Religious Institutions Update: January 2019 - Lex Est Sanctio Sancta

by Holland & Knight LLP

Holland & Knight LLP

Courts continue to grapple with the scope and meaning of the ministerial exception doctrine. In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012), the U.S. Supreme Court confirmed that a ministerial exception doctrine grounded in the First Amendment precludes application of certain anti-discrimination laws to claims concerning the employment relationship between a religious institution and its ministers. In that case, the plaintiff was a kindergarten teacher who was appointed as a "called" teacher by a member congregation of the Lutheran Church-Missouri Synod. After she became ill with narcolepsy and had to go on disability leave, then threatened legal action, the church rescinded her call and terminated her. The U.S. Equal Employment Opportunity Commission (EEOC) brought suit on her behalf for violation of the Americans with Disabilities Act (ADA). The U.S. Supreme Court determined that were the state to impose an unwanted minister on the congregation through enforcement of the ADA, the state would 1) infringe the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission and 2) violate the Establishment Clause, which prohibits government involvement in ecclesiastical decisions. But what if the plaintiff sued over an alleged hostile work environment or sexual harassment while she was an employee of a religious organization, rather than for so-called tangible employment action such as hiring or firing?

The U.S. District Court for the Northern District of Illinois concludes, as discussed in more detail below, that the ministerial exception doctrine does not apply to a hostile work environment claim but that the Religion Clauses may still preclude the suit if it requires entanglement with religion. The district court ruled that this would be the case under Title VII, in the event the litigation pertained to the employee's sex, sexual orientation or marital status, but not a hostile-work environment ADA claim. Religious institutions should take notice that the nature of the purported discrimination matters, as does the nature of the plaintiff's role and responsibilities. The Supreme Court identified several relevant considerations when deciding whether an employee is a minister subject to the doctrine, such as 1) the formal title given to the employee by the church, 2) the substance reflected in that title, 3) her own use of that title and 4) the important religious functions she performed. When the factors point in mixed directions, as discussed in more detail below, the Ninth Circuit ruled the doctrine inapplicable, whereas the U.S. District Court for the District of South Carolina applied the doctrine based, most importantly, on the notice to the employee of ministry responsibilities contained in her employment agreement. The dissent in the Ninth Circuit also considered the language of the employment agreement and handbook key. Religious institutions are wise to have church-state counsel review these documents to maximize legal protection.

Key Cases

Elementary School Teacher States ADA Claim Against Catholic School

In Biel v. St. James School, No. 17-55180, 2018 WL 6597221 (9th Cir. Dec. 17, 2018), the court of appeals reversed summary judgment granted in favor of the defendant against a former elementary school teacher who alleged violation of the ADA against a Catholic school when it did not renew her contract for the next academic year after she told her employer that she had breast cancer and would need to miss work to undergo chemotherapy. The court determined that the ministerial exception doctrine did not prevent her claim. Applying Hosanna-Tabor, the court determined that the school did not hold out the plaintiff as a minister and that she did not hold herself out as such or claim ministerial benefits. The court also concluded that the plaintiff's title, "Grade 5 Teacher," did not reflect ministerial substance or training and that the school had no religious requirements for the plaintiff's position. The school required her to attend a one-day conference at the Los Angeles Religious Education Congress, covering methods of incorporating God into lessons. The court determined that the "religious substance was limited." The court conceded that the plaintiff had religious functions such as teaching a 30-minute religion class four days per week, but determined that they were not important enough to apply the ministerial exception doctrine. The plaintiff taught religion from a book required by the school, entitled Coming to God's Life, and incorporated religious themes into her other lessons. The plaintiff did not teach, lead or plan devotions but gave students the opportunity to lead twice-daily prayers and joined in. She accompanied students to monthly Mass and made sure they were quiet and sitting in their seats, but she had no other responsibilities in religious services. The court concluded that, although the First Amendment insulates a religious organization's selection of those who will personify its beliefs, it "does not provide carte blanche to disregard antidiscrimination laws when it comes to other employees who do not serve a leadership role in the faith."

D. Michael Fisher, a Third Circuit Judge sitting by designation, dissented, pointing out that the plaintiff taught and tested students in her religion class about the Catholic sacraments, the lives of Catholic saints, Catholic prayers, Catholic social teaching, Gospel stories and church holidays. The plaintiff was expected to incorporate Catholic teachings even in secular classes. The dissent was also impressed that the plaintiff signed an employment contract, which indicated that she understood the school's mission was "to develop and promote a Catholic School Faith Community within the philosophy of Catholic education" and mandated that she, inter alia, model, teach and promote behavior in conformity to the teaching of the Roman Catholic Church. Likewise, the faculty handbook included "basic values" for the faculty such as "[t]o personally demonstrate our belief in God ... to actively take part in worship-centered school events." It incorporated a "Code of Ethics for Professional Educators in Catholic Schools," indicating that the success of Catholic education, an important mission of the church, depends upon the teacher and detailed commitments that Catholic school teachers were to make, such as modeling the faith life and exemplifying the teachings of Jesus Christ. The handbook required staff to guide the spiritual formation of the student and to integrate Catholic thought and principles into secular subjects.

