JESUS ALCAZAR, Plaintiff, and CESAR ROSAS, Plaintiff-Appellant, v. THE CORPORATION OF THE CATHOLIC ARCHBISHOP OF SEATTLE; HORATIO YANEZ, Defendants-Appellees.
No. 09-35003
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
March 16, 2010
2010 WL 891313 | 598 F.3d 668
Before: Robert R. Beezer, Ronald M. Gould, and Richard C. Tallman, Circuit Judges. Opinion by Judge Beezer
D.C. No. 2:06-cv-00281-RSM. FOR PUBLICATION. Argued and Submitted December 9, 2009—Seattle, Washington.
Lindsay Halm, Schroeter, Goldmark & Bender, Seattle, Washington, for the plaintiff-appellant.
Karen A. Kalzer, Patterson Buchanan Fobes Leitch & Kalzer, Inc., Seattle, Washington; M. Colleen Kinerk, Cable Langenbach Kinerk & Bauer, LLP, Seattle, Washington, for the defendants-apрellees.
OPINION
BEEZER, Circuit Judge:
“The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947). The interplay between the
I
Cesar Rosas and Jesus Alсazar were Catholic seminarians in Mexico. The Catholic Church required them to participate in a ministry training program at St. Mary Catholic Church in Marysville, Washington as their next step in becoming ordained priests. At St. Mary, Rosas and Alcazar allegedly suffered retaliation for claiming that Father Yanez sexually harassed Alcazar, and they eventually sued Father Yanez and the Corporation of the Catholic Archbishop of Seattle (“defendants”) under Title VII.2 In addition, Rosas and Alca-
Because the judgment was on the pleadings, the pleadings alone must be sufficient to support the district court‘s judgment. Wе thus base our decision on the very few allegations in Rosas‘s complaint. Rosas alleges as follows:
1.3 . . . The Corporation of the Catholic Archbishop of Seattle hosted [Rosas] as [a] participant[] in a training/pastoral ministry program for the priesthood.
. . . .
2.2 Cesar Rosas entered the seminary to become a Catholic priest in 1995 in Mexico.
2.3 As part of [his] preparation for ordination into the priesthood, the Catholic Church required [Rosas] to engage in a ministerial placement outside [his] diocese, under the supervision of a pastor of the parish into which [he was] placed. The Archdiocese of Seattle sends seminarians to Mexico and has Mexican seminarians come to its parishes. [Rosas was] placed in St. Mary Parish in Marysville, Washington under the supervision of defendant Fr. Horatio Yanez.
. . . .
2.10 . . . [Rosаs] was hired to do maintenance of the church and also assisted with Mass. He . . . worked many overtime hours he was not compensated for.
II
We review de novo a district court‘s order granting judgment on the pleadings. Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 955 (9th Cir. 2004). We must accept as true the allegations in Rosas‘s complaint and treat as false the allegations in the answer that contradict the complaint. Id.
III
[1] The Religion Clauses of the
Here, as in the Title VII context, we first examine whether the Minimum Wage Act implicates the Free Exercise Clause. We must balance:
(1) the magnitude of the statute‘s impact upon the exercise of the religious belief, (2) the existence of a compelling state interest justifying the burden imposed upon the exercise of the religious belief, and (3) the extent to which recognition of an exemption from the stаtute would impede the objectives sought to be advanced by the state.
Werft v. Desert Sw. Annual Conference of the United Methodist Church, 377 F.3d 1099, 1102 (9th Cir. 2004) (per curiam) (quoting Bollard, 196 F.3d at 946). The goals of Washington‘s Minimum Wage Act represent a compelling state interest.
[3] As in the Title VII context, we next examine whether the Washington Minimum Wage Act implicates the Establishment Clause. We must determine: (1) whether the statute has a secular legislative purpose, (2) whether “its principal or primary effect advances [ ]or inhibits religion,” and (3) whether it “foster[s] an excessive government entanglement with religion.” Bollard, 196 F.3d at 948 (quoting Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971)). The Minimum Wage Act has a secular purpose—to ensure minimum pay for all Washington workers—and it neither advances nor inhibits religion. It is the third factor, entanglement, that is at issue here. Cf., e.g., Elvig, 375 F.3d at 956 (noting this in the Title VII context).
[4] Entanglement has substantive and procedural components. Bollard, 196 F.3d at 948. “On a substantive level, applying [a] statute to the clergy-church employment relationship creates a constitutionally impermissible entanglement with religion if the church‘s freedom to choose its ministers is at stake.” Id. at 948-49. As for the procedural dimension, the very process of civil court inquiry into the clergy-church relationship can be sufficient entanglement. Id. at 949. “It is not only the conclusions that may be reached by [the court] which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.” NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 502 (1979).
[5] The Religion Clauses thus compel a ministerial exception from neutral statutory regimes that interfere with the
IV
[6] Because the ministerial exception analysis applies to the Washington Minimum Wage Act, Rosas‘s claim is barred if he is a “minister” and application of the statute would interfere with a protected employment decision.5 Rosas argues that the district court erred in dismissing his claim for three reasons. First, he argues the ministerial exception has an additional “actual burden” requirement. Second, he contends that requiring the Catholic Church tо pay overtime wages does not implicate a protected employment decision. And third, he maintains that the district court could not have determined that he was a “minister” on the pleadings. We address and reject each of these arguments in turn.
