397 F.3d 790 | 9th Cir. | 2005
Concurrence Opinion
with whom KOZINSKI, GRABER, and FISHER, Circuit Judges, join, concurring in the order denying rehearing en banc:
Each of the dissents from the denial of rehearing en banc recognizes that our decision in this case follows our earlier decision in Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999). Judge Kleinfeld, Judge Gould, and Judge Bea contend that both Bollard and the case before us constitute constitutionally forbidden intrusions into the employment relationship between a church and its minister. Judge Kleinfeld also contends that our decisions in Bollard and this case conflict with the decisions of our sister circuits.
I disagree with both contentions. I write to emphasize that the rule announced in Bollard and applied in this case is consistent with the constitutional underpinnings of the ministerial exception, and that every court that has addressed a minister’s ability to recover damages for sexual harassment has reached the same conclusion we have.
I. Intrusion into the Relationship Between a Church and Its Minister
Title VII does not contain an exception for plaintiffs employed as ministers. Rather, the “ministerial exception” to Title VII is carved out from the statute based on the commands of the Free Exercise and Establishment Clauses of the First Amendment. Because the “ministerial exception” is carved out of the otherwise applicable requirements of Title VII, the scope of the exception is limited to that which is required by the First Amendment. The ministerial exception protects the church’s interest in choosing its ministers, and in deciding on the duties to be performed by those ministers. For exam-
In both Bollard and this case, the appeals came to us on motions to dismiss under .Rule 12(b)(6) and on the pleadings under Rule 12(c) or 12(h)(2). We therefore assumed the truth of the allegations in the complaints. In Bollard, a Jesuit novice complained of repeated unwelcome homosexual sexual advances during a six-year period by his superiors in the Jesuit order. Bollard brought the offensive conduct to the attention of priests within the Jesuit hierarchy, but got no response. He finally resigned his position and brought suit for damages for sexual harassment under Title VII.
Bollard was not fired from his position as a Jesuit novice. Indeed, the Jesuits were entirely satisfied with his job performance and urged him to stay. Nor did Bollard seek reinstatement or changes in his duties. He sought only compensatory damages for the harm he suffered from the sexual harassment to which he had been subjected. We allowed his suit seeking such damages to go forward.
In this case, Elvig was an associate pastor of Calvin Presbyterian Church. She was subjected to sexual harassment by her superior, the pastor at her church. She complained of the offending conduct to appropriate church authorities, who took no action to stop the harassment. The pastor then retaliated against her for having complained about the harassment. El-vig filed a complaint with the EEOC. She was thereafter terminated from her ministry at Calvin Presbyterian Church, and was prevented from seeking employment as a pastor in other Presbyterian churches.
We declined to allow damages to Elvig for having been terminated, or for having been prevented from ■ seeking ministerial employment at other churches. We held that those actions came within the ministerial exception to Title VII, and that damages for these actions would have constituted an unconstitutional intrusion into the ministerial relationship. On the other hand, following Bollard, we allowed Elvig to seek damages for the sexual harassment and retaliation to which she was subjected:
[T]he termination of Elvig’s ministry and her inability to find other pastoral employment are consequences of protected employment decisions. Consequently, a damage award based on lost or reduced pay Elvig may have suffered from those employment decisions would necessarily trench on the Church’s protected ministerial decisions. The same would be true of emotional distress or reputational damages attributable to those decisions. On the other hand, El-vig may recover for emotional distress and reputational harm caused by the sexual harassment itself — or by retaliatory harassment — because such harassment implicates ... decisions the ministerial exception does not protect.
Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 966 (9th Cir.2004).
Our holdings in Bollard and this case were narrow: (1) In Bollard, the plaintiff did not seek reinstatement or damages based on a failure to reinstate. In this case, we did not allow Elvig a remedy that would have compelled the Church to permit her to seek other ministerial employment, and did not allow damages resulting from Elvig’s termination and inability to obtain other ministerial employment. (2) In neither - Bollard nor this case did we require the defendant churches to articulate a religious justification for their decisions to hire, fire, promote, or proscribe the duties of ministers. In Bollard, we noted that the church explicitly disavowed
Judge Kleinfeld contends that the availability of damages against a church for sexual harassment necessarily interferes with the church’s constitutionally protected decision to hire and retain its ministers. He writes,
[T]o prevent lawsuits alleging sexual harassment, churches will fire ministers who they think expose them to risk of damage awards and hire those who they think will not. So the Elvig majority’s opinion does indeed impinge on churches’ hiring and firing decisions.
Kleinfeld dissent at 799. This argument proves too much. Under Judge Kleinfeld’s reasoning, an altar boy’s suit against the church for sexual abuse by a minister is constitutionally forbidden. Damages in such suits are likely to be higher than the limited damages available in Title VII sexual harassment suits brought by ministers. In addition, the number of sexual abuse suits brought by parishioners dwarfs the few sexual harassment suits that have been, and are likely to be, brought by ministers. The effect of sexual abuse suits brought by parishioners on the employment practices of the church is thus almost certain to be far greater than the effect of sexual harassment suits by ministers. Yet it is clearly established law that such suits are not constitutionally barred, see, e.g., Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 430-31 (2d Cir.1999); Nutt v. Norwich Roman Catholic Diocese, 921 F.Supp. 66, 72-74 (D.Conn.1995); Moses v. Diocese of Colorado, 863 P.2d 310, 319-21 (Colo.1993), and I do not believe that Judge Kleinfeld would advocate a change in that law.
