Lead Opinion
Judge SOTOMAYOR dissents in a separate opinion.
John Paul Hankins appeals from the dismissal by Judge Hurley of his age discrimination action. Hankins was a clergy member ordained by appellee New York Annual Conference of the United Methodist Church (“NYAC”). He was forced into retirement when he attained the age of 70. Appellee Ernest S. Lyght is the Bishop of the NYAC and has the power to appoint clergy to NYAC churches.
Hankins claims that the NYAC’s mandatory retirement policy violates the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. We hold that the Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb et seq.,.is constitutional as applied to federal law; it therefore amended the ADEA and governs the merits of the principal issue raised by the parties. We vacate the dismissal of Hankins’ complaint and remand for a determination of whether application of the ADEA to Hankins’ relationship with the NYAC and Lyght violates the RFRA.
BACKGROUND
We assume the existence of the facts as alleged in the complaint. Hankins was ordained by the NYAC and served as a clergy member from 1962 to July 1, 2003. He turned 70 on November 5, 2002, and was forced into retirement on July 1, 2003, as prescribed by paragraph 356 of the Methodist Book of Discipline.
According to a statement by the Methodist Church’s Council of Bishops, the Book of Discipline is neither “sacrosanct” nor “infallible, but ... is the most current statement of how United Methodists agree to live together” as “an inclusive society without regard to ethnic origin, economic condition, gender, age, or the disabilities of its constituents.” The complaint alleges that the Book of Discipline contains “subject matters that are sectarian and ecclesiastical in nature[,] being related to the nature of the Deity and the Trinity, the scriptures, the tenets of the United Methodist Church, the theological grounding of biblical faith, the teachings of John Wesley and/or other religious principles or values (... ‘religious considerations’),” as well as “subject matters that are secular, temporal and/or civil in nature[,] not being determined, controlled or influenced by any religious considerations.” The complaint further claims that paragraph 356, under which Hankins was mandatorily retired, “is a secular, temporal, and/or civil subject matter, not being determined, controlled
Bishop Lyght told Hankins and other members of the Church that he had the authority to reappoint Hankins as pastor, despite the fact that Hankins is over 70 years old. However, Bishop Lyght also stated that it is his “personal policy (as distinguished from the policy set forth in the Book of Discipline) never to reappoint members of the clergy who have attained age seventy to the church out of which they were retired.”
Appellant brought an age discrimination charge to the Equal Employment Opportunity Commission (“EEOC”) on March 19, 2003. The EEOC issued a Notice of Right to Sue on April 11, 2003. Appellant also filed a Verified Complaint with the New York Division of Human Rights on June 11, 2003; that Complaint was dismissed for administrative convenience on July 1, 2003. Appellant filed the instant suit on July 3, 2003.
Appellant’s complaint claimed that the mandatory retirement policy violated the ADEA, the New York Human Rights Law, and the NYAC’s covenant with him (Counts I, II, and IV); and that Bishop Lyght’s personal policy against reappointing retired clergy violated the ADEA and Human Rights Law (Count III).
Appellees moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted, under Rules 12(b)(1) and (6) respectively. The district court, ruling orally, declined to decide the 12(b)(1) motion, which was apparently based on deficiencies in the EEOC’s review of appellant’s charge. Instead, the court granted the 12(b)(6) motion based on a “ministerial exception” to the ADEA — a rule adopted by several circuits that civil rights laws cannot govern church employment relationships with ministers without violating the free exercise clause because they substantially burden religious freedom. See, e.g., McClure v. Salvation Army,
DISCUSSION
Appellant argues that the ministerial exception should not insulate a church’s nonreligious regulations that discriminate against ministers on the basis of age. Ap-pellees assert that this action is barred by EEOC errors. Alternatively, they continue to rely upon “the ministerial exception,” the Free Exercise clause, and the Establishment Clause, claiming that applying the ADEA to the church-minister relationship would substantially burden religion. In that regard, appellees note that “for this very reason” Congress passed the RFRA. We address the alleged EEOC errors before turning to the main issue: whether the RFRA amended the ADEA.
a) Completion of Administrative Proceedings
Appellees argue that the district court lacked jurisdiction because the EEOC issued appellant’s Notice of Right to Sue fewer than sixty days after his charge was filed.
