*3 BADE, and COLLINS, Circuit Judges, join, dissenting from the denial of rehearing en banc:
By declining to rehear this case en banc, our court
embraces
the narrowest construction of
the First
Amendment’s “ministerial exception” and splits from the
consensus of our sister circuits that the employee’s
ministerial function should be the key focus. The panel
majority held that Kristen Biel, a fifth-grade teacher who
taught religion and other classes at a Catholic school, was
not a “minister” because the circumstances of her
employment were not a carbon copy of the plaintiff’s
circumstances in
Hosanna-Tabor Evangelical Lutheran
Church & School v. E.E.O.C.
,
This is precisely the case warranting en banc review. We
adopted the ministerial exception en banc prior to
Hosanna-
Tabor
.
See Alcazar v. Corp. of the Catholic Archbishop of
Seattle
, 627 F.3d 1288 (9th Cir. 2010) (en banc). The
ministerial exception “is undeniably an issue of exceptional
importance” because
its denial “portends serious
consequences for one of the bedrock principles of our
country’s formation—religious freedom.”
Bollard v. Cal.
Province of the Soc’y of Jesus
,
Since then, the Supreme Court unanimously upheld the ministerial exception in , suggesting its application in a case like this. Three Justices—Thomas, Alito, and Kagan—filed or joined two separate concurrences specifically proposing legal tests under which the ministerial exception plainly applies here (and no Justice has proposed a test undermining its application here). And virtually all our sister courts—and state supreme courts—adopted the ministerial exception in similar cases.
In this case, five different amici—coalitions of religiously diverse organizations and law professors—urge this court to correct its legal error. As amici explain, the panel majority’s approach trivializes the significant religious *4 function performed by Catholic school teachers. This court’s narrow construction of the exception threatens the autonomy of minority religious groups, like amici, “for whom religious education is a critical means of propagating the faith, instructing the rising generation, and instilling a sense of religious identity.” Brief of Gen. Conference of Seventh-Day Adventists, Int’l Soc. for Krishna Consciousness, Inc., Jewish Coalition for Religious Liberty, and Shaykh Hamza Yusuf as Amici Curiae in Support of Rehearing and Rehearing En Banc at 2.
In light of all this, where does our court now stand on the ministerial exception? Despite a unanimous Supreme Court opinion upholding the exception, we are weaker, not stronger, in applying it. Not once, not twice, but three times now in the last two years, we have departed from the plain direction of the Supreme Court and reversed our district courts’ faithful application of Supreme Court precedent. See also Puri v. Khalsa , 844 F.3d 1152 (9th Cir. 2017); Morrissey-Berru v. Our Lady of Guadalupe Sch. , No. 17- 56624, 2019 WL 1952853 (9th Cir. Apr. 30, 2019) (unpublished). And in each successive case, we have excised the ministerial exception, slicing through constitutional muscle and now cutting deep into core constitutional bone.
In turning a blind eye to St. James’s religious liberties protected by both Religion Clauses, we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid. Accordingly, I dissent.
I
The ministerial exception is well-entrenched in our
constitutional framework. “The Supreme Court has long
recognized religious organizations’ broad right to control the
selection of their own religious leaders.”
Puri
, 844 F.3d
at 1157. In 2012, a unanimous Supreme Court formally
recognized a “ministerial exception” “grounded in the First
Amendment[] that precludes application of [employment-
*5
6
B IEL V . S T . J AMES S CHOOL discrimination] legislation to claims concerning the
employment relationship between a religious institution and
its ministers.” ,
A
I begin with the text. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I. The Establishment Clause and Free Exercise Clause have been said to “often exert conflicting pressures,” Cutter v. Wilkinson , 544 U.S. 709, 719 (2005), but they speak in harmony to ensure dual protections for religious freedom.
A troubled history of religious persecution led a young
United States to break from the familiarities of living under
the established Church of England.
See Hosanna-Tabor
To avoid entangling government and religion, our
government is prohibited from deciding matters inherently
ecclesiastical.
See Watson v. Jones
,
The Founders understood these First Amendment
protections were so fundamental that enshrining them in the
Constitution outweighed the ancillary costs. These costs, in
some cases, are not insignificant. They include exemptions
for religious organizations from some laws protecting
society’s most vulnerable from employment discrimination.