Judge Kleinfeld contends that the precedents allowing suits seeking to redress sexual abuse by a minister can be distinguished because “criminal and civil law applicable to sexual abuse of a parishioner does not regulate a church’s selection, training, and supervision of its own ministers.” Kleinfeld dissent at 804. But under his own reasoning, this is not so. If the threat of damage awards in suits arising out of sexual abuse of parishioners is even greater than in Title VII sexual harassment suits (as I believe it is), such suits not only “regulate a church’s selection, training, and supervision of its own ministers,” to use Judge Kleinfeld’s phrase. They “regulate” to an even greater extent than sexual harassment suits. Yet Judge Kleinfeld recognizes that sexual abuse suits are permissible under the First Amendment. So it cannot be that the First Amendment prohibits suits simply because they have the potential to affect (or “regulate”) churches’ hiring and firing decisions.
The First Amendment does not exempt religious institutions from all statutes that regulate employment. For example, the First Amendment does not exempt religious institutions from laws that regulate the minimum wage or the use of child labor, even though both involve employment relationships. See Employment Div. v. Smith, 494 U.S. 872, 888, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (citing Tony and Susan Alamo Foundation v. Sec’y of Labor, 471 U.S. 290, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985) (minimum wage); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944) (child labor)). The First Amendment protects a church’s right to hire, fire, promote, and
Judge Bea contends that the availability of suits against a church for sexual harassment will produce unconstitutionally intrusive inquiries into church affairs whenever a church asserts a defense under Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), that it exercised reasonable care to prevent and correct the harassment. He misunderstands the scope of the Ellerth inquiry. As we wrote in Bollard:
[The Ellerth inquiry] is a restricted inquiry. Nothing in the character of this defense will require a jury to evaluate religious doctrine or the “reasonableness” of the religious practices followed within the Jesuit order. Instead, the jury must make secular judgments about the nature and severity of the harassment and what measures, if any, were taken by the Jesuits to prevent or correct it. The limited nature of the inquiry, combined with the ability of the district court to control discovery, can prevent a wide-ranging intrusion into sensitive religious matters.
196 F.3d at 950; see also Elvig, 375 F.3d at 963 (“The reasonableness component of the Ellerth/Faragher affirmative defense evaluates an employer’s actions in responding to sexual harassment rather than the motivations for that response.” (emphasis in original)). A court inquiring into the reasonableness of the steps a church has taken to prevent or correct sexual harassment need “intrude no further in church autonomy ... than [a court does], for example, in allowing parishioners’ civil suits against a church for the negligent supervision of ministers who have subjected them to inappropriate sexual behavior.” Bollard, 196 F.3d at 947-48 (citing Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 10 F.Supp.2d 138 (D.Conn.1998); Nutt, 921 F.Supp. at 66; Moses, 863 P.2d at 310).
II. Decisions of Other Circuits
The lead case establishing the contours of the ministerial exception is McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972). The McClure court wrote:
The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. 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. It is unavoidably true that these include 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. at 558-59.
A sexual harassment claim is an unusual claim under Title VII (and, indeed, for that reason was somewhat slow to be accepted as part of Title VII). It is not a claim based upon gender or racial inequality in hiring, firing, promotions, or duties, as in McClure. Rather, it is a kind of statutory tort suit, allowing a damage recovery for sex discrimination in the form of sexually-based abusive behavior by co-workers in the workplace.
When we decided Bollard, only one court had confronted a directly comparable
Judge Kleinfeld contends that we have departed in Bollard and in this case from the decisions of our sister circuits, but this is not true. In both cases, we cited and quoted McClure (as well as a number of cases following McClure), and indicated our full agreement with them. As we wrote in Bollard:
These First Amendment restrictions on Title VII provide important protections to churches that seek to choose their representatives free from government interference and according to the dictates of faith and conscience.
* * *
A church’s selection of its own clergy is [a] core matter of ecclesiastical governance with which the state may not constitutionally interfere. A church must retain unfettered freedom in its choice of ministers because ministers represent the church to the people. As the Fifth Circuit has written, they act as the church’s “lifeblood.” McClure, 460 F.2d at 558.
