                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-2280
GLORIA ALICEA-HERNANDEZ,
                                               Plaintiff-Appellant,
                                 v.

THE CATHOLIC BISHOP OF CHICAGO, a corporation sole,
                                              Defendant-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
              No. 01 C 8374—David H. Coar, Judge.
                          ____________
 ARGUED DECEMBER 12, 2002—DECIDED FEBRUARY 21, 2003
                   ____________


  Before FLAUM, Chief Judge, and MANION and ROVNER,
Circuit Judges.
   FLAUM, Chief Judge. Gloria Alicea-Hernandez, an His-
panic female, claims that her former employer, the Catho-
lic Bishop of Chicago (“the Church”), discriminated against
her based on her national origin and gender in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. The Church argued to the district court
that the religious clauses of the First Amendment pre-
clude federal subject matter jurisdiction over these
claims because both the nature of the claims and Alicea-
Hernandez’s unique responsibilities at the Church would
2                                             No. 02-2280

require the court to engage in excessive entanglement
in matters of Church policy. The district court accepted
these arguments and dismissed the suit pursuant to Fed.
R. Civ. P. 12(b)(1). Alicea-Hernandez appeals. Although
we disagree with the district court’s analysis regarding
the characterization of her claims, we affirm based on
the position Alicea-Hernandez held with the Church.


                     I. Background
  In March 2000 Alicea-Hernandez was hired by the
Archdiocese of Chicago to fill the post of Hispanic Com-
munications Manager. Her duties included: composing
media releases for the Hispanic community; composing
correspondence for the Cardinal; developing a working
relationship with the Hispanic media and parishes in
the Hispanic community to promote Church activities;
developing a working relationship with the Hispanic
community to enhance community involvement; compos-
ing articles for Church publications; and translating
Church materials into Spanish. Alicea-Hernandez con-
tinued in her employment with the Church until Decem-
ber of that year, when she resigned.
  Alicea-Hernandez claims that while working for the
Church she was discriminated against on the basis of
her gender and national origin as well as retaliated
against for filing an Equal Employment Opportunity
Commission charge. She bases these claims on allegations
of poor office conditions, the Church’s attempts to prevent
her from rectifying those conditions, exclusion from man-
agement meetings and communications, denial of re-
sources necessary for her to perform her job, and con-
structive discharge and subsequent replacement by a less
qualified male who received a higher salary and a more
significant title for the same position.
No. 02-2280                                               3

  While all this discrimination was allegedly occurring,
Alicea-Hernandez was actively taking issue with the
Church on its relations with the Hispanic community.
In various emails and memoranda Alicea-Hernandez
continually and sharply criticized the Church with re-
gard to this aspect of Church’s mission.
   During her employment and after, Alicea-Hernandez
filed several charges at the Equal Employment Opportu-
nity Commission. On July 31, 2001, the Commission is-
sued a right-to-sue letter. Alicea-Hernandez subsequently
brought suit. The district court granted the Church’s
12(b)(1) motion to dismiss for lack of subject matter juris-
diction. Alicea-Hernandez now appeals that ruling.


                     II. Discussion
  Before reaching the merits we must address the issue
of waiver. The Church argues that Alicea-Hernandez
has waived any defense to the charge of a lack of sub-
ject matter jurisdiction by not responding to its motion
to dismiss at the district court level. The Church fur-
ther argues that Alicea-Hernandez has waived any re-
sponse to the waiver charge by not addressing it in her
opening brief on appeal. Alicea-Hernandez appropriately
points out the lack of merit of the second argument. We
do not require an appellant to anticipate and pre-
emptively address all defenses that an appellee might
raise. As for whether Alicea-Hernandez has waived any
argument on subject matter jurisdiction, we are faced
with a somewhat unusual procedural background. While
it is true that Alicea-Hernandez did not respond to the
Church’s motion to dismiss and the district court granted
that motion, she subsequently filed a motion to recon-
sider to which the Church did not respond. Any waiver
arguments the Church had could have been made in
response to the motion to reconsider. Furthermore, the
4                                                   No. 02-2280

district court decided both the motion to dismiss and the
motion to reconsider without reference to waiver. In
granting the motion to dismiss the court gave full consid-
eration to the questions at issue here, and in denying the
motion to reconsider the court simply noted that it had
already considered all of Alicea-Hernandez’s arguments
the first time around. Added to this, we have the pro se
status of Alicea-Hernandez at the time the motion to
dismiss was filed1 and the confusion over the hearing
that was scheduled for the motion on April 16, 2002.2
Given this procedural journey, the district court’s review
of the issues, and the fact that we may affirm on the mer-
its, for the purposes of this opinion we assume, without
deciding, that Alicea-Hernandez has not waived her
arguments in support of subject matter jurisdiction.
  Moving on to the merits, we review de novo the dis-
trict court’s dismissal of a complaint under Rule 12(b)(1).
Rothrock v. United States, 62 F.3d 196, 198 (7th Cir.
1995). When considering a motion to dismiss for lack of
subject matter jurisdiction, a court must accept as true
all well-pleaded factual allegations and draw all rea-
sonable inferences in favor of the plaintiff. See Long
v. Shorebank Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999).
The court may look beyond the jurisdictional allegations


