADEA: “It is

9    obvious to us that because Congress had the power [under the

10   Commerce Clause] to enact the ADEA, it also had the power to

11   amend that statute by passing the RFRA.”   441 F.3d at 106.

12         In so holding, the Hankins court began its analysis by

13   addressing whether the church and bishop had waived any reliance

14   upon RFRA as a defense to the plaintiff’s action.   In that case,

15   the defendants mentioned RFRA only in passing in their original

16   appellate brief, arguing “that the ADEA was an unlawful burden on

17   their religious activities and that Congress has enacted the

18   RFRA, a statute that applied to all federal laws, ‘for this very

19   reason.’”   Id. at 104.   The court asked for further briefing on

20   this “seemingly dispositive but otherwise unmentioned statute.”

21   Id.   Defendants’ supplemental brief, however, explicitly



     1
1         The Senate Report is explicit on this score; Congress passed
2    RFRA because state and local legislative bodies could not “be
3    relied upon to craft [satisfactory] exceptions from laws of
4    general application.” S. Rep. No. 103-111, at 8.

                                       -9-
1    disclaimed any intention of raising a RFRA defense and asserted

2    RFRA’s inapplicability because “the case at bar is a matter

3    relating to a private employment situation and does not involve

4    actions by the government.”    Id. (internal quotation marks

5    omitted).

6         The Hankins panel nevertheless held that the defendants had

7    not waived a RFRA defense because they “argued in the district

8    court and here -- and continue to argue -- that application of

9    the ADEA to the relationship between their church and appellant

10   substantially burdens their religion.”    Id.   In short, they had

11   argued the “substance” of a RFRA defense.    See id.   But see id.

12   at 111 (Sotomayor, J., dissenting) (noting that invocation of

13   First Amendment rights does not necessarily implicate RFRA).

14   Refuting the defendants’ argument that RFRA did not apply to

15   their case in any event because it concerned a dispute between

16   purely private parties and did not involve the government, the

17   Hankins court held that RFRA applied because the federal statute

18   at issue (the ADEA) was enforceable by a government agency (the

19   EEOC); the government therefore could have been a party to the

20   suit, and the court reasoned that the application of RFRA should

21   not vary depending on whether the party actually bringing suit is

22   a private party or the EEOC:

23        The ADEA is enforceable by the EEOC as well as private
24        plaintiffs, and the substance of the ADEA’s prohibitions
25        cannot change depending on whether it is enforced by the
26        EEOC or an aggrieved private party. An action brought by an

                                     -10-
1         agency such   as the EEOC is clearly one in which the RFRA may
2         be asserted   as a defense, and no policy of either the RFRA
3         or the ADEA   should tempt a court to render a different
4         decision on   the merits in a case such as the present one.
5
6    Id. at 103 (citation omitted).