196 F.3d at 945 (some citations omitted); see also Elvig, 375 F.3d at 961.
All of the circuit cases discussed and cited by Judge Kleinfeld in his dissent fall in the McClure line of cases, in which a church’s decision to hire, to fire, and to prescribe the duties of its ministers was constitutionally protected. Judge Klein-feld discusses five circuit cases in text. Kleinfeld dissent at 801-02. Those cases, and their holdings, are as follows: Combs v. Central Texas Annual Conference of United Methodist Church, 173 F.3d 343 (5th Cir.1999) (church’s decision to terminate minister held constitutionally protected); Young v. Northern Ill. Conference of United Methodist Church, 21 F.3d 184 (7th Cir.1994) (church’s decision to deny promotion and discharge probationary minister held constitutionally protected); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir.1985) (church’s denial of pastoral position to applicant held constitutionally protected); Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir.2003) (church spokesperson, acting as a “minister” within the meaning of the exception, complained of having been given poor working conditions and replaced by a less qualified male; church’s actions held constitutionally protected); EEOC v. Catholic University of America, 83 F.3d 455 (D.C.Cir.1996) (nun, acting as a “minister” within the meaning of the exception, denied tenure in Department of Canon Law; church’s decision held constitutionally protected). Judge Kleinfeld cites two additional cases in footnotes. Kleinfeld dissent at 799 n. 6, 801 n. 22. Those cases, and their holdings, are as follows: Gellington
Conclusion
Our decisions in Bollard and this case are fully consistent with the First Amendment and the “ministerial exception” to Title VII. Under Bollard and this case, a church may hire, fire, promote, refuse to promote, and prescribe the duties of its ministers, free from judicial scrutiny under Title VII. It need advance no justification, religious or otherwise, for such actions.
Bollard and this case do, however, hold that sexual harassment by a minister is not protected by the First Amendment. A church is required to comply with Title VII when a minister is sexually harassed by another minister employed by the church, just as a church is required to comply with state tort laws when a parishioner is sexually abused by a minister employed by the church. In neither of these circumstances is a church protected by the First Amendment.
In so holding, neither Bollard nor this case deviates from the holdings of other courts. No court has ever held that sexual harassment by a minister is protected by the First Amendment. In fact, every court confronted with the issue has held that it is not.
Concurrence Opinion
concurring in the order denying rehearing en banc:
Judge Kleinfeld’s allegory to the infamous slaying of Archbishop (now Saint) Thomas Becket puzzles me. Judge Klein-feld’s point seems to be that lawsuits of the type brought by Elvig breach the “ ‘wall of separation’ between church and state,” Kleinfeld dissent at 798, in the following way: Churches will have a reason to fire ministers like Will Ackles because they fear the cost and burden of civil liability, rather than because of their performance as ministers. See id. at 803. And the ease of bringing such lawsuits, Judge Kleinfeld implies, can burden religion just as surely as direct government regulation (represented in its extreme form by Murder in the Cathedral).
While I oppose killing archbishops, either directly or softly with lawsuits, I don’t understand how Judge Kleinfeld’s approach helps. Suppose Judge Kleinfeld is right, and it would violate religious liberty for Henry Plantagenet to rid himself of Becket by getting Elvig’s ur-grandmother to sue him on a trumped-up harassment claim. It seems to me that Henry could achieve the same effect — through the same means — by getting a church janitor or bookkeeper to bring the same claim. Yet the latter kind of suit is clearly not barred by the ministerial exception, which only applies to those “serving the function of ministers.” Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 947 (9th Cir.1999); see also EEOC v. Roman Catholic Diocese, 213 F.3d 795, 800 (4th Cir.2000).
Suits by parishioners or non-ministerial employees resting on generally applicable law are just as likely (if not more likely, see Fletcher concurrence at 792) to affect the incentives to hire, fire and supervise ministers as suits by clergy: If Chaucer’s Friar and his house are held liable for
What, then, makes Elvig’s case so special? Judge Kleinfeld suggests that workplace sexual harassment, unlike other causes of action, falls within the ministerial exception because it is a species of employment discrimination and laws regulating it thus go to the heart of employer-employee relations. See Kleinfeld dissent at 804 & n. 37. But this is not a satisfactory answer: If sexual harassment suits are to fall within the First Amendment exception to Title VII, it must be because of the presence or absence of First Amendment concerns, see Fletcher concurrence at 790-91, not because of the body of law of their conception or what name they are baptized under. And this functional analysis is concerned not with mere effects on employment or supervision of employees, but with entanglement in internal church management. The risk of ongoing government involvement in internal processes is clear and substantial when the government interferes with actual hiring and firing, which is why Elvig cannot sue to get her job back or for wrongful termination damages. But letting Elvig recover damages for harassment does not regulate employment directly; at most, it may have a collateral effect on employment by changing the employer’s incentives to retain or remove the accused employee. As such, damages suits by employees for sexual harassment are no more intrusive than parishioners’ negligent supervision lawsuits based on molestation by priests. See Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 968 & n. 12 (9th Cir.2004). Nor are they any more intrusive than run-of-the-mill intra-church lawsuits arising out of, say, on-the-job personal injuries.
Judge Kleinfeld offers a second rationale for extending the ministerial exception to lawsuits such as Elvig’s: Such suits “regulate relationships among ministers” by targeting “water cooler talk” and other “mostly verbal” conduct which, in a church, “is probably about prayer and religious doctrine, just as among lawyers it is about law.” Kleinfeld dissent at 803. This argument holds no water either because the ministerial exception is both too broad and too narrow to remedy the problem Judge Kleinfeld envisions.