See
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e
et seq
. For example, after the Salvation Army
terminated one of its ministers, the employee sued, alleging
a violation of Title VII.
See McClure v. Salvation Army
B
In , the Supreme Court followed the
uniform approach of the Courts of Appeals and held the
ministerial exception bars employment discrimination suits
by the group’s ministers.
The Court held the ministerial exception “ensures that
the authority to select and control who will minister to the
faithful—a matter ‘strictly ecclesiastical’—is the church’s
alone.”
Id.
at 194–95 (internal citation omitted) (quoting
Kedroff
,
Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its
beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. Id. at 188–89.
The Court unanimously held the ministerial exception barred Perich’s suit. Although Perich was an elementary school teacher, the Court agreed with every Court of Appeals to have considered the question that the “exception is not limited to the head of a religious congregation.” Id. at 190. However, the Court was “reluctant . . . to adopt a rigid formula for deciding when an employee qualifies as a minister.” Id. Instead, it found that “all the circumstances of [Perich’s] employment,” supported “that the exception covers Perich.” Id.
The Court discussed four “considerations” which supported its conclusion that Perich fell within the exception’s scope: “the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church.” at 192. Each of these separate considerations evidenced Perich’s ministerial role, including that her “job duties reflected a role in conveying the Church’s message and carrying out its mission.” Id. at 192. Thus, “the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out *8 10 B IEL V . S T . J AMES S CHOOL their mission” warranted application of the exception to Perich. Id. at 196.
While each of the four considerations confirmed Perich was a minister, the Court’s discussion of them did not create a test for courts to use to decide whether an employee was a “minister” under the exception. The Court specifically reserved the ministerial exception’s legal floor: “We express no view on whether someone with Perich’s duties would be covered by the ministerial exception in the absence of the other considerations we have discussed .” Id. at 193 (emphasis added).
Justice Alito, joined by Justice Kagan, however, did express a view on this issue: “[C]ourts should focus on the function performed by persons who work for religious bodies.” Id. at 198 (Alito, J., concurring) (emphasis added). [2] This “functional consensus” was widespread before and has remained dominant afterward. [3] As such, nothing in the opinion “should . . . be read to upset [the] consensus” among Courts of Appeals (including our own [4] ) that took this “functional approach.” Id. at 204. The concurrence also cautioned it would be a mistake, given the country’s religious diversity, “if the term ‘minister’ or the [2] Justice Thomas went further, noting the Religion Clauses require courts “to defer to a religious organization’s good-faith understanding of who qualifies as its minister.” at 196 (Thomas, J., concurring).
[3]
See Hollins v. Methodist Healthcare, Inc.
,
[4]
“The Ninth Circuit too has taken a functional approach, just
recently reaffirming that ‘the ministerial exception encompasses more
than a church’s ordained ministers.’” ,
II
The panel majority mistakes to create a resemblance-to-Perich test using the “four considerations” which the Supreme Court found evidenced Perich’s ministerial role. Because Biel’s circumstances resembled Perich’s in only one of the four areas, the panel majority held erroneously that the exception did not apply.
Biel taught fifth grade at St. James Catholic School in
Torrance.
Biel
,
Biel’s signed employment contract required her to work toward St. James’s “overriding commitment” to the “doctrines, laws, and norms” of the Catholic Church, and to “model, teach, and promote behavior in conformity to the teaching of the Roman Catholic Church.” Id . It also stated the school’s mission: “to develop and promote a Catholic School Faith Community within the philosophy of Catholic education as implemented at [St. James], and the doctrines, laws, and norms of the Catholic Church.” Id . at 612 (Fisher, J., dissenting). The school’s faculty handbook further required that teachers “participate in the Church’s mission” of providing “quality Catholic education to . . . students, educating them in academic areas and in . . . Catholic faith and values.” Id . at 605–06 (majority op.).
At Biel’s only formal teaching evaluation, the school’s principal, Sister Mary Margaret, measured Biel’s performance in both secular and religious aspects. Id . at 606. The evaluation was positive, though noting areas for improvement. Id. Less than six months later, Biel learned she had breast cancer. Id. She told the school she would miss work to undergo surgery and chemotherapy.