1
  Alicea-Hernandez originally brought this suit pro se. She gained
her present counsel after the motion to dismiss was granted
but before she filed her motion to reconsider.
2
   The district court originally set the motion for a “status” on
April 16. The court then issued, without further explanation, a
written minute order setting the motion for a hearing on April 16.
On that date the court issued its ruling on the motion. Alicea-
Hernandez claims she did not comprehend the significance of
the change from a status report to a hearing on her motion,
and she therefore did not realize that she was then required to
file a response.
No. 02-2280                                                5

of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact sub-
ject matter jurisdiction exists. Id.
  The Church argues that subject matter jurisdiction is
lacking for two reasons, both based on the First Amend-
ment. The first argument is that the nature of Alicea-
Hernandez’s claims requires the court to delve into
Church policy. If the claims did require such inquiry,
any decision by this court might contravene the First
Amendment prohibition against excessive entanglement
in matters of church policy. Serbian Eastern Orthodox
Diocese v. Milivojevich, 426 U.S. 696 (1976). But the
Church has misconstrued Alicea-Hernandez’s claims. The
Church tries to characterize the claims as based solely
on Alicea-Hernandez’s disagreements with the Church
about how it deals with the Hispanic community. The
Church points to numerous emails and memoranda in
which Alicea-Hernandez criticizes the Church’s policies
toward the Hispanic community. The Church does not
however point to anything in the complaint suggesting
that this is the basis of her claim. Alicea-Hernandez’s
complaint states that she is seeking relief based on the ill-
treatment she received as an employee based on her gen-
der and national origin. Her pro se complaint specifi-
cally states:
    I was subjected to prolonged humiliation and emo-
    tional stress of working under unequal and unfair
    conditions of employment; was excluded from manage-
    ment meetings, training and information required
    for me to perform my duties; was ordered evicted
    from the premises and replaced by a male Hispanic
    with less competence and experience in Hispanic
    communication.
Nothing in the complaint references Alicea-Hernandez’s
criticisms of the Church’s Hispanic ministry. Alicea-
6                                                  No. 02-2280

Hernandez is seeking remedy for the discrimination she
allegedly suffered at work, and the Appellee cannot re-
characterize her claim. While it does appear that Alicea-
Hernandez was an outspoken critic of the Church’s re-
lations with the Hispanic community, this does not
preclude her from bringing suit for alleged unrelated
discrimination. If this case had progressed to the summary
judgment stage or to trial, the Church might very well
have claimed as a defense that her criticism of the
Church’s relations with the Hispanic community was the
reason it treated her the way it did; but such a defense
is not determinative at the motion to dismiss stage, and
the Church never made such a claim.3
  In this context the Church also spends a great deal of
time talking about the merits of Alicea-Hernandez’s
claims. However the relevant question here is whether
the federal courts have subject matter jurisdiction over
the case. If we do not have subject matter jurisdiction,
then we are not allowed to reach the merits. Our initial
analysis is therefore limited to the narrow question of
whether Alicea-Hernandez’s discrimination claims pre-
clude the federal courts from examining this case without
violating the First Amendment. We conclude that they
do not.
  We turn next to the argument that Alicea-Hernandez’s
particular position bars the federal courts from deciding
her Title VII claims. Here the Church has the stronger
argument. As the Fifth Circuit first articulated in McClure


3
   Such a defense might have eventually established a non-
invidious explanation for the treatment. Alternatively, it might
have raised a question into which the courts have no jurisdic-
tion to inquire. That is, it may have raised a question of wheth-
er the Church can discharge someone who internally questions
and publicly criticizes the way it has chosen to advance its
message.
No. 02-2280                                                7

v. The Salvation Army, 460 F.2d 553, 560 (5th Cir. 1972),
“application of the provisions of Title VII to the employ-
ment relationship existing between . . . a church and its
minister would result in an encroachment by the state
into an area of religious freedom which it is forbidden to
enter by the principles of the free exercise clause of the
First Amendment.” This rule, often referred to as “the min-
isterial exception,” was further developed by the Fourth
Circuit in Rayburn v. General Conference of Seventh-day
Adventists, 772 F.2d 1164 (4th Cir. 1985), and adopted by
this circuit in Young v. The Northern Illinois Conference
of United Methodist Church, 21 F.3d 184 (7th Cir. 1994).
The court in Rayburn, recognizing tensions between free-
dom of religion on the one hand and the attempt to eradi-
cate discrimination on the other, concluded that in the
context of Title VII claims brought against a church by its
ministers the “balance weighs in favor of free exercise
of religion.” 772 F.2d at 1168. The court explained that
the “right to choose ministers without government restric-
tion underlies the well-being of religious community.” Id.
at 1167. While this ruling may seem in tension with Title
VII, we concur with the Fourth Circuit when it stated:
“While an unfettered church choice may create minimal
infidelity to the objectives of Title VII, it provides maxi-
mum protection of the First Amendment right to free
exercise of religious beliefs.” Id. at 1169.
  In determining whether an employee is considered a
minister for the purposes of applying this exception, we
do not look to ordination but instead to the function of
the position. Young, 21 F.3d at 186; see also EEOC v.
Roman Catholic Diocese, 213 F.3d 795, 801 (4th Cir. 2000)
(“Our inquiry thus focuses on ‘the function of the posi-
tion’ at issue and not on categorical notions of who is or
is not a ‘minister.’ ”). The question for us to answer there-
fore is whether Alicea-Hernandez’s position as Hispanic
Communications Manager can functionally be classified
8                                              No. 02-2280