As it happens, Elvig is claiming that her harasser was another minister, but that’s merely incidental. The ministerial exception applies, if at all, based on the plaintiffs status as a minister; the status of the accused harasser is irrelevant, so long as his actions can somehow be imputed to the church. See, e.g., Bollard, 196 F.3d at 945 (“The ministerial exception to Title VII ‘precludes civil courts from adjudicating employment discrimination suits by ministers against the church or religious institution employing them.’ ” (quoting EEOC v. Catholic Univ. of Am., 83 F.3d 455, 461 (D.C.Cir.1996))). The harasser could be a fellow minister, a non-ministerial church employee, a lay member of the church’s board of governors or even a member of the congregation. See Folkerson v. Circus Circus Enters., 107 F.3d 754, 756 (9th Cir.1997) (“[A]n employer may be held liable for sexual harassment on the part of a private individual ... [if it] ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the con
For much the same reason, Judge Klein-feld’s justification is too narrow to support the rule he proposes. Judge Kleinfeld fears that the risk of liability will cause churches to “squelch[ ]” ministers who preach male supremacy or condemn “certain marital or sexual conduct ... in the hearing of a female associate pastor.” Kleinfeld dissent at 805. Yet female pastors are not the only ones who could be offended: A non-clerical employee, such as a female English teacher at a church-run elementary school, is perhaps even more likely to be offended and feel that “the environment is hostile to her work and denies her equality because of her sex.” Id. at 805. Yet the ministerial exception— which turns on the identity of the accuser, not that of the speaker — would do nothing in that case to protect the church or the minister who preaches such views. Denying Elvig her claim would thus not insulate the preacher or his employer in the long run from the consequences Judge Klein-feld colorfully catalogues in his dissent. The proper way to protect church doctrine and ministers’ speech is not by shoehorning them into a Free Exercise and Establishment Clause exception to workplace discrimination law, but by giving them the full protection of another part of the First Amendment: the Free Speech Clause. See generally Eugene Volokh, Comment, Freedom of Speech and Workplace Harassment, 39 UCLA L.Rev. 1791 (1992).
Even then, I might see some merit in Judge Kleinfeld’s approach if it offered the prospect that courts could avoid all direct entanglement in churchly processes — but it does not, and cannot. Since churches can invoke the ministerial exception only against those “serving the function of ministers,” see Bollard, 196 F.3d at 947, courts applying the exception have to decide at the outset who fulfills a function “important to the spiritual and pastoral mission of the church” and who doesn’t. Roman Catholic Diocese, 213 F.3d at 801 (quoting Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir.1985)) (internal quotation marks omitted). Various cases have properly taken a functional. approach and not insisted that the relevant party be “ordained” or a “minister” before applying the exception. See id. (citing cases involving a lay choir director, a member of a university’s canon law faculty, a non-ordained associate in pastoral care and seminary faculty members). Thus, we routinely have to ask what function is served by altar servers, choirboys, lay ministers, lay deacons, ushers, acolytes and crucifers. Rabbis are clearly, ministerial, but what about the gabbai, the shames, the cook in the synagogue’s kitchen (who may have unorthodox views about whether swordfish -is kosher)? Are mohels to be cut off from the ministerial exception altogether? What of the organizers of traditional Quaker meetings or the Mormon lay clergy? Religions vary drastically in their hierarchical and organizational structure, , and it is often a tricky business to distinguish spiritual from administrative officials and clergy from congregation. The very invocation of the ministerial exception requires us to engage in entanglement with a vengeance. To call the Bol
Where the Bollardr-Elvig approach would simply let Title VII suits like Elvig’s go forward, Judge Kleinfeld’s approach would require continually looking into church affairs to resolve the sensitive question whether a plaintiff is ministerial and therefore subject to the ministerial exception. While the question may be an easy one in Elvig’s case, it may be quite difficult in other cases, as illustrated above. At best, then, Judge Kleinfeld swaps one entanglement for another one.
Thomas Becket himself had a different policy proposal, which could indeed insulate church decisionmaking from all secular interference: Clergymen accused of crimes could be called to account only under the authority of an ecclesiastical court, not the secular authorities. Now that’s a wall. Because we neither can nor wish to go that far, the kind of hermetic separation Judge Kleinfeld and the other dissenters envision is just not possible for religious institutions situated in the midst of our civilization. By practicing religion within our society, churches and their members necessarily undertake some of the burdens along with the benefits of civilized life. This will inevitably distort hiring and firing incentives to some degree, but it is both misguided and futile to seek to avoid all such effects.
The First Amendment does impose certain constraints on the application of general laws to churches, but showing that a class of lawsuits could have been disadvantageous to Thomas Becket isn’t enough. Though I had my doubts about Bollard at the time, I now believe that adopting a broader ministerial exception would cause more problems than it solves. The Bol-lardr-Elvig rule, which leaves the decision whether to hire or fire clergy with the religious institution, but subjects other decisions that may have a collateral effect on employment to the authority of the civil courts, strikes me as entirely workable. It is, in any event, the law we have, and nothing the dissenters say convinces me that we could come up with something better by going en banc.
Dissenting Opinion
dissenting from denial of rehearing en banc:
For the one of every five Americans who live in our circuit’s jurisdiction, the “wall of separation” between church and state now has a gate. The gate is one-way. The government may pass through to regulate the internal affairs of a church, but the church must remain on its own side. If King Henry II had lived in the Ninth Circuit, he would have won his struggle with Thomas Becket, Archbishop of Canterbury, without having to insinuate “Will no one rid me of this turbulent priest?”