7         Notwithstanding our own doubts about Hankins’s determination

8    that RFRA applies to actions between private parties when the

9    offending federal statute is enforceable by a government agency,2

10   there is no need for us to wrestle with RFRA’s applicability

11   because the defendants in this case, unlike in Hankins, have


     2
 1        First, we think the text of RFRA is plain, see Leocal v.
 2   Ashcroft, 543 U.S. 1, 8 (2004) (“Our analysis begins with the
 3   language of the statute.”), in that it requires the government to
 4   demonstrate that application of a burden to a person is justified
 5   by a compelling governmental interest. See 42 U.S.C. § 2000bb-
 6   1(b) (stipulating that government may only burden a person’s
 7   exercise of religion if “it demonstrates” that it is necessary
 8   (emphasis added)); Hankins, 441 F.3d at 114-15 (Sotomayor, J.,
 9   dissenting) (“The statute defines ‘demonstrate’ as ‘meet[ing] the
10   burdens of going forward with the evidence and of persuasion.’ 42
11   U.S.C. § 2000bb-2(3). Where, as here, the government is not a
12   party, it cannot ‘go[] forward’ with any evidence.”). Thus, we
13   do not understand how it can apply to a suit between private
14   parties, regardless of whether the government is capable of
15   enforcing the statute at issue. See also 42 U.S.C. § 2000bb-1(c)
16   (providing for “appropriate relief against a government”
17   (emphasis added)); Tomic v. Catholic Diocese, 442 F.3d 1036, 1042
18   (7th Cir. 2006), cert. denied, 127 S. Ct. 190 (2006); Worldwide
19   Church of God v. Phila. Church of God, Inc., 227 F.3d 1110, 1121
20   (9th Cir. 2000) (suggesting that RFRA should not apply to suits
21   between private parties); Redhead v. Conference of Seventh-Day
22   Adventists, 440 F. Supp. 2d 211, 218 (E.D.N.Y. 2006).
23        Second, there are strong policy reasons not to apply RFRA to
24   an action by a private party seeking relief against another
25   private party. RFRA does not apply to state law. Boerne, 521
26   U.S. 507. Thus, disparate treatment of federal- and state-law
27   claims is assured -- consideration of the former under RFRA and
28   the latter under NLRB v. Catholic Bishop, 440 U.S. 490 (1979);
29   cf. Hutchison v. Thomas, 789 F.2d 392 (6th Cir. 1986) (dismissing
30   common law claims under ministerial exception).

                                      -11-
1    waived a RFRA defense.

2         Under Hankins,

 3        [a] party may certainly waive or forfeit a RFRA defense by
 4        failing to argue that a law or action substantially burdens
 5        the party’s religion. . . . Where a party fails to assert a
 6        substantial burden on religious exercise before a district
 7        court, therefore, the party may not raise that issue . . .
 8        for the first time on appeal.
 9
10   441 F.3d at 104.   Here, the defendants never once mentioned RFRA

11   in their motion to dismiss before the district court, nor did

12   they ever argue that Title VII substantially burdens their

13   religion.   Their arguments to the district court were premised

14   entirely on the ministerial exception and the Free Exercise

15   Clause’s requirement that churches be free from government

16   interference in matters of church governance and administration.

17   On appeal, defendants’ argument is again rooted in the First

18   Amendment and the ministerial exception: “The First Amendment . .

19   . protects employment decisions made by religious institutions

20   regarding ministerial employees from governmental oversight,

21   including judicial review.”   Appellees’ Br. at 8; see also id. at

22   11-15.

23        Moreover, defendants’ brief states that Hankins should not

24   apply because “the Diocese has not raised a RFRA defense,” and

25   “[t]he provisions of RFRA . . . may be waived.”   Id. at 18.   It

26   goes on to affirmatively assert: “The defendants[] explicitly

27   waive a RFRA defense in this matter.”   Id. at 23 n.7 (emphasis

28   added).   While the last section of their brief contains an

                                    -12-
1    argument that Title VII imposes a substantial burden on their

2    exercise of religion, see id. at 22-25, defendants were forced to

3    make this argument because Hankins had come down after their

4    district court proceedings.   Recognizing Hankins’s holding that a

5    RFRA defense might be considered notwithstanding an express

6    waiver by the church, defendants plainly presented their RFRA-

7    based argument to cover the possibility that this panel would

8    decide to follow the Hankins panel’s analysis: “However, and in

9    light of the Hankins decision, should this Court find that the

10   defendants[] implicitly raise [a RFRA] defense, the defendants

11   include here the analysis of said defense.”   Id. at 23 n.7; see

12   also id. at 22 (presenting a RFRA analysis only “[s]hould the

13   Hankins decision control this case”).

14        Because the defendants explicitly waived any defense based

15   on a violation of RFRA after they became aware of Hankins, we

16   find that they executed an effective waiver of a known right.

17   See Curtis Publ’g Co. v. Butts, 388 U.S. 130, 143 (1967) (“[A]n

18   effective waiver must . . . be one of a ‘known right or

19   privilege.’” (citation omitted)); cf. id. at 145 (“We would not

20   hold that Curtis waived a ‘known right’ before it was aware of

21   the New York Times decision.”).   We therefore analyze the case on

22   the primary grounds argued by the parties -- the application of

23   the ministerial exception -- and need not further address

24   Hankins’s treatment of RFRA, as that statute is not at issue


                                    -13-
1    here.