A
[7] Rosas first argues that the district court should not have dismissed the case absent a determination that requiring the
The Supreme Court has not explicitly addressed the ministerial exception, but the Court‘s pre-Alamo decisions recognize that the
Rosas‘s second argument is no more availing than the first. He argues that the decision whether to pay him overtime wages “is not the sort of religious practice the First Amendment shields from seculаr examination.” He reads Werft and Bollard to apply the ministerial exception only when a statute “would interfere with a church‘s freedom to either (a) ‘choose its ministers,’ or (b) ‘practice its beliefs.’” See Appellant‘s Br. at 15 (citing Bollard, 196 F.3d at 944). We reject this argument for two separate reasons.
[8] First, this case does involve the Catholic Church‘s selection of its ministers. Rosas admits that “[a]s part of [his] preparation for ordination into the priesthood, the Catholic Church required [him] to engage in a ministerial placement.” (emphasis added). This case thus quintessentially follows Bollard‘s explanation that the “Free Exercise Clause rationale for protecting a church‘s personnel decisions concerning its ministers is the necessity of allowing the church to choose its representatives using whatever criteria it deems relevant.” 196 F.3d at 947.
[9] Second, Rosas interprets our case law too narrowly. Bollard refers not only to the selection of ministers but more broadly to “employment decisions regarding . . . ministers.” Id. Bollard acknowledges:
Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection[, including] the determination of a minister‘s salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church.
Id. (emphases added) (quoting McClure v. Salvation Army, 460 F.2d 553, 559 (5th Cir. 1972)). The ministerial exception
C
[10] Finally, Rosas argues that even if a minister‘s salary is insulated from judicial scrutiny, the district court could not have determined on the pleadings that Rosas was a minister. He urges us to adopt a test set forth by the Fourth and D.C. Circuits that looks at the “primary duties” of employees to determine whether they are “ministers.” See EEOC v. Catholic Univ. of Am., 83 F.3d 455, 463 (D.C. Cir. 1996); Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985). He argues that under thаt test, because his complaint states that he “was hired to do maintenance of the church and also assisted with Mass,” the district court could not have found on the pleadings that Rosas‘s primary functions at St. Mary were religious. Rosas more simply states: “On appeal, this Court need only consider whether, on the basis of the allegation above, Mr. Rosas mostly cleaned sinks or mostly counseled parishioners.”
We havе never clearly announced a test to determine whether an employee is a “minister” under the ministerial exception. In Bollard, Elvig, and Werft, we assumed the plaintiffs were ministers. In EEOC v. Pacific Press Publishing Ass‘n, 676 F.2d 1272, 1278 (9th Cir. 1982), abrogated on other grounds as recognized by Am. Friends Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir. 1991), and EEOC v. Fremont Christian School, 781 F.2d 1362, 1369-70 (9th Cir. 1986), we looked at the functions of the employees to determine that they were not ministers. But in Pacific Press, we noted that “[t]he facts of the present case do not require this court to examine in depth the scope of the [ministerial] exemption,” 676 F.2d at 1278, and in Fremont,
It is true that we use a functional approach to the ministerial exception, which examines the “function of the position” rather than relying solely on ordination or “categorical notions of who is or is not a ‘minister.’” Elvig, 375 F.3d at 958 n.3 (quoting EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795, 801 (4th Cir. 2000)). Under the functional approach, a lay employee can act as the functional equivalent of a minister. See, e.g., Roman Catholic Diocese of Raleigh, 213 F.3d at 805 (cоncluding church‘s director of music ministry and part-time teacher at church‘s school fell under ministerial exception). And alternatively, “[w]hile religious organizations may designate persons as ministers for their religious purposes free from any governmental interference, bestowal of such a designation does not control their extra-religious legal status.” EEOC v. Sw. Baptist Theological Seminary, 651 F.2d 277, 283 (5th Cir. 1981); see Fremont, 781 F.2d at 1369-70 (determining that teachers at a parochial school wеre not functionally ministers despite the defendant‘s contentions).
Although we reaffirm the importance of the functional approach, we find the “primary duties” test problematic. If taken literally, the primary duties test would require the district court to examine the number of hours Rosas spent on maintenance and the number of hours he performed religious duties. This could create the very government entanglement into the church-minister relationship that the ministerial exception seeks to prevent. See Bollard, 196 F.3d at 949; see also Catholic Bishop of Chi., 440 U.S. at 502.
[11] Moreover, the underlying premise of the primary duties test—that a minister must “primarily” perform religious duties—is suspect. A religious organization can constitutionally require its ministers or ministers-in-training to spend a year volunteering in urban areas in the United States.
[12] Instead, we adopt a test similar to the Fifth Circuit‘s and hold that if a person (1) is employed by a religious institution, (2) was chosen for the position based “largely on religious criteria,” and (3) performs some religious duties and responsibilities, that person is a “minister” for purposes of the ministerial exception. See Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999).7
This test preserves the functional approach and recognizes that “ministers” generally perform religious ceremonies and duties. But it rejects the arbitrary 51% requirement implicit in the “primary duties” test, acknowledging that secular duties are often important to a ministry. Additionally, avoiding the “primary” requirement enables a district court to determine who is a “minister” earlier in the proceedings and minimizes
[13] The district court correctly dismissed this case on the pleadings under this test.
AFFIRMED.