Elvig, a Presbyterian minister, brought Title VII sexual harassment and retaliation claims, claiming that a pastor at the church where she was an associate pastor created a hostile environment. The district court dismissed on the pleadings under the “ministerial exception” to Title VII, and we reversed.
The Elvig majority purports to preserve the ministerial exception by saying that churches’ hiring and firing decisions regarding ministers are not subject to Title VII, and that only churches’ supervisory decisions that may subject their ministers
to a hostile work environment are subject to Title VII. This is a false distinction. Churches’ supervision of ministers is as important to church autonomy as churches’ hiring and firing. In any case, to prevent lawsuits alleging sexual harassment, churches will fire ministers who they think expose them to the risk of damage awards and hire those who they think will not. So the Elvig majority’s opinion does indeed impinge on churches’ hiring and firing decisions.
Our crabbed application of the “ministerial exception” furthers an aggressively secularizing trend of the law in the Ninth Circuit
Perhaps our egregious misinterpretation of the law stems in part from the poorly chosen name, the “ministerial exception.” The real exception in Title VII is statutory.
I
In the bitter division of the Presbyterian Church during and after the Civil War, the Supreme Court held in Watson v. Jones
In Watson, the Court was so wary of intruding into religious matters that it held the case under advisement for a year in the hope that the parties would settle it.
In short, the First and Fourteenth Amendments permit hierarchical religious organizations to establish then-own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters. When this choice is exercised and ecclesiastical tribunals are created to decide disputes over the government and direction of subordinate bodies, the Constitution requires that civil courts accept their decisions as binding upon them.15
Milivojevich made it clear that there was no arbitrariness exception to the First
Elvig had vowed “to be governed by ... Church[ ] polity, and to abide by its discipline.”
Pursuant to the Presbyterian Church’s Book of Order and-.Rules of Discipline, the Permanent Judicial Commission of the Presbytery rejected Elvig’s claims. The Rules of Discipline, which Elvig in this civil litigation accuses the church of violating, explain that “Church discipline is the church’s exercise of authority given by Christ ... the purpose of discipline is to honor God by making clear the significance of membership in the body of Christ.”
II
No other circuit has purported to revive the English rule requiring the church to show doctrinal justification for its conduct, no doubt because that rule was expressly rejected by the Supreme Court in Watson.
Our sister circuits that have spoken on the issue have thought it was quite plain before Employment Division v. Smith
The Eleventh Circuit rejected a Title VII retaliation claim by a minister in the Christian Methodist Episcopal Church, based on the Establishment Clause as applied under the Lemon v. Kurtzman
The District of Columbia Circuit in EEOC v. Catholic University of America likewise held that a nun could not sue her
[W]e think it is fair to say that the prospect of future investigations and litigation would inevitably affect to some degree the criteria by which future vacancies in the ecclesiastical faculties would be filled. Having once been deposed, interrogated, and haled into court, members of the Department of Canon Law and of faculty review committees who are responsible for recommending candidates for tenure would do so “with an eye to avoiding litigation or bureaucratic entanglement rather than upon the basis of their own personal and doctrinal assessments of who would best serve ... the needs” of the Department.34
Laws that regulate relationships among ministers curtail a church’s autonomy in the establishment and propagation of its religious doctrines. Sexual harassment claims under Title VII are directed towards conduct, mostly verbal, among employees and between employees and employers. In this case, Elvig claimed in her complaint that a pastor had winked at her, made unwelcome remarks, and “undressed her with his eyes,”
Ill
The First Amendment bestows on churches the right to select, manage, and discipline their clergy free from government control and scrutiny. Our decisions in Bollard and Elvig gravely infringe on that right. Instead of first asking “how
Judge W. Fletcher’s concurrence in the order denying rehearing en banc adds— and adds error — to the opinion it defends. The core of the error is Judge Fletcher’s analogy, that a church must comply with Title VII “just as a church is required to comply with state tort laws when a parishioner is sexually abused by a minister employed by the church.” This is a false analogy. The criminal and civil law applicable to sexual abuse of a parishioner does not regulate a church’s selection, training, and supervision of its own ministers. Judge Fletcher cannot seriously be suggesting that the state tort laws are analogous to Title VII. If so, then on his own terms he would favor a “church doctrine” affirmative defense to sexual abuse suits. To save him from this position, I offer the only tenable distinction to be found: that employment laws like Title VII transgress the constitutionally protected employment relationship between a church and its ministers, while state tort laws do not.
IV
Judge Kozinski accuses me of “shoehorning” church doctrine and ministers’ speech into the Establishment and Free Exercise clauses, as though this were a tight fit. The religion clauses were written as the first two protections of the Bill of Rights to protect freedom of religion. They are not idle chatter, mere mumbling before freedom of speech, the third protection.