Appellees rely for their jurisdictional contention on two Title YII cases: Martini v. Fed. Nat’l Mortgage Ass’n,
The key fact in the present matter is that the language of 29 U.S.C. § 626, which authorizes suits under the ADEA, differs significantly from that of Section 2000e-5(f)(l). Section 626 provides that “[n]o civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC].” Id. § 626(d). Appellant complied with this
b) The Religious Freedom Restoration Act
In our view, the dispositive issue in this matter concerns the application of the RFRA. The statute’s substantive provisions state:
(a) In general. Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) Exception. Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000bb-l.
The test set out in Subsection (b)(1) and (2) “applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” Id. § 2000bb-3(a). The RFRA’s remedial provision states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” Id. § 2000bb-l(c). “[G]overnment” is in turn defined to include any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” Id. § 2000bb-2(l).
The present action is a suit against a church and an official of that church. The suit claims that the defendants violated a federal statute, the ADEA, and seeks judicial remedies; appellees claim that application of the statute would substantially burden the exercise of their religion. If the RFRA’s test for evaluating burdens on religious activity- — Subsections (b)(1) and (2) — is not met, appellees can arguably assert a violation of the RFRA as a complete defense.
The district court dismissed the case based on a “ministerial exception” that some courts had read into various anti-discrimination laws- — -an unresolved issue in this circuit— including the ADEA. Whatever the merits of that exception as statutory interpretation or policy, it has no basis in statutory text, whereas the RFRA, if applicable, is explicit legislation that could not be more on point. Given the absence of other relevant statutory language, the RFRA must be deemed the full expression of Congress’s intent with regard to the religion-related issues before us and displace earlier judge-made doctrines that might have been used to ameliorate the ADEA’s impact on religious organizations and activities. City of Milwaukee v. Illinois,
There is little caselaw addressing the issue whether the RFRA applies to an action by a private party seeking relief under a federal statute against another private party who claims that the federal statute substantially burdens his or her exercise of religion.
We need not, however, decide whether the RFRA applies to a federal law enforceable only in private actions between private parties. The ADEA is enforceable by the EEOC as well as private plaintiffs, and the substance of the ADEA’s prohibitions cannot change depending on whether it is enforced by the EEOC or an aggrieved private party. See United States v. Brown,
1. Waiver
First, however, we must address whether appellees have waived or forfeited reliance upon the RFRA. In their original brief, as noted, appellees argued that the ADEA was an unlawful burden on their religious activities and that Congress has enacted the RFRA, a statute that applied to all federal laws, “for this very reason.” Appellant’s Brief at 28. Believing that this reference to a seemingly dispositive but otherwise unmentioned statute needed some elaboration and unconvinced that appellant’s claim that the Supreme Court had held the RFRA unconstitutional in all circumstances was correct, we asked for further briefing.
Somewhat to our surprise, appellees’ post-argument letter-brief states that, although all pertinent portions of the RFRA are constitutional, the statute is inapplicable because “the case at bar is a matter relating to a private employment situation and does not involve actions by the government.” Nevertheless, appellees continue to rely upon the “ministerial exception” and the Free Exercise and Establishment Clauses.
In our view, as discussed above, the RFRA’s provisions are directly on point, and allow parties who, like appellees, claim that a federal statute, like the ADEA, substantially burdens the exercise of their religion to assert the RFRA as a defense to any action asserting a claim based on the ADEA. The issue then is whether their post-argument letter-brief constitutes a waiver or forfeiture of that defense.
A party may certainly waive or forfeit a RFRA defense by failing to argue that a law or action substantially burdens the party’s religion. For example, in United States v. Amer, appellant had forfeited the defense that his child kidnaping conviction violated the RFRA, because “[a]t no point during the pretrial, trial, or sentencing proceedings did [appellant] argue that his act of removing and retaining the children was religiously mandated or inspired.”
