A rock solid foundation for the wall of separation between church and state in employment decisions concerning clergy.

• Author: Ponzoli, Jr., Ronald P.

Federal courts rely on the "ministerial exception" to preclude subject matter jurisdiction over actions by clergy members against religious organizations for employment decisions concerning the hiring, firing, suspension, and placement of clergy. (1) Though the ministerial exception typically arises in Title VII claims, it has been extended to "any state law cause of action that would otherwise impinge on the church's prerogative to choose its ministers or to exercise its religious beliefs in the context of employing its ministers." Bollard v. The California Province of the Society of Jesus, 196 F.3d 940,950 (9th Cir. 1999). (2)

In spite of the fact that the ministerial exception is a long-established principle of First Amendment law, until the recent opinion of Southeastern Conference Association of Seventh-day Adventists, Inc. v. Pastor Keith A. Dennis, 862 So. 2d 842 (Fla. 4th DCA 2004), Florida's state courts have been limited in their adoption of the exception. In Dennis, the Fourth District Court of Appeal held that courts cannot assume subject matter jurisdiction over employment disputes between a religious organization and its clergy. Id. at 844. With this opinion, the appellate court adopted the principles of the ministerial exception, establishing powerful precedent concerning a religious organization's right to be free from court intervention into matters concerning the employment of clergy.

Evolution and Application of Ministerial Exception in Federal Courts

The First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." This portion of the First Amendment contains two clauses: the Establishment Clause and the Free Exercise Clause. Both clauses serve to prohibit unlawful state interference with religious institutions. The Establishment Clause precludes excessive government entanglement with religion. EEOC v. Catholic University of America, 83 F.3d 455,465 (D.C. Cir. 1996). In application, the "[i]nvestigation by a government entity into a church's employment of its clergy" has been found to violate the Establishment Clause because the investigation "would almost always entail excessive government entanglement into the internal management of the church." Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000).

The Free Exercise Clause prohibits government action that encroaches on "the ability of a church to manage its internal affairs." Catholic University of America, 83 F.3d at 460. This protection precludes government interference with church administration and the appointment of clergy. Id. at 463.

McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972), was the first case to articulate the ministerial exception. (3) In McClure, the complainant was a female minister of the Salvation Army, a church. After being terminated, the minister sued the Salvation Army, alleging discriminatory employment practices in violation of Title VII. Id. at 555. In affirming dismissal of the action for lack of jurisdiction, the appellate court found:

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 internal 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.

Approximately four years after McClure, in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 725 (1976), the U.S. Supreme Court reversed an Illinois Supreme Court finding which had set aside the removal and defrockment of a church bishop. The Illinois Supreme Court found that the removal and defrockment had to be set aside as "arbitrary" because, in the court's opinion, the church proceedings resulting in the removal and defrockment were not conducted according to the church's constitution and penal code. Id. at 708. The Illinois Supreme Court amended its original opinion to hold that, though the bishop had been properly suspended, that suspension terminated by operation of church law when the bishop was not validly tried within one year of his indictment. Id.

In reversing the Illinois Supreme Court's ruling, the U.S. Supreme Court found:

[C]ivil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense "arbitrary" must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly requires the church judicatory to follow, or else in to the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; recognition of such an exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept the ecclesiastical decisions of church tribunals as it finds them.

Id. at 713.

The Supreme Court stated: Indeed, it is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria. Constitutional concepts of due process, involving secular notions of "fundamental fairness" or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance.

Id. at 714-15.

In Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164, 1165 (4th Cir. 1985), the Fourth Circuit Court of Appeals affirmed the district court's finding that a Title VII action against a church by a complainant who had been denied a pastoral position was barred by the religious clauses of the First Amendment. Calling upon the spirit of the Establishment Clause, the Rayburn court reiterated that religious organizations must have "power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Id. at 1167 (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952)). The court went on to state: "The right to choose ministers without government restriction underlies the well-being of religious community, for perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large." Id. at 1167-68 (citation omitted).

The Rayburn court held that the Free Exercise Clause forbids courts from inquiring into whether a religious basis exists for denial of a pastoral position. Id. at 1169. The court stated:

While it is our duty to determine whether the position of associate in pastoral care is important to the spiritual mission of the Seventh-day Adventist Church, we may not then inquire whether the reason for Rayburn's rejection has some explicit grounding in theological belief. Emphasis on the role of an associate in pastoral care rather than the reasons for Rayburn's rejection underscores our constitutional concern for the unfettered right of the church to resolve certain questions. The fact that the Seventh-day Adventist Church does not ordain women, the asserted scriptural basis for that practice, and the influence or lack thereof of this restriction in Rayburn's case do not influence our analysis. In "quintessentially religious" matters, the free exercise clause of the First Amendment protects the act of a decision rather than a motivation behind it. In these sensitive areas, the state may no more require a minimum basis in doctrinal reasoning than it may supervise doctrinal content.

Id. (citation omitted) (quoting Serbian Eastern Orthodox Diocese, 426 U.S. at 720). (4)

Six years later, the Eighth...