The Free Exercise Clause is separate from the Freedom of Speech Clause, and has to be construed for that reason as adding additional protections, not as mere surplusage. Title VII regulation of ministers violates the Free Exercise Clause because people exercise their religious be
Suppose a minister in his daily morning prayer were to thank God for making him a man and not a woman, as. he would in at least one religious tradition. Even his silent prayer might create a hostile environment for a woman such as Elvig, whose complaint addressed a pastor’s state of mind, when he allegedly “undressed her with his eyes.” Or suppose a minister takes the view, as some do, that the Bible requires women to occupy a subordinate position in the family, and that only men should be permitted to preach. If he repeatedly, in his public prayers, asks God to bring about such a world, and repeatedly tells his female associate pastor that the Bible compels these views, she will no doubt sense that the environment is hostile to her work and denies her equality because of her sex. Yet the pastor (and his church) are entitled to the free exercise of religion by spreading this view, which he and perhaps his sect understand to- be God’s word. These opinions and prayers are political heresy. But in matters of religion, churches get to define heresy, not the government.
Pastors will have to be squelched, perhaps by requiring churches to subject them, as so many corporations do, to “workshops” where they will learn what not to say and what not to pray, on pain of church discipline.
V
Title VII regulation of ministers also violates the Establishment Clause. If applied to ministers, it. acts as a law “respecting an establishment of religion”
VI
Usually our Establishment Clause and Free Exercise Clause cases come from the opposite direction, where religious people are attempting to express themselves in public or in the workplace, sometimes under the mantle of the government. But this case is no issue of symbolism, such as whether a creche is diluted enough not to be an endorsement because Santa Claus and a menorah are displayed along with it.
Our churches and their ministers are entitled to be free to propagate their religious views, under our Constitution. The religiosity of our population, compared with Europeans, facilitates the more libertarian government we enjoy. Our government can govern with a light hand partly because we the people are governed by our own strong sense of right and wrong. The religion clauses of the Constitution protect us from strife between sects, and between church and state. They also enable religious people to obtain the satisfaction of living virtuously in compliance with the tenets of their religions. Even those most hostile to one or another sect, or to all sects and to all religion, benefit from the religious freedom we enjoy, because competing power centers prevent the government from exercising a monopoly over the definition of vice and virtue. Our revolution, unlike the French, Mexican, and Russian revolutions, had no anti-clerical animus. Our First Amendment, far from restricting religion as those revolutions did, freed it both from government prohibition of free expression and from government management and preference for competing sects. We should have vindicated that religious freedom in this case.
. Oxford Dictionary of Quotations 332 (4th ed.1992).
. See the Constitutions of Clarendon, 1164, available at http://www.yale.edu/lawweb/aval-on/medieval/constcla.htm, last visited January 24, 2005.
. Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir.2004).
. Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940 (9th Cir.1999).
. Cf. Newdow v. U.S. Congress, 292 F.3d 597, 612 (9th Cir.2002) (holding that the teacher-led recitation of the Pledge of Allegiance including “under God” in public schools is unconstitutional), rev’d sub nom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004).
. See Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir.2003); Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th Cir.2000); Combs v. Cen. Tex. Annual Conference of the United Methodist Church, 173 F.3d 343 (5th Cir.1999); EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C.Cir.1996); Young v. N. Ill. Conference of United Methodist Church, 21 F.3d 184 (7th Cir.1994); Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir.1985).
.The statutory exception to Title VII states “This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” 42 U.S.C. § 2000e-1(a).
. U.S. Const, amend. I.
. Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871).
. Id. at 729.
. Id. at 728.
. Id. at 735.
. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976).
. Id. at 708, 96 S.Ct. 2372.
. Id. at 724-25, 96 S.Ct. 2372.
. Elvig, 375 F.3d at 970 (9th Cir.2004).
. Elvig, 375 F.3d at 973.
. Watson, 80 U.S. at 727-28.
. Elvig, 375 F.3d at 959, 964.
. See Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
. Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).
. See, e.g., McClure v. Salvation Army, 460 F.2d 553, 558-60 (5th Cir.1972).
. See Gellington, 203 F.3d at 1303; Combs, 173 F.3d at 349; Catholic Univ. of Am., 83 F.3d at 462.
. Combs, 173 F.3d at 345 n. 1, 350.
. Id. at 349.
. Id. at 350.
. Young, 21 F.3d at 187.
. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
. Gellington, 203 F.3d at 1304.
. Rayburn, 772 F.2d at 1169.
. Id. at 1171.
. Alicea-Hernandez, 320 F.3d at 703.
. Catholic Univ. of Am., 83 F.3d at 467-68.
. Id. at 467 (quoting Rayburn, 772 F.2d at 1171).
. Elvig, 375 F.3d at 971.
. Cf. Peterson v. Hewlett-Packard Co., 358 F.3d 599 (9th Cir.2004) (Corporation fired an employee for posting Biblical scriptures condemning homosexuality because the corporation viewed the employee's behavior as harassment).