However, appellees argued in the district court and here — and continue to argue — that application of the ADEA to the relationship between their church and appellant substantially burdens their religion. They continue to assert the “ministerial exception,” which in their view tracks the Free Exercise clause of the Constitution and the Establishment Clause as well. Appellees’ Brief at 4-15; see Elvig v. Calvin Presbyterian Church,
Appellees’ position that the RFRA does not apply to suits between private parties is not determinative of our analysis, given that they have vigorously pursued and preserved the substance of the issue. We are required to interpret federal statutes as they are written — in this case the ADEA as amended by the RFRA — and we are not bound by parties’ stipulations of law. Becker v. Poling Transp. Corp.,
2. Constitutionality
In addressing the constitutional issues raised by appellant with regard to the RFRA, we first describe the statutory background.
The RFRA was passed in response to Employment Div. v. Smith,
Congress enacted the RFRA pursuant to two sources of authority, Section 5 of the Fourteenth Amendment and the Necessary and Proper Clause of the Constitution. See H.R.Rep. No. 103-88, at 17 (1993) (“Finally, the Committee believes that Congress has the constitutional authority to enact [the RFRA]. Pursuant to Section 5 of the Fourteenth Amendment and the Necessary and Proper Clause of the Constitution, the legislative branch has been given the authority to provide statutory protection for a constitutional value .... ”). The Supreme Court held that the RFRA could not be enacted under Section 5 of the Fourteenth Amendment, which empowers Congress to enforce the Amendment’s other provisions against the states. City of Boerne v. Flores,
However, the RFRA applies by its terms not only to the states but also to “all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993.” 42 U.S.C. § 2000bb-3(a); see also id. § 2000bb-2(l) (“ ‘[Government’ includes a branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.”). Boeme could not have addressed whether the RFRA was validly enacted under the Necessary and Proper Clause because the only issue before the Court was the denial of a building permit to a church by local zoning authorities.
We join the other circuits in holding that the RFRA is constitutional as applied to federal law under the Necessary and Proper Clause of the Constitution. As presented in this case, the issue is simply whether Congress had the authority to amend the ADEA to include the RFRA standard. See In re Young,
Congress enacted the ADEA pursuant to its Commerce Clause powers under Article I. Kimel v. Fla. Bd. of Regents,
It is obvious to us that because Congress had the power to enact the ADEA, it also had the power to amend that statute by passing the RFRA. The RFRA was authorized by the Necessary and Proper Clause because its purpose — to protect First Amendment rights as interpreted by the Congress, see S.Rep. No. 103-111, at 14 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1903 — was permissible. “When Congress acts withirUits sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution.” Boerne,
The RFRA was also proper as applied to the ADEA in particular because, as noted, Congress had authority to enact that statute under the Commerce Clause. See INS v. Chadha,
In his post-argument letter-brief, appellant argues that application of the RFRA to federal law violates separation of powers principles and the Establishment Clause of the Constitution.
Appellant’s separation of powers challenge is that because the RFRA mandates evaluation of laws and actions that burden religion by a standard different from that prescribed by the Supreme Court, it is a Congressional usurpation of judicial power. However, we agree with the Eighth Circuit that “[t]he key to the separation of powers issue in this case is ... not whether Congress disagreed with the Supreme Court’s constitutional analysis, but whether Congress acted beyond the scope of its constitutional authority in applying RFRA to federal law.” In re Young,
With respect to appellant’s Establishment Clause argument, the Clause provides that “Congress shall make no law respecting an establishment of religion.” U.S. Const, amend. I. The Supreme
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.
Lemon v. Kurtzman,
Given these holdings, appellant faces an unwinnable battle in claiming that the RFRA — a limited exemption for religious organizations from compliance with neutral laws — violates the Establishment Clause. The RFRA had a secular legislative purpose within the meaning of Lemon — namely, to protect individual First Amendment rights as interpreted by the Congress. As noted, this purpose was not only permissible but was also required by Congress’s duty to interpret the Constitution. Boerne,
The RFRA also satisfies the other two prongs of the Lemon test. Its principal effect neither advances nor inhibits religion within the meaning of Lemon. “For a law to have forbidden ‘effects’ under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence,” rather than simply by granting an exemption to religious organizations. Amos,
Having found the portions of the RFRA applicable to the federal government and federal law constitutional, we have little difficulty finding those portions severable from the RFRA’s unconstitutional sections. A court must sever the invalid parts of a statute from the valid parts “unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not.” Chadha,
CONCLUSION
The RFRA is an amendment to the ADEA and, as such, is constitutional. The parties have not briefed the issue of how it impacts the merits of this case. The district court did not apply the RFRA, relying instead on the “ministerial exception” to the ADEA. We believe that, while the RFRA’s application is a matter of law, it would be appropriate to hear from the district court first, rather than seek yet further briefing in this court. We therefore vacate and remand for reconsideration under the RFRA standards.