2    II.   The Ministerial Exception

3          A.   The Roots of the Ministerial Exception

4          Since at least the turn of the century, courts have declined

5    to “interfere[] with ecclesiastical hierarchies, church

6    administration, and appointment of clergy.”   Minker v. Balt.

7    Annual Conference of the United Methodist Church, 894 F.2d 1354,

8    1357 (D.C. Cir. 1990) (internal quotation marks omitted);3 see

9    also Douglas Laycock, Towards a General Theory of the Religion

10   Clauses: The Case of Church Labor Relations and the Right to

11   Church Autonomy, 81 Colum. L. Rev. 1373, 1403 (1981).   Why they

12   have done so remains a matter of some debate.   See Caroline Mala

13   Corbin, Above the Law? The Constitutionality of the Ministerial

14   Exemption from Antidiscrimination Law, 75 Fordham L. Rev. 1965,

15   1977-81 (2007).   Some courts have stressed the right to church

16   autonomy secured by the Free Exercise Clause.   See, e.g.,

17   Petruska v. Gannon Univ., 462 F.3d 294, 306 (3d Cir. 2006) (“The

18   Free Exercise Clause protects not only the individual’s right to

19   believe and profess whatever religious doctrine one desires, but

20   also a religious institution’s right to decide matters of faith,



     3
1         This line of cases stretches back to Watson v. Jones, 80
2    U.S. 679, 727 (1871); see also Jones v. Wolf, 443 U.S. 595, 602
3    (1979); Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S.
4    696, 708-10 (1976); Kedroff v. St. Nicholas Cathedral, 344 U.S.
5    94, 107-10 (1952); Gonzalez v. Roman Catholic Archbishop, 280
6    U.S. 1, 16 (1929).

                                       -14-
1    doctrine, and church governance.” (internal quotation marks and

2    citation omitted)), cert. denied, 127 S. Ct. 2098 (2007); Combs

3    v. Cent. Tex. Annual Conference of the United Methodist Church,

4    173 F.3d 343, 349 (5th Cir. 1999); Catholic Univ., 83 F.3d at

5    462.

6           Others have emphasized that taking sides in a religious

7    dispute would lead an Article III court into excessive

8    entanglement in violation of the Establishment Clause.    See,

9    e.g., Tomic, 442 F.3d at 1038 (“A suit to remove a priest on the

10   ground that he is a heretic, or to reinstate a parishioner who

11   has been excommunicated, . . . has never been justiciable in the

12   federal courts.”); Gellington v. Christian Methodist Episcopal

13   Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000); Scharon v.

14   St. Luke’s Episcopal Presbyterian Hosps., 929 F.2d 360, 363 (8th

15   Cir. 1991); cf. Commack Self-Serv. Kosher Meats, Inc. v. Weiss,

16   294 F.3d 415, 427 (2d Cir. 2002).

17          Thus, the ministerial exception cannot be ascribed solely to

18   judicial self-abnegation.    Cf. Watson, 80 U.S. at 729 (“It is not

19   to be supposed that the judges of the civil courts can be as

20   competent in the ecclesiastical law and religious faith of all

21   these bodies as the ablest men in each are in reference to their

22   own.”).    It is also required by the Constitution.   This must be

23   so because the presumptively appropriate remedy in a Title VII

24   action is reinstatement, see Brooks v. Travelers Ins. Co., 297


                                     -15-
1    F.3d 167, 170 (2d Cir. 2002), but it would surely be

2    unconstitutional under the First Amendment to order the Catholic

3    Church to reinstate, for example, a priest whose employment the

4    Church had terminated on account of his excommunication based on

5    a violation of core Catholic doctrine.

6         Finally, some courts have explained that “[t]he right to

7    choose ministers without government restriction underlies the

8    well-being of religious communit[ies].”   Rayburn v. Gen.