A few weeks later, Biel was informed her teaching
*10
contract would not be renewed for the next academic year.
Id.
Biel sued St. James, alleging her termination violated the
ADA. The district court determined the ministerial
exception applied and granted summary judgment in favor
of St. James.
Biel
,
Our court reversed in a 2–1 decision.
Biel
,
Because, “[a]t most, only one of the four Hosanna-Tabor considerations weigh[ed] in St. James’s favor,” the panel majority held the ministerial exception did not apply. Id . at 610. The majority refused “to exempt from federal employment law all those who intermingle religious and secular duties but who do not ‘preach [their employers’] beliefs, teach their faith, . . . carry out their mission . . . [and] guide [their religious organization] on its way.’” Id . at 611 (quoting Hosanna-Tabor , 565 U.S. at 196). The panel majority “decline[d] St. James’s invitation to be the first” federal court of appeals to apply “the ministerial exception in a case that bears so little resemblance to .” at 610.
III
When considering the “totality of the circumstances,” the panel majority converted the four considerations discussed by the Supreme Court into a comparative test: “ Only after describing all of these aspects of Perich’s position did the Supreme Court hold . . . that Perich was a minister covered by the ministerial exception.” Id . at 608 (emphasis added) (internal quotation marks omitted). Under the panel majority’s test, a religious organization must show that its employee served a significant religious function and the presence of at least one additional “consideration” to receive protection under the ministerial exception.
But mandates no such requirement. It *11 did not establish a test or set any legal floor that must be met for the exception to apply. It held only that the exception exists, applies to ADA claims, and covered Perich. Hosanna-Tabor , 565 U.S. at 190. The panel majority embraced the narrowest reading of the ministerial exception and diverged from the function-focused approach taken by our court previously, our sister courts, and numerous state supreme courts.
As our court recently observed, “The Supreme Court has
provided
some guidance
on the circumstances that
might
qualify an employee as a minister
within the meaning of the
ministerial exception.”
Puri
, 844 F.3d at 1160 (emphasis
added). Other circuits agree.
See Grussgott v. Milwaukee
Jewish Day Sch., Inc.
, 882 F.3d 655, 658 (7th Cir. 2018),
cert. denied
, 139 S. Ct. 456 (2018) (“Consequently,
Grussgott’s argument focuses on differentiating herself from
the teacher in that case, and she is correct that her role is
distinct from the called teacher’s in
Hosanna-Tabor
. But the
Supreme Court expressly declined to delineate a ‘rigid
formula’ for deciding when an employee is a minister.”
(citing , 565 U.S. at 190));
Fratello v.
Archdiocese of N.Y.
,
Ignoring the warnings of Justices Alito and Kagan (and
Justice Thomas), the panel majority found that because three
of the considerations—all of which relate to Biel’s title—
were not present, the exception did not apply.
See Biel
B IEL V . S T . J AMES S CHOOL 15 other three considerations less relevant, or not relevant at all. Such is the case here.
Comparing Biel’s title to Perich’s, the panel majority
reasoned, “it cannot be said that [Biel’s title of] Grade 5
Teacher ‘conveys a religious—as opposed to secular—
meaning.’”
Biel
, 911 F.3d at 608–09 (quoting
Conlon v.
InterVarsity Christian Fellowship
, 777 F.3d 829, 834–35
(6th Cir. 2015)). Unlike in
Biel
, Perich’s title in
Hosanna-
Tabor
was particularly relevant because, as the Court noted,
the Sixth Circuit “failed to see any relevance in the fact that
Perich was a commissioned minister.”
Requiring religious titles is particularly problematic when religious organizations do not bestow such titles on some (or any) of their ministers yet clearly understand the employee’s role to carry religious significance. This is why “a recognized religious mission [which] underlie[s] the description of the employee’s position” is also “surely . relevant,” just as an employee’s title or ordination may be. , 565 U.S. at 193 Title may cut one way because “an employee is more likely to be a minister if a religious organization holds the employee out as a minister by bestowing a formal religious title.” Puri , 844 F.3d *13 at 1160 (emphasis added). Lack of a religious title does not suggest the opposite.