. Judge W. Fletcher attempts to avoid the clear implications of Elvig for the hiring and firing that even he claims is constitutionally protected, by arguing that a “sexual harassment claim ... is not a claim based upon gender or racial inequality in hiring, firing, promotions, or duties.” That is incorrect. A sexual harassment claim under Title VII is indeed precisely what the quoted statement says it is not, a claim of employment discrimination based on sex. Title VII makes it an "unlawful employment practice" to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court construed Title VII to prohibit "sexual harassment” in Meritor Savings Bank, FSB v. Vinson, on the theory that where "discrimination based on sex has created a hostile or abusive work environment,” such a hostile environment "for members of one sex” is a "barrier to sexual equality at the workplace.” 477 U.S. 57, 66-67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (internal quotation and citation omitted). If the Archbishop of Canterbury had killed one of the king's knights, or raped an altar boy, he would have faced trial under a murder or rape law of general applicability. That is not analogous to the case at bar because it has nothing to do with the church’s employment decisions regarding its ministers. If the king had gotten rid of the archbishop by instigating a nun’s claim that his prayers and interpretations of religious doctrine about sin had created a hostile environment for women, that would have been an employment discrimination claim analogous to the case at bar.
. Cf. Peterson, 358 F.3d at 602 (Employee’s posting of Biblical scriptures condemning homosexuality was perceived as violating the employer’s anti-harassment policy).
. U.S. Const, amend. I.
Dissenting Opinion
dissenting from denial of rehearing en banc:
I would have heard this case en banc, and dissent from our denial of such rehearing. As I noted in my concurrence from the original Elvig panel decision, the result in this case seems to be compelled by Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999). There may be room for reasonable jurists to disagree on that, as did Judge Trott in his initial panel dissent, but I think Bollard controlling absent en banc review. At the same time, I continue to have reservations about whether Bollard was correctly decided.
In part my reservations about Bollard stem from constitutional concerns such as those that are raised by Judge Kleinfeld in his able dissent from denial of rehearing en banc. I am not yet certain I would agree with all that he would hold on the constitutional issues, but the issues that Judge Kleinfeld has voiced warrant a broader and a fresh hearing.
In part my reservations about Bollard stem from practical litigation concerns such as those that are raised by Judge Bea in his thoughtful dissent from denial of rehearing en banc, and that were earlier expressed by Judge Trott’s articulate dissent to the initial panel decision. I do not see how a church can take advantage of the affirmative defense established by the Supreme Court’s decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 751-52, 118 S.Ct. 2257, 141 L.Ed.2d 633
In part my reservations about Bollard stem from my dissatisfaction with Bollard’s prior holding that the extent of the so-called “ministerial exception” is defined solely by the scope of the First Amendment’s constitutional protections guaranteeing free exercise of religion and prohibiting government’s entanglement with religion. Bollard, 196 F.3d at 945. Instead, and before reaching the thorny constitutional questions that are set on the table by my colleagues Judges Trott, Kle-infeld and Bea, I would have thought that our en banc court might profitably have pondered whether Congress itself intended a broader sway for the ministerial exception to Title VII, given its statutory basis in 42 U.S.C. Sec. 2000e-1(a) (reciting that the subchapter shall not apply to a religious corporation or association or society with respect to employment of those of a particular religion to perform work connected with the religious entity’s activities).
This statutory exception provides an uncertain scope, but I see no value to discarding it injudiciously in favor of a solely constitutional analysis. If there is ambiguity in the statutory exception’s reach, it ought to be interpreted in a way to avoid a constitutional interpretation.
On these three lines of reasoning, I respectfully dissent.
Dissenting Opinion
dissenting from denial of rehearing en banc:
I heartily agree with Judge Trott that given the Ellerth/Faragher
This “review” might involve the following questions:
Discovery
(1) Are Elvig’s demands for production of records in previous claims of sexual harassment involving Pastor Ackles or other ministers “reasonable” in view of what may be the Church’s doctrinal views that the damage of potential scandal to the community outweighs the benefit such records would have to the individual, Elvig? Was the Church’s resolution of Elvig’s demands reasonable?
Composition of the Investigating Committee
(2) Is an Investigating Committee made up of three women and two men “reasonable” when claims are made of sexual harassment to a female?
(3) If the men on the Committee were in a relatively higher position within the Church hierarchy to that of the women, is it “reasonable” to believe that*808 each member -of the Committee would exercise independent judgment?
Instruction to the Jury
(4) Would the Investigating Committee’s determination of whether the acts of Pastor Ackles constituted sexual harassment based on a “reasonable pastor” standard be “reasonable” in view of the civil legal system’s rule that the proper standard for that determination is that of a “reasonable woman”? See, e.g., Ellison v. Brady, 924 F.2d 872, 878-79 (9th Cir.1991) (holding that in the context of sexual harassment, objective hostility is evaluated from the perspective of a reasonable woman).
... and on and on. Challenges to the “reasonableness” of the Church’s process and decision would be limited only by what limits there are to the ingenuity of counsel and the special pleading of activist organizations urging them on.
This review of what is reasonable would require consideration of what a reasonable employer would have done and would do to prevent the harassment under same or similar circumstances. Would such a review involve evidence of what processes are provided by other similarly situated employers? What evidence would be considered?
Should the jury hear the practices of employers of other Presbyterian ministers? Or should Episcopalian, Methodist and Unitarian practices be considered?
Should the jury consider the Catholic practices for Parish priests, or should practices for specific orders such as Jesuits, Franciscans, Augustinians, Dominicans
In keeping with the secular instruction of the panel opinion, should non-ecclesiastic practices of secular moralist organizations be considered?
With these thoughts in mind, the excellent historical and jurisprudential development contained in Judge Trott’s dissent commends itself to me.