9    Conference of Seventh-Day Adventists, 772 F.2d 1164, 1167-68 (4th

10   Cir. 1985); cf. Boy Scouts of Am. v. Dale, 530 U.S. 640, 648

11   (2000); Corp. of the Presiding Bishop of the Church of Jesus

12   Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 341-42 (1987)

13   (Brennan, J., concurring).

14        Wherever its doctrinal roots may lie, the “ministerial

15   exception” is well entrenched; it has been applied by circuit

16   courts across the country for the past thirty-five years.   See,

17   e.g., Hollins v. Methodist Healthcare, Inc., 474 F.3d 223 (6th

18   Cir.), cert. denied, 128 S. Ct. 134 (2007); Petruska, 462 F.3d

19   294; Tomic, 442 F.3d 1036; Elvig v. Calvin Presbyterian Church,

20   375 F.3d 951 (9th Cir. 2004); Bryce v. Episcopal Church in the

21   Diocese, 289 F.3d 648 (10th Cir. 2002); EEOC v. Roman Catholic

22   Diocese, 213 F.3d 795 (4th Cir. 2000); Gellington, 203 F.3d 1299;

23   Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999); Catholic Univ.,

24   83 F.3d 455; Scharon, 929 F.2d 360; Natal v. Christian &


                                   -16-
1    Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989).4

2         The Fifth Circuit was the first circuit court formally to

3    announce a “ministerial exception.”   See McClure v. Salvation

4    Army, 460 F.2d 553 (5th Cir. 1972).   In McClure, the court

5    reviewed a sex discrimination claim brought by Billie B. McClure,

6    an employee and minister of the Salvation Army.   Noting that

7    Title VII on its face appeared to apply to the Salvation Army,

8    the court “consider[ed] . . . the constitutional issue,” id. at

9    558, and all-but held Title VII unconstitutional as applied, id.

10   at 560 (“An application of the provisions of Title VII . . .

11   [would] cause the State to intrude upon matters of church

12   administration and government which have so many times before

13   been proclaimed to be matters of a singular ecclesiastical

14   concern.”).   Ultimately, the court simply stated that “Congress

15   did not intend, through the non-specific wording of the



     4
 1        The circuits have, however, taken different approaches in
 2   their application of the ministerial exception. Four circuits
 3   have treated the exception as an affirmative defense that can be
 4   raised on a motion to dismiss pursuant to Rule 12(b)(6). See,
 5   e.g., Petruska, 462 F.3d at 302; Bryce, 289 F.3d at 654; Bollard
 6   v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 951 (9th
 7   Cir. 1999); Natal, 878 F.2d at 1578. Two circuits have construed
 8   the ministerial exception as jurisdictional in nature and an
 9   appropriate ground for a motion to dismiss pursuant to Federal
10   Rule of Civil Procedure 12(b)(1). See, e.g., Hollins, 474 F.3d
11   at 225; Tomic, 442 F.3d at 1038. And two circuits have treated
12   the exception as a command to interpret Title VII not to apply to
13   claims between a church and its ministers. See, e.g.,
14   Gellington, 203 F.3d at 1302-04; McClure v. Salvation Army, 460
15   F.2d at 560 (5th Cir. 1972); cf. Hankins, 441 F.3d at 117-18
16   (Sotomayor, J., dissenting).

                                    -17-
1    applicable provisions of Title VII, to regulate the employment

2    relationship between church and minister.”   Id. at 560-61.5

3         It should be noted that the term “ministerial exception” is

4    judicial shorthand, but like any trope, while evocative, it is

5    imprecise.   The ministerial exception protects more than just

6    “ministers,” see Tomic, 442 F.3d at 1040-41 (applying exception

7    to organist/music director); Alicea-Hernandez v. Catholic Bishop,

8    320 F.3d 698, 704 (7th Cir. 2003) (press secretary); Roman

9    Catholic Diocese, 213 F.3d at 803-04 (director of music

10   ministries), and it is not confined to the Christian faith, see

11   Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299,

12   309-11 (4th Cir. 2004) (applying exception to staff of Jewish

13   nursing home).   Moreover, although its name might imply an

14   absolute exception, it is not always a complete barrier to suit;