It’s not surprising that Biel’s title, as a Catholic school teacher, differed from Perich’s title, as a Lutheran school teacher. “Minister,” although commonly used in Protestant denominations, is “rarely if ever used in this way by Catholics , Jews, Muslims, Hindus, or Buddhists.” Hosanna- Tabor , 565 U.S. at 198 (Alito, J., concurring) (emphasis added). Indeed, focus on Biel’s title “trivialized how the distinct Catholic mission of integral formation permeated everything Ms. Biel did as a teacher” and “downplays Ms. Biel’s function as a Catholic teacher.” Brief for Nat’l Catholic Educ. Ass’n as Amicus Curiae in Support of Rehearing and Rehearing En Banc at 4.
Catholicism contains a rich history replete with evidence that its teachers play an essential role in its religious mission, yet it doesn’t always embrace a formal title for such teachers as Hosanna-Tabor did with Perich. See generally id. at 5–9. Because of this, St. James thoroughly explained in its Motion for Summary Judgment why the role of the teacher comes with “duties and responsibilities” to be “performed within the School’s overriding commitment to developing its faith” by incorporating “Catholic values and traditions throughout all subject areas, not just during the Religion course.” St. James’s Mot. For Summ. J. at 3–4, Biel v. St. James Sch. , No. 15-04248, ECF No. 65. Biel, as a teacher, played an “instrumental role in furthering and promoting the Catholic faith as part of her daily job duties.” at 13.
Nor is it surprising that a Catholic school’s practices regarding ordination differ. As with title, religious training may be relevant, as it was in the Lutheran context. But other religious groups don’t always require similar formal training yet clearly bestow ministerial roles. The concept of ordination—although recognized by some, and by some only as to certain offices—“has no clear counterpart” in others. [5] , 565 U.S. at 198 (Alito, J., concurring) . The “Catholic Church has repeatedly emphasized that the growth of lay Catholic teachers—those who are succeeding roles previously held by religious orders, sisters, brothers, and clergy—does not change a Catholic teacher’s responsibilities.” Brief of Nat’l Catholic Educ. Ass’n as Amicus Curiae in Support of Rehearing and Rehearing En Banc at 14; see also id. at 8–9 & n.2 (“only 2.8% of Catholic full-time professional staff are either members of the clergy or religious orders”). These diverse religious practices are why Justices Alito and Kagan *14 cautioned against emphasis on title.
Additionally, courts are ill-equipped to gauge the
religious significance of titles or the sufficiency of training.
Biel’s title may appear to carry little or no religious
significance to a court unfamiliar with the customs of
Catholic education, but Biel’s employment at St. James had
significant religious substance.
See Biel
,
Furthermore, ignoring this history and these practices risks the very Establishment Clause violation the ministerial exception was intended to prevent. As Justice Thomas explains:
Our country’s religious landscape includes organizations with different leadership structures and doctrines that influence their conceptions of ministerial status. The question whether an employee is a minister is itself religious in nature, and the answer will vary widely. Judicial attempts to fashion a civil definition of “minister” through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the “mainstream” or unpalatable to some. at 197 (Thomas, J., concurring).
Other courts have rightly considered these differences.
For example, the Massachusetts Supreme Judicial Court
applied the ministerial exception to a teacher at a Jewish
school, although “she was not a rabbi, was not called a rabbi,
*15
and did not hold herself out as a rabbi” on a record “silent as
to the extent of her religious training.”
Temple Emanuel of
Newton v. Mass. Comm’n Against Discrim.
,
Finally, the panel majority also contrasted how Perich held herself out as a minister, noting “nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community.” Biel , 911 F.3d at 609. That Perich held herself out as a minister merely evidenced her ministerial role; it did not institute a requirement that others must hold themselves out as ministers to qualify for the exception. That is one way in which an employee is “more likely to be considered a minister.” Puri , 844 F.3d at 1160.
Biel’s religious duties are far more relevant than whether
she personally felt she was a minister.
See Grussgott
In sum, as title, training, and how an employee holds herself out differ widely depending on tradition, courts have rightly focused on the fourth consideration—function.