Notes
. Appellant initially moved for a preliminaiy injunction requiring appellees to restore his active status, but he withdrew the motion after the NYAC and Lyght appointed another clergy member to fill his vacant position.
. The district court did not address this issue, but because it raises purely legal questions,
. Section 2000e-5(f)(l) provides in pertinent part:
If a charge filed with the Commission ... is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge ... the Commission has not filed a civil action ... or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission ... shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge....
. No court appears to have addressed the issue squarely, but some suggestive caselaw exists. Some courts seem to have assumed without discussion that the RFRA may be asserted as a defense by a private party against another private party. See, e.g., Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.Supp.2d 849, 853 (S.D.Ind.1998) (permitting the private party defendant to assert a RFRA defense but rejecting it after first finding that the ministerial exception negated the need to discuss the RFRA defense); Urantia Found., v. Maaherra,
. The RFRA's stated purposes include "re-stor[ing] the compelling interest test as set forth in Sherbert v. Verner,
. We find no principled constitutional distinction between Congress’s ability to amend statutes on an individual basis and its power to do so in a wholesale manner through an enactment such as the RFRA. See Guerrero,
. Appellant also argues that Boeme explicitly invalidated all of the RFRA due to separation of powers concerns. Specifically, appellant relies upon the statement that the "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.” Boeme,
Dissenting Opinion
dissenting.
The Religious Freedom and Restoration Act (“RFRA”) is not relevant to this dispute. First, appellees have unambiguously indicated that they do not seek to raise, a RFRA defense, and the statute’s protections, even if otherwise applicable, are thus waived. Second, the statute does not apply to disputes between private parties. Third, we should affirm the judgment of the district court without reaching the RFRA issue on the ground that Supreme Court and Second Circuit precedent compels a finding that the Age Discrimination in Employment Act (ADEA); 29 U.S.C. § 621 et seq., does not govern disputes between a religious entity and its spiritual leaders. The majority’s opinion thus violates a cardinal principle of judicial restraint by reaching unnecessarily the question of RFRA’s constitutionality. For these reasons, I respectfully dissent.
A.
Because the parties’ original submissions to this Court mentioned RFRA without providing a detailed analysis of either the Act’s constitutionality or its relevance to this case, we ordered supplemental
In several portions of appellees’ supplemental brief that the majority neglects to mention, appellees state plainly that they do not intend to raise a RFRA defense. Appellees’ supplemental brief explains that “the reference to RFRA in Appellees’ [original] brief was for the limited purpose of providing an example of how critically the question of ‘entanglement’ was viewed” by Congress. In other words, appellees’ aim was not to rely on the statute as a defense against appellant’s claims, but merely to illustrate Congress’s agreement with the proposition that “entanglement of the Government in church affairs [was] prohibited by the First Amendment.” (emphasis added). In fact, appellees explicitly reject the application of RFRA to their claims because they believe that the statute does not apply to suits between private parties, and “the case at bar is a matter relating to a private employment situation and does not involve actions by the government.” The letter-brief concludes: “We do not think this issue [RFRA] is determinative in the matters raised by this case.” While the majority might find appellees’ position unwise or “suprisfing],” Maj. Op. at 104, appellees’ letter-brief clearly waives any RFRA defense.