15   for example, a case may proceed if it involves a limited inquiry

16   that, “combined with the ability of the district court to control

17   discovery, can prevent a wide-ranging intrusion into sensitive


     5
 1        Subsequent courts have vacillated, with some abjuring
 2   constitutional decision-making and relying solely upon the canon
 3   of constitutional avoidance, see, e.g., Hankins, 441 F.3d at 118
 4   n.13 (Sotomayor, J., dissenting) (“I would apply Catholic
 5   Bishop’s principles of statutory construction so as to avoid
 6   making definitive pronouncements on the constitutional
 7   question.”), some deciding that particular anti-discrimination
 8   laws are unconstitutional as applied under certain circumstances,
 9   see, e.g., Gellington, 203 F.3d at 1304 (“[T]he Free Exercise and
10   Establishment Clauses of the First Amendment prohibit a church
11   from being sued under Title VII by its clergy.”); Combs, 173 F.3d
12   at 351, and some doing one while making a pretense of the other,
13   see, e.g., Scharon, 929 F.2d at 361-63.

                                    -18-
1    religious matters.”    Bollard v. Cal. Province of the Soc’y of

2    Jesus, 196 F.3d 940, 950 (9th Cir. 1999).

3         B.   The Ministerial Exception in the Second Circuit

4         This court has had no prior occasion to confirm the

5    existence of the ministerial exception, and rarely an opportunity

6    to discuss its scope.    In Catholic High School Ass’n of the

7    Archdiocese v. Culvert, 753 F.2d 1161 (2d Cir. 1985), we

8    considered the legitimacy of an inquiry by the New York State

9    Labor Relations Board into the allegedly anti-union practices of

10   certain parochial schools with respect to their lay employees.

11   We permitted the State Board to proceed after concluding that all

12   it could do was “order an employer who refuses to bargain in good

13   faith to return and bargain on the mandatory bargaining subjects,

14   all of which are secular.”    Id. at 1167.   We explained, however,

15   that “the First Amendment prohibits . . . [the courts] from

16   inquiring into an asserted religious motive to determine whether

17   it is pretextual.”    Id. at 1168.   And we expressly noted that the

18   “Board . . . may order reinstatement of a lay teacher at a

19   parochial school only if he or she would not have been fired

20   otherwise for asserted religious reasons.”    Id. at 1169.

21        In DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir.

22   1993), a Mormon high school asked us to pretermit the age

23   discrimination claim of a lay teacher.    We first confirmed that

24   the ADEA was not broadly inapplicable to parochial schools.     See


                                     -19-
1    id. at 169-70.6   We next explained that while “[t]here may be

2    cases involving lay employees in which the relationship between

3    employee and employer is so pervasively religious that it is

4    impossible to engage in an age-discrimination inquiry without

5    serious risk of offending the Establishment Clause[,] . . .

6    [t]his [wa]s not such a case.”    Id. at 172.   We reiterated our

7    conclusion in Catholic High School that courts may pretermit any

8    “plausibility inquiry [because such an inquiry] could give rise

9    to constitutional problems where, as in the case at bar, a

10   defendant proffers a religious purpose for a challenged

11   employment action.”   Id. at 171.

12        Thus, our limited precedent to date supports the following

13   propositions: (1) Title VII and the ADEA are not inapplicable to

14   religious organizations as a general matter; (2) we will permit

15   lay employees –- but perhaps not religious employees –- to bring

16   discrimination suits against their religious employers; and (3)

17   even when we permit suits by lay employees, we will not subject

18   to examination the genuineness of a proffered religious reason

19   for an employment action.

20        Presented with this occasion to formally adopt the



     6
1         We also noted that “the legislative history of Title VII
2    makes clear that Congress formulated the limited exemptions for
3    religious institutions to discrimination based on religion with
4    the understanding that provisions relating to non-religious
5    discrimination would apply to such institutions.” DeMarco, 4
6    F.3d at 173.