IV
The panel majority rejected a function-focused approach embraced by all other circuits, including our own, before and after , in favor of its resemblance test. Despite Biel’s religious function, the panel majority refused to apply the exception because it determined the other considerations were not present. [6] Biel’s significant religious [6] However, Judge Fisher in dissent persuasively found two of the “considerations” weighed in favor of the exception. See Biel , 911 F.3d at 616–20, 622 (concluding the ministerial exception applied because of *16 20 B IEL V . S T . J AMES S CHOOL function, as a Catholic school teacher who teaches religion, demonstrates why the exception applies.
A
The panel majority mistakes Hosanna-Tabor to hold that the ministerial exception cannot apply based on important religious functions alone, despite the Court’s express reservation of the question. See Biel , 911 F.3d at 609 (rejecting that the exception applies based on function and “[i]f it did, most of the analysis . . . would be irrelevant dicta”); id. at 610 (“the other considerations that guided the reasoning in Hosanna-Tabor and its progeny are not present here”).
Our court should have adhered to circuit precedent and followed the lead of our sister circuits by focusing on “the function performed by persons who work for religious bodies.” Hosanna-Tabor , 565 U.S. at 198 (Alito, J., concurring). The majority’s departure from the functional approach is even more surprising because the court has previously placed more emphasis on function post- .
[A]n employee whose “job duties reflect a role in conveying the Church’s message and carrying out its mission” is likely to be covered by the exception, even if the employee devotes only a small portion of the workday to strictly religious duties and substance reflected in her title and important religious functions she performs).
spends the balance of her time performing secular functions.
Puri
,
After
Hosanna-Tabor
, other circuits have placed greater
emphasis on an employee’s function.
See Lee v. Sixth Mount
Zion Baptist Church of Pittsburgh
,
Similarly, state supreme courts have emphasized the
importance of function.
See Temple Emanuel of Newton
,
B
The ministerial exception protects the “interest of
religious groups in choosing who will preach their beliefs,
teach their faith, and carry out their mission.”
Hosanna-
Tabor
, 565 U.S. at 196. It “insulates a religious
organization’s ‘selection of those who will personify its
beliefs.’”
Puri
,
Catholic school teachers certainly hold this special role. See Brief of Nat’l Catholic Educ. Ass’n as Amicus Curiae in Support of Rehearing and Rehearing En Banc at 5–9 (schools and teachers lay at the core of the church’s ministry). According to the Vatican, the Catholic Church founded schools “because she considers them as a privileged means of promoting the formation of the whole man, since the school is a centre in which a specific concept of the world, of man, and of history is developed and conveyed.” Id . at 5 (quoting The Sacred Congregation for Catholic Education, The Catholic School #8(5) (1977)). Teachers of religion at religious schools, regardless of title, training, or official ordination, effectuate this purpose and carry out the Church’s mission by ministering to students. [7]
At St. James, teachers “preach” and “teach” the school’s
Catholic beliefs and faith. By instructing new generations,
teachers carry out the school’s mission, precisely what a
unanimous Supreme Court found relevant.
[7] The religious nature of teachers is not unique to Catholicism. See Brief for Church of God in Christ, Inc. and Union of Orthodox Jewish Congregations of Am. as Amicus Curiae in Support of Rehearing and Rehearing En Banc at 1, 14 (parochial K–12 schools teach “religious and secular studies in a holistic environment”; a central Jewish prayer repeats the Biblical directive to “[t]ake to heart these instructions with which [God] charges you this day” and to “[i]mpress them upon your children” (quoting Worship Services: V’ahavta (Read) , ReformJudaism.org, https://tinyurl.com/yddle9l6)); Brief for Gen. Conference of Seventh- day Adventists, Int’l Soc’y for Krishna Consciousness, Inc., Jewish Coal. for Religious Liberty, and Shaykh Hamza Yusuf as Amicus Curiae in Support of Rehearing and Rehearing En Banc at 2 (“[R]eligious education is a critical means of propagating the faith, instructing the rising generation, and instilling a sense of religious identity” for minority religious groups like amici .).