The majority does not contest that RFRA’s protections are generally waiva-ble. Maj. Op. at 104; see United States v. Amer,
The majority’s refusal to recognize ap-pellees’ waiver in this case is at odds with RFRA’s text, which provides that individuals “may assert” a RFRA defense when challenging a substantial burden on their religious rights, not that they must assert a RFRA defense when religious rights are burdened. 42 U.S.C. § 2000bb-l(c) (emphasis added). Moreover, the majority’s insistence on the viability of a RFRA defense despite appellees’ waiver leads the Court to assess RFRA’s constitutionality unnecessarily. See Cutter v. Wilkinson,
The majority’s approach is also inconsistent with our case law, which has recognized waiver of statutory religious rights even where a litigant raises claims under the Free Exercise Clause. In Fifth Avenue Presbyterian Church v. City of New York,
The most troublesome aspect of the majority’s ruling on waiver, however, is that it fundamentally misconstrues the nature of RFRA and First Amendment rights, and, in doing so, directly contradicts Supreme Court precedent. The majority holds that because appellees invoke the FirsL-Amendment-based “ministerial exception” and allege interference with their rights under the Free Exercise and Establishment Clauses, they have effectively “ask[edj us to apply the RFRA, but not to mention it.” Maj. Op. at 104. This is incorrect. RFRA and the First Amendment do not provide identical protections, and the invocation of First Amendment rights — whether under the Free Exercise or the Establishment Clause — does not necessarily implicate RFRA.
As interpreted by the Supreme Court, for example, the Free Exercise Clause
ity as applied to federal law, as opposed to state law,
Nor can the majority plausibly argue that appellees’ Establishment Clause defense necessarily implicates RFRA. To satisfy the Establishment Clause: (1) the statute must have “a secular legislative purpose”; (2) the statute’s “principal or primary effect must be one that neither advances nor inhibits religion”; and (3) “the statute must not foster an excessive
The majority’s assertion that appellees have presented a RFRA defense in “all but-name” would be more plausible if something in appellees’ briefs indicated that they sought protection beyond that which the Constitution guarantees. Nothing in the briefs, however, supports such a conclusion. Appellees’ briefs rely heavily on the Free Exercise Clause, the Establishment Clause, and case law interpreting those provisions. Nowhere do they ask that the Court apply a standard stricter than what the First Amendment requires.
In sum, because appellees’ religious freedom argument relies only on the Free Exercise and Establishment Clauses, and because the substance of the protections afforded by these constitutional provisions differs considerably from the protections afforded by RFRA, as interpreted by the Supreme Court, I cannot agree with the majority’s conclusion that appellees have “[i]n substance” relied on RFRA. Maj. Op. at 104.
The majority’s refusal to recognize ap-pellees’ clear waiver of any RFRA defense appears to rest, in part, on its disagreement with the reasons underlying appel-lees’ decision not to pursue such a defense. Specifically, the majority takes issue with appellees’ conclusion that RFRA does not apply to suits between private parties. See Maj. Op. at 104-105. I am unaware of any other case in which this Court, after ordering supplemental briefing to allow a party to discuss a waivable statutory defense, refused to recognize the party’s subsequent waiver of that defense on the ground that the Court disagreed with counsel’s reasons for declining to rely on the statute. Cf. DeLuca v. Lord,
Quoting the Supreme Court, the majority argues that “[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law.” Maj. Op. at 104-105 (quoting Kamen v. Kemper Fin. Servs., Inc.,
B.
Even assuming, arguendo, that appel-lees’ clear disclaimer of any RFRA defense does not suffice to waive such a defense, I would find it improper to remand the case to the district court for consideration of RFRA’s implications because I disagree with the majority’s conclusion regarding RFRA’s applicability. RFRA by its terms does not apply to suits between private parties.
Two provisions of the statute implicitly limit its application to disputes in which the government is a party. Section 2000bb-l(c) states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). In the majority’s view, we should read this provision as “broadening, rather than narrowing, the rights of a party asserting the RFRA.” Maj. Op. at 103. This interpretation would be questionable even if Section 2000bb-l(e) were the only provision of the statute affecting the question of whether RFRA applies to private suits. When read in conjunction with the rest of the statute, however, it becomes clear that this section reflects Congress’s understanding that RFRA claims and defenses would be raised only against the government. For instance, section 2000bb-l(b) of RFRA provides that where a law imposes a substantial burden on religion, the “government ” must “demonstrate! ] ... that application of the burden” is the least restrictive means of furthering a compelling governmental interest (emphasis added). The statute defines “demonstrate” as “meetfing] the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot “go[ ] forward” with any evidence.
I recognize that according to RFRA’s “applicability” section, the statute applies “to all Federal law.” 42 U.S.C. § 2000bb-3. This provision, however, is not inconsistent with a finding that the statute does not apply to suits between private parties. Read in conjunction with the rest of the statute, the provision simply requires courts to apply RFRA “to all Federal law” in any lawsuit to which the government is a party.