                                      -20-
1    ministerial exception, we affirm the vitality of that doctrine in

2    the Second Circuit.    In our view, the ministerial exception is

3    constitutionally required by various doctrinal underpinnings of

4    the First Amendment.

5         The Free Exercise Clause protects a “church’s right to

6    decide matters of governance and internal organization.”

7    Petruska, 462 F.3d at 307.    Some employees have only religious

8    duties.   Others may be lay employees of a religious organization.

9    See, e.g., Catholic High School, 753 F.2d 1161 (discussing lay

10   teachers).   Still others may have both secular and religious

11   duties.   Cf. Hollins, 474 F.3d at 225-26.   The more “pervasively

12   religious” the relationship between an employee and his employer,

13   the more salient the free exercise concern becomes.    Cf. Bruce N.

14   Bagni, Discrimination in the Name of the Lord: A Critical

15   Evaluation of Discrimination by Religious Organizations, 79

16   Colum. L. Rev. 1514, 1539 (1979) (noting that “[t]he relationship

17   between a church and its clergy and modes of worship and ritual

18   surely fall within the spiritual epicenter,” which “represents

19   the purely spiritual life of a church”).

20        Circuit courts applying the ministerial exception have

21   consistently struggled to decide whether or not a particular

22   employee is functionally a “minister.”    See Petruska, 462 F.3d at

23   304 n.6 (collecting cases).    While we agree that courts should

24   consider the “function” of an employee, rather than his title or


                                     -21-
1    the fact of his ordination, see Elvig, 375 F.3d at 958 & n.3

2    (citing cases), we still find this approach too rigid as it fails

3    to consider the nature of the dispute.   As we noted in DeMarco, a

4    lay employee’s relationship to his employer may be “so

5    pervasively religious” that judicial interference in the form of

6    a discrimination inquiry could run afoul of the Constitution.

7    See 4 F.3d at 172.   At the same time, however high in the church

8    hierarchy he may be, a plaintiff alleging particular wrongs by

9    the church that are wholly non-religious in character is surely

10   not forbidden his day in court.   The minister struck on the head

11   by a falling gargoyle as he is about to enter the church may have

12   an actionable claim.   Cf. Petruska, 462 F.3d at 310 (concluding

13   that plaintiff’s breach of contract claim, which did not infringe

14   on employer’s freedom to select ministers, survived motion to

15   dismiss based on ministerial exception); Minker, 894 F.2d at

16   1359-61; Rayburn, 772 F.2d at 1171 (“Like any other person or

17   organization, [churches] may be held liable for their torts and

18   upon their valid contracts.   Their employment decisions may be

19   subject to Title VII scrutiny, where the decision does not

20   involve the church’s spiritual functions.”).

21        And it is to the relevance of the type of claim asserted

22   that we now briefly turn.   The Establishment Clause forbids

23   “excessive government entanglement with religion.”   Lemon v.

24   Kurtzman, 403 U.S. 602, 613 (1971) (internal quotation marks and


                                    -22-
1    citation omitted).    “Entanglement may be substantive -- where the

2    government is placed in the position of deciding between

3    competing religious views -- or procedural -- where the state and

4    church are pitted against one another in a protracted legal

5    battle.”    Petruska, 462 F.3d at 311.    The salience of this

6    concern depends upon the claim asserted by the plaintiff.

7    Cf. DeMarco, 4 F.3d at 169-70 (distinguishing between the

8    “ongoing government supervision of all aspects of employment”

9    required by the NLRA and the “limited inquiry” entailed by the

10   ADEA); Bollard, 196 F.3d at 950; Geary v. Visitation of Blessed

11   Virgin Mary Parish Sch., 7 F.3d 324, 328 (3d Cir. 1993).     For

12   instance, as the First Circuit has noted, whatever their

13   “emblemata,” some claims may inexorably entangle us in doctrinal

14   disputes.    Natal, 878 F.2d at 1577.    By contrast, if a plaintiff

15   alleges, for instance, that his religious employer has deceived

16   him within the meaning of a state’s common law of fraud, his case

17   is less likely to run afoul of the Establishment Clause.