Ellerth/Faragher Burden-Shifting
Ironically, because petitioner brings a claim under Title VII with its court-created affirmative defense and attendant burden-shifting, petitioner’s claim here may well be barred. If plaintiff were to proceed solely on common-law claims, the result might be otherwise.
Under the law of the State of Washington, there is no employer liability for intentional acts of sexual harassment of a victim-employee by another employee, since sexual harassment is deemed to be outside the course and scope of the employee’s duties to his principal. See Robel v. Roundup Corp., 148 Wash.2d 35, 59 P.3d 611, 621, n. 9 (2002).
However, were the acts of sexual harassment by the employee done at the direction of the employer, perhaps for the purpose of driving the victim from the workplace, the intentional act of the employee-agent would be authorized, or perhaps ratified by the employer-principal if the unauthorized harasser were kept in employment, after the employer knew of the employee’s harassing. Such proof would invoke well-settled principles of vicarious liability. See Restatement (Second) Agency, § 219 (authorized action); §§ 86, 89 (ratification).
Elvig retains her common law action against Pastor Ackles for intentional infliction of emotional distress as a result of the alleged sexual harassment, and against the Church if there is evidence of authorization or ratification.
That is because Title VII creates a new duty upon the employer (here, the Church): an affirmative duty to prevent intentional sexual harassment by a fellow employee, if it amounts to discrimination in the workplace, regardless the lack of evidence of authorization or ratification. However, with the imposition of the additional duty upon employers comes the El-lerth/Faragher affirmative defense. For the reasons earlier stated, determining what is a “reasonable employer” in-house process to prevent such discrimination ineluctably requires secular bodies to pass judgment on whether ecclesiastical entities are “reasonable” by standards of secular authorities.
Application of Bollard
I disagree with Judge Trott, however, that Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940 (9th Cir.1999), can be distinguished on the grounds the petitioner in that case was a , novitiate, not a full member, unless the vows Elvig took are to be given the same weight as an agreement to arbitrate outside the federal courts. Elvig, 375 F.3d at 957. I’m afraid that, to me, this is a thin reed. Agreements to arbitrate are always vulnerable to attack in civil courts for being substantively or procedurally unconscionable. See, e.g., Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669, 690 (2000); Schroeder v. Fageol Motors, Inc., 86 Wash.2d 256, 544 P.2d 20, 23 (1975). The arbitration decision is always vulnerable to attack in civil courts account the arbitrator’s corruption. See 9 U.S.C. § 10; Cal. Civ.Code § 1286.2. If one is to separate Church and State, it cannot be on the ground that vows to abide by Church governance are tantamount to an agreement for alternative dispute resolution, for that resolution will always be vulnerable to attack in the civil courts, although perhaps not on the grounds the process and decision were “unreasonable.” That Mr. Bollard had not engaged in an internal-to-the-Church resolution process is also not a
Even if Bollard is not distinguishable, it is wrongly decided, and it is time to revisit this important constitutional issue. For these reasons, and those aptly stated by Judge Kleinfeld with whose dissent I join, I respectfully dissent from our court’s order denying rehearing en banc.
. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751-52, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807-08, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
. If memory serves, these were the original Inquisitors of the Holy Office.
. In his concurrence in the order denying rehearing en banc, Judge W. Fletcher quotes Bollard for the proposition that “Nothing in the character of this [Ellerth ] defense will require a jury to evaluate religious doctrine or the 'reasonableness* of the religious practices followed within the Jesuit order. Instead, the jury must make secular judgments about the nature and severity of the harassment and what measures, if any, were taken by the Jesuits to prevent or correct it." See Elvig v. Calvin Presbyterian Church, No. 02-35805, op. at 793 (W. Fletcher, J., concurring in order denying reh'g en banc); see also Elvig, 375 F.3d at 963 (“[t]he reasonableness component of the Ellerth/Faragher affirmative defense evaluates an employer’s actions in responding to sexual harassment rather than the motivations for that response.” (emphasis in original)). In my view, this distinction is untenable. A jury’s adjudication of the "reasonableness” of a religious institution’s actions in response to a complaint of sexual harassment inevitably requires the jury to adjudicate the “reasonableness” of the religious doctrine that informs the measures taken by the religious institution. The religious institution's actions — or lack thereof — may be compelled by religious doctrine. For instance, a church may have an Employment Complaint Board where claims of sexual harassment can be reported, and dealt with, before they become so serious or frequent as to create a “hostile work environment.” The Board may be composed, according to church hierarchical doctrine, of Bishops who are all male. Under the Panel Majority's Opinion, whether the composition of the panel were "reasonable” to prevent sexual harassment of female employees would be an issue which the secular trier of fact would decide.
Lead Opinion
Concurrence by Judge W. FLETCHER; Concurrence by Judge KOZINSKI; Dissent by Judge KLEINFELD; Dissent by Judge GOULD; Dissent by Judge BEA.
ORDER
Judge Fisher has voted to deny the petition for rehearing en banc, and Judges Trott and Gould have voted to grant the petition for rehearing en banc.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.
The petition for panel rehearing en banc, filed August 4, 2004, is DENIED.