The majority objects that this interpretation makes RFRA’s protections improperly dependent on whether a private party, as opposed to the EEOC, brings suit under the ADEA. “[T]he substance of the ADEA’s prohibitions,” the majority argues, “cannot change depending on whether it is enforced by the EEOC or an aggrieved private party.” Maj. Op. at 103. The majority does not explain, however, why this is so. If RFRA amends all federal statutes as they apply to suits in which the government is a party, then the substance of the ADEA’s prohibitions most certainly can change depending on who enforces it. Although the majority evidently finds this unsatisfactory from a policy perspective, there is no acceptable reading of the statute that would yield the kind of consistency the majority desires.
Finally, as noted above, the majority concedes that it is unable to locate a single court holding that directly supports its novel application of RFRA to a suit between private parties. See Maj. Op. at 103 n. 4.
C.
Even if appellees had not waived the RFRA defense, and even if RFRA applied to suits between private parties, I would still find it unnecessary to reach the RFRA issue, or to analyze the statute’s constitutionality, because Supreme Court and Second Circuit precedent compel the conclusion that the ADEA does not apply to this dispute. Because the ADEA does not apply, there is no “substantial burden” on religion, and RFRA, even if constitutional, is irrelevant.
Distinguishing Catholic Bishop, we concluded in DeMarco v. Holy Cross High Sch.,
As a general rule, federal courts may decide civil disputes, including employment discrimination disputes, between a religious institution and its employees without violating the First Amendment. See Mer-
As we noted in DeMarco, the relationship between a religious institution and certain of its employees may be “so pervasively religious that it is impossible to engage in an age-discrimination inquiry without serious risk of offending the Establishment Clause.” Id. at 172. This risk is particularly serious in employment disputes between religious institutions and their spiritual leaders where the enforcement of statutes like the ADEA might threaten the “power of religious bodies to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Serbian E. Orthodox Diocese for the U.S. & Can. v. Milivojevich,
In light of these serious constitutional concerns, we must ask whether Congress intended to apply the ADEA to religious institutions in their selection of spiritual leaders. See Catholic Bishop,
DeMarco, however, involved an employment dispute between a religious institution and a math teacher who, despite having some religious duties, served primarily non-religious functions in a parochial school. Here, in contrast, the dispute is between a minister with primarily religious duties and a church that no longer wishes him to serve as pastor of a congregation. That Congress intended the ADEA and Title VII to apply under the circumstances described in DeMarco does not indicate an intention that those statutes should apply in all circumstances. Nothing in the text, structure, or legislative history of the ADEA indicates an intention to extend its provisions to a religious body’s selection or dismissal of its ministers. See Catholic Bishop,
The majority suggests that reliance on Catholic Bishop (and DeMarco) is unwarranted, because “RFRA [is] the full expression of Congress’s intent with regard to the religion-related issues before us and displacéis] earlier judge-made doctrines that might have been used to ameliorate the ADEA’s impact on religious organizations and activities.” Maj. Op. at 102. Even if RFRA applied to private suits and had not been waived in this case, I would disagree with the majority’s suggestion that the statute completely displaces the Catholic Bishop analysis. Although the Catholic Bishop rule and RFRA serve similar purposes, they require courts to undertake different inquiries. See Univ. of Great Falls v. NLRB,
D.
I believe that a remand is a wasteful expenditure of judicial resources and an unnecessary and uninvited burden on the parties. The district court is in no better position than we are to decide either the statutory or constitutional questions presented in this case. In my view, the most appropriate disposition of this case would be to affirm the district court’s dismissal of appellant’s claims on the ground that the
. In addition to ignoring most of the language in the appellees’ brief relating to waiver, the majority opinion makes two factually erroneous claims regarding the content of the supplemental letter-briefs. First, the majority writes that “appellant argues that the RFRA is inapplicable only because it is unconstitutional.” Maj. Op. at 104. On the contrary, appellant argues also that RFRA is inapplicable because "[tjhere is no substantial burden to the free exercise of religion that could result from a ruling by this court” that appellees violated the ADEA. The majority also contends that “[t]he parties have not briefed the issue of how [RFRA] impacts the merits of this case.” Maj. Op. at 109. Both parties, however, have addressed the question of RFRA’s relevance to this suit. Appellant argues that RFRA is inapplicable because “[tjhere is no substantial burden to the free exercise of religion” in this case, and that, in any event, “application of RFRA to federal law is unconstitutional.” Appellees, in turn, argue that RFRA is constitutional but should not affect the outcome of this case.