18        Turning now to the particulars of Father Justinian’s

19   complaint, we consider the constitutionality of Title VII as

20   applied to this case.

21        C.     The Ministerial Exception and Father Justinian’s Suit

22        We need not attempt to delineate the boundaries of the

23   ministerial exception here, as we find that Father Justinian’s

24   Title VII claim easily falls within them.     Father Justinian is an


                                     -23-
1    ordained priest of the Roman Catholic Church; his duties are

2    determined by Catholic doctrine and they are drawn into question

3    in this case.    Furthermore, in order to prevail on his Title VII

4    claim, he must argue that the decision of the Congregatio Pro

5    Clericis was not only erroneous, but also pretextual.      Such an

6    argument cannot be heard by us without impermissible entanglement

7    with religious doctrine.    Because Title VII is unconstitutional

8    as applied in this case, Father Justinian’s federal claim fails

9    at its inception.    Cf. Petruska, 462 F.3d at 305 n.8 (citing

10   Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320

11   (2006)).

12        With respect to the federal discrimination claim in

13   particular, this case is on all fours with Minker v. Baltimore

14   Annual Conference of the United Methodist Church.      In that case,

15   a sixty-three-year-old Methodist minister alleged that he had

16   been denied a pastorship on account of his age and in violation

17   of the ADEA.    See Minker, 894 F.2d at 1355.    The D.C. Circuit

18   noted that “[t]he 1984-88 version of the Book of Discipline

19   provide[s] that appointments must take into account . . . ‘the

20   gifts and graces of a particular pastor.’”      Id. at 1356.   The

21   court thereupon dismissed the suit, persuasively explaining that

22   it could not “imagine an area of inquiry less suited to a

23   temporal court for decision [than] evaluation of the ‘gifts and

24   graces’ of a minister.”    Id. at 1357.   So, too, how are we, as


                                     -24-
1    Article III judges, to gainsay the Congregatio Pro Clericis’

2    conclusion that Father Justinian is insufficiently devoted to

3    ministry?   How are we to assess the quality of his homilies?

4         Natal v. Christian & Missionary Alliance is equally

5    instructive on this point.   There, a clergyman and his wife filed

6    suit against the Christian and Missionary Alliance (CMA) alleging

7    that the CMA had discharged him without cause.    See Natal, 878

8    F.2d at 1576.   The First Circuit affirmed the dismissal of the

9    suit, holding that “the inquiry which Natal would have us

10   undertake into the circumstances of his discharge [would]

11   plunge[] an inquisitor into a maelstrom of Church policy,

12   administration, and governance.”   Id. at 1578.

13        Finally, Simpson v. Wells Lamont Corp., 494 F.2d 490 (5th

14   Cir. 1974), also sheds light upon the justiciability of Father

15   Justinian’s Title VII claim.   In that case, a reverend and his

16   wife sued the North Mississippi Conference of the United

17   Methodist Church alleging that the latter had dismissed him

18   because of his views on race relations and because his wife

19   happened to be an African-American.   The court dismissed the

20   suit, concluding that a church’s selection of its pastor could

21   not be reviewed by a civil court and that “appellate procedure

22   within the church hierarchy was [plaintiff’s] avenue for review.”

23   Id. at 494.

24        We therefore conclude, based on the facts of this case -- in


                                    -25-
1    particular, the nature of Father Justinian’s duties and the basis

2    for his dismissal -- that the ministerial exception bars Father

3    Justinian’s Title VII claim.   In addition to his federal

4    employment discrimination claim, Father Justinian also alleges

5    state-law claims of intentional infliction of emotional distress,

6    tortious interference with business relations, and defamation.

7    Because the district court properly dismissed Father Justinian’s

8    federal discrimination claim pursuant to the ministerial

9    exception, it had no reason to exercise supplemental jurisdiction

10   over his state-law claims.   Accordingly, we affirm the district

11   court’s dismissal of Father Justinian’s state-law claims.

12                                CONCLUSION

13        The judgment of the district court is hereby AFFIRMED.

14




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