24 B IEL V . S T . J AMES S CHOOL
Our sister circuits pay closer attention to function,
particularly in religious educational settings like the one
here.
See, e.g.
,
Grussgott
, 882 F.3d at 657 (Jewish Day
School teacher’s role fell within “ministerial exception as a
matter of law,” given “[h]er integral role in teaching her
students about Judaism and the school’s motivation in hiring
her, in particular, demonstrate that her role furthered the
school’s religious mission”);
Fratello
,
Indeed, religious groups will have differing “views on
exactly what qualifies as an important religious position, but
it is nonetheless possible to identify a general category of
‘employees’ whose functions are essential
to
the
independence of practically all religious groups.”
Hosanna-
Tabor
,
The panel majority’s minimized view of the religious
significance of Biel’s role as a teacher stands in stark
contrast to this court’s view of the role of teachers in secular
contexts. This court recently expounded on the instrumental
role of a high school football coach—a role “akin to being a
teacher”—as his “multi-faceted” job “entailed both teaching
and serving as a role model and moral exemplar,” because
of which he had a “duty to use his words and expressions to
‘instill[ ] values.’”
Kennedy v. Bremerton Sch. Dist.
Religion teaches morals and instills values, and “[t]he
various characteristics of the [parochial] schools make them
a powerful vehicle for transmitting the Catholic faith to the
next generation.”
Lemon
,
C
Our court is now the first to issue an opinion narrowing
the First Amendment’s ministerial exception to apply only
where an employee of a religious organization serves a
[8]
Whatever the continuing value of the legal test in
Lemon
, the
Supreme Court’s recognition of the religious mission of parochial
schools remains unchallenged.
See Am. Legion v. Am. Humanist Ass’n
,
No.17-1717, slip op. at 12–16 (U.S. June 20, 2019) (plurality op. of
Alito, J., joined by Roberts, C.J., Breyer, & Kavanaugh, JJ.) (“In many
cases, this Court has either expressly declined to apply the test or has
simply ignored it.”);
id.
, slip op. at 1–4 (Kavanaugh, J., concurring)
(“[T]he
Lemon
test is not good law and does not apply to Establishment
Clause cases . . . .”);
id.
, slip op. at 6–7 (Thomas, J., concurring in the
judgment) (“I would . . . overrule the
Lemon
test in all contexts.”);
id.
slip op. at 6–9 (Gorsuch, J., concurring in the judgment) (“
Lemon
was a
misadventure.”);
see also Freedom From Religion Found., Inc. v. Chino
Valley Unified Sch. Dist. Bd. of Educ.
,
significant religious function and either bestows upon an employee a religiously significant title (at least in a court’s view), or requires the employee to have obtained religious training.
The harmful effects of this opinion have already emerged. In Morrissey-Berru , another panel of this court applied Biel ’s rule to hold summarily in an unpublished opinion that a Catholic school teacher’s “significant religious responsibilities” were insufficient. No. 17-56624, 2019 WL 1952853, at *1. Like Biel , Morrissey-Berru reversed a district court judge’s decision finding the exception applied. The panel acknowledged that Morrissey- *21 Berru
committed to incorporate Catholic values and teachings into her curriculum, as evidenced by several of the employment agreements she signed, led her students in daily prayer, was in charge of liturgy planning for a monthly Mass, and directed and produced a performance by her students during the School’s Easter celebration every year.
Id. But because Biel held that “an employee’s duties alone are not dispositive under ’s framework,” the panel concluded the exception did not bar Morrissey-Berru’s claim. The case for the ministerial exception in Morrissey-Berru is even stronger than in Biel given the Supreme Court’s directive in . Absent further review of Biel , the implications are stark: Catholic schools in this circuit now have less control over employing its elementary school teachers of religion than in any other area of the country. Given our court’s broad coverage, this is not insignificant. Now thousands of Catholic schools in the West have less religious freedom than their Lutheran counterparts nationally. See Larson v. Valente , 456 U.S. 228, 244 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”).
V
In applying the ministerial exception, our court should look to the function performed by employees of religious bodies. Doing so would honor the foundational protections of the First Amendment and ensure all religious groups are afforded the same protection.