. The other "cardinal rule[ ]" cited in Brockett is that federal courts should "never ... formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”
. Like RFRA, RLUIPA prohibits the government from imposing substantial burdens on religion even where the burden results from a neutral law of general applicability. See 42 U.S.C. § 2000cc. RLUIPA’s remedial provision is virtually identical to RFRA’s. Compare 42 U.S.C. § 2000cc-2(a) (“A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”), with 42 U.S.C. § 2000bb-l(c) ("A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”). RLUIPA is simultaneously more broad and more narrow than RFRA, however. RLUIPA is more broad because it still reaches state law. See Cutter v. Wilkinson,
. I express no view on whether RFRA is constitutional as applied to federal law because it is unnecessary for us to reach this question.
. Before Boeme, a reasonable argument could have been made that all Free Exercise Clause claims required scrutiny under RFRA. The Tenth Circuit, for example, held in Werner v. McCotter,
[I]n Werner, decided prior to City of Boeme, we were laboring under the false understanding that RFRA "legislatively overturned a number of recent Supreme Court [free exercise] decisions" and that it created a new rule of constitutional law. Thus, we concluded that because the language of RFRA made it applicable to "all cases where free exercise of religion is substantially burdened,” its standard ought to control a Free Exercise Clause claim even when not raised. Because the Supreme Court has made clear that the Werner court's assumptions about RFRA were faulty, its rationale is no longer convincing.
United States v. Hardman,
. As recently emphasized by a plurality of Justices, the Supreme Court has not applied the Lemon test with much consistency. See Van Orden v. Perry, -U.S. -,
. The closest appellees come to making a RFRA argument, as opposed to a First Amendment argument, is a statement in their original brief that application of the ADEA would “substantially burden the free exercise rights of the United Methodist Church.” This is the only occasion, however, in which appel-lees employ RFRA-like language by referring to the alleged intrusion on their rights as a "substantial!] burden,” and it is clear from context that the statement formed part of ap-pellees' Establishment Clause argument that application of the ADEA would foster an excessive entanglement with religion. The brief did not purport to raise a separate defense under RFRA. In any event, even if appellees' mention of a “substantial! ] burden” in their original brief could be generously construed as an attempt to present a RFRA defense, appellees' subsequent letter-brief makes clear that this was not their intent and that they do not seek to invoke RFRA's protections.
. There are two plausible ways to reconcile section 2000bb-l(b) of RFRA with the majority opinion in this case. The first would be to require government intervention in every private suit where one of the parties asserts that a law has — even incidentally — imposed a sub
. All of the examples cited in the Senate and House Reports on RFRA involve actual or hypothetical lawsuits in which the government is a party. See S. Rep. No. 103-111 (1993); H.R. Rep. 103-88 (1993). The lack of even a single example of a RFRA claim or defense in a suit between private parties in these Reports tends to confirm what is evident from the plain language of the statute: It was not intended to apply to suits between private parties.
. The majority cites dicta from district court opinions in Indiana and Arizona but concedes that those courts "assumed” that RFRA could apply without analyzing the issue in any depth. See Maj. Op. at 103 n. 4.
. The Court reached this conclusion even though the NLRA did not expressly include religious institutions in its list of eight types of employers exempted from the act. See Catholic Bishop,
. As discussed below, DeMarco also found the ADEA distinguishable from the NLRA because Congress clearly intended the ADEA to apply to religious institutions. See 4 F.3d at 172.
. This conclusion is consistent with the holdings of at least seven of our sister Circuits, which have adopted a limited "ministerial exception” that exempts religious institutions on First Amendment grounds from employment discrimination suits brought by clergy members or other employees serving primarily religious roles. See Roman Catholic Diocese of Raleigh, N.C.,
. I take no issue, however, with the analysis of the ADEA's procedural requirements in section (a) of the majority’s opinion. See Maj. Op. at 100-102.