as ministerial. Alicea-Hernandez suggests that we also
need to look to the nature of her claims and whether the
discrimination in question was exclusively secular. Here
she is mistaken. The “ministerial exception” applies with-
out regard to the type of claims being brought. This was
explained by the Fourth Circuit in EEOC v. Roman Cath-
olic Diocese:
    [T]he ministerial exception to Title VII is robust where
    it applies. . . . The exception precludes any inquiry
    whatsoever into the reasons behind a church’s ministe-
    rial employment decision. The church need not, for
    example, proffer any religious justification for its
    decision, for the Free Exercise Clause “protects the
    act of a decision rather than a motivation behind it.”
213 F.3d at 802 (quoting Rayburn, 772 F.2d at 1169). To
rule otherwise would enmesh the court in endless in-
quiries as to whether each discriminatory act was based
in Church doctrine or simply secular animus. The Fifth
Circuit has provided the following rationale for this rule:
    [A]n investigation and review of such matters of
    church administration and government as a minister’s
    salary, his place of assignment and his duty, which
    involve a person at the heart of any religious organ-
    ization, could only produce by its coercive effect the
    very opposite of that separation of church and State
    contemplated by the First Amendment.
McClure, 460 F.3d at 560.
  It is therefore not our role to determine whether the
Church had a secular or religious reason for the alleged
mistreatment of Alicea-Hernandez. The only question is
that of the appropriate characterization of her position.
Both sides agree that, in her capacity as Hispanic Com-
munications Manager, Alicea-Hernandez served in part
as a press secretary. Her official duties included compos-
ing media releases and correspondence as well as develop-
No. 02-2280                                                9

ing a working relationship with various constituencies
of the Hispanic community and composing articles to be
published in the Church media. Whether the ministerial
exception applies to the position of press secretary is a
novel question in this circuit. Although the parties cite
numerous cases dealing with positions such as teachers,
music directors, and youth counselors, the cases provide
limited guidance in making the determination required
here. Unlike those positions, a press secretary is respon-
sible for conveying the message of an organization to the
public as a whole. A press secretary, as is evident from
observing various public officials and entities, is often the
primary communications link to the general populace. The
role of the press secretary is critical in message dissem-
ination, and a church’s message, of course, is of singular
importance. As the D.C. Circuit stated, “[D]etermination
of whose voice speaks for the church is per se a religious
matter.” Minker v. Baltimore Annual Conference of the
United Methodist Church, 894 F.2d 1354, 1356 (D.C. Cir.
1990) (internal quotation marks omitted). Indeed, the
rationale for the ministerial exception is founded upon
the principle that “perpetuation of a church’s existence
may depend upon those whom it selects to preach its
values, teach its message, and interpret its doctrines
both to its own membership and to the world at large.”
Rayburn, 772 F.2d at 1168.
  In Rayburn the Fifth Circuit characterized the position
of Associate in Pastoral Care as ministerial because
the Associate was “a liaison between the church as an
institution and those whom it would touch with its mes-
sage.” Id. Alicea-Hernandez also served as a liaison be-
tween the Church and the community to whom it directed
its message. As Hispanic Communications Manager, Alicea-
Hernandez was integral in shaping the message that
10                                                No. 02-2280

the Church presented to the Hispanic community.4 We
therefore conclude that Alicea-Hernandez served a min-
isterial function for the Church and her Title VII claims
are therefore barred by the First Amendment.


                      III. Conclusion
  Although we cannot adopt the district court’s character-
ization of Alicea-Hernandez’s claims, we agree with the
district court that in her capacity as a Hispanic Com-
munications Manager she served a ministerial function
for the Church. We therefore AFFIRM the dismissal of her
claims for lack of subject matter jurisdiction.

A true Copy:
       Teste:

                         ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




4
  We note that the realities of the position and not the title
render her position ministerial. As the Church acknowledges, if
she had simply served in the capacity of translating the message
from English to Spanish, this would be a different case; but
Alicea-Hernandez was responsible for both crafting the message
and determining how best to reach the Hispanic community.


                    USCA-02-C-0072—2-21-03