Minister's Hostile Work Environment Claim Survives

In Demkovich v. St. Andrew the Apostle Parish, No. 1:16-cv-11576, 2018 WL 4699767 (N.D. Ill. Sept. 30, 2018), the district court ruled that the Title VII hostile work environment claim of a former parish minister, the "Music Director, Choir Director and Organist," who entered into a same-sex marriage, was not barred by the ministerial exception doctrine because it did not challenge a tangible employment action and did not pose excessive entanglement with the religious employer, but was barred under the First Amendment's Religion Clauses. The court distinguished Hosanna-Tabor as pertaining to an employer's decision to hire and fire ministers and, thus, determine who will minister to the faithful, as opposed to whether a church may harass one of its own. Although the ministerial exception doctrine did not apply, the court ruled that litigation over the alleged harassment based on the former employee's sex, sexual orientation and marital status would excessively entangle government in religion, and, thus, the employee's Title VII hostile work environment claims were barred under the First Amendment's Religion Clauses. The archdiocese offered a religious justification for the employee's supervisor's alleged derogatory remarks and other harassment regarding the employee's same-sex marriage, i.e., that they reflected the supervisor's opposition, in accord with Catholic doctrine, to same-sex marriage. Litigation would put the archdiocese in the position of having to affirmatively introduce evidence of its religious justification. In addition, the archdiocese could seek to prove an affirmative defense, namely that it took reasonable care to prevent or to correct harassment and that the employee failed to take advantage of the archdiocese's preventive or corrective efforts, which would require examination of its employment practices, including on preventing sexual-orientation discrimination. In contrast, the court determined that the former employee's ADA hostile work environment claims were not barred under the Religion Clauses and that the employee sufficiently stated a hostile work environment claim under the ADA. The plaintiff's hostile-work environment ADA claim, alleging that his supervisor harassed him because of his diabetes and a metabolic syndrome, did not pose any risk of religious entanglement. The archdiocese did not offer a religious justification based on church doctrine or defense for the supervisor's harassment.

Ministerial Exception Doctrine Barred Faculty Member's Title VII Claims Against University

In Lishu Yin v. Columbia Int'l Univ., No.: 3:15-cv-03656-JMC, 2018 WL 4691194 (D.S.C. Sept. 30, 2018), the district court granted the defendant's motion for summary judgment and denied the plaintiff's motion based on the ministerial exception doctrine. The plaintiff, a former faculty member, sued her former employer for violation of Title VII by discriminating and retaliating against her on the basis of race, sex and national origin, arising from her termination that occurred as a result of the university's financial difficulties. The court first determined that the university was a religious group under the First Amendment's ministerial exception. The university trained Christians for global missions, full-time vocational Christian ministry and marketplace ministry, and as part of its mission educated people from a biblical world view. The court then ruled that the faculty member qualified as a minister covered by the ministerial exception. On the one hand, two of the Hosanna-Tabor factors weighed in favor of applying the ministerial exception: the substance of the plaintiff's title and the religious functions performed by the plaintiff. The plaintiff required her students to pray, prayed with her students, led students during chapels, integrated biblical materials into her courses and prepared students for ministry roles. On the other hand, two of the factors weighed against the ministerial exception, the plaintiff's formal title (i.e., TEFL-ESL instructor and the Director of the TESOL Program) and her use of that title. She did not hold herself out as a minister. Reviewing the totality of factors, the court determined that it was still proper to bar the plaintiff's claims under the ministerial exception doctrine. The court considered it most important that, based upon her job description, the plaintiff had notice of possible ministry responsibilities and knowingly decided to undertake them.

School District Can Exclude Private School from Transportation Funding

In St. Augustine School v. Evers, 906 F.3d 591 (7th Cir. 2018), the court of appeals affirmed summary judgment against the plaintiffs who sued the school district and superintendent alleging constitutional violations because of its refusal to provide school transportation or equivalent cash benefits. Wisconsin law requires school districts to bus private-school students, Wis. Stat. §121.54, but that obligation extends only to one private school "affiliated with the same religious denomination" within each geographic attendance area, Wis. Stat. §121.51. In an effort to avoid an unconstitutional interpretation of this limitation, the Wisconsin Supreme Court construed Section 121.51 to reach any two private schools "affiliated or operated by a single sponsoring group, whether ... secular or religious." The plaintiffs self-identified as Catholic. The school district was already providing transportation benefits to another Catholic school in the catchment zone. The plaintiffs, including the school and parents whose children attended the school, argued that the defendants violated the Free Exercise Clause by depriving them of a public benefit on account of their religion. The court rejected this on the grounds that the statute, as interpreted, is a facially neutral and generally applicable law that deprives all private schools – religious and secular alike – of receiving a subsidy already claimed by another school affiliated with the same group or organization. The plaintiffs also claimed that the defendants' application of the statute violated the Establishment Clause by entangling the state actors with religious doctrine and belief when they categorized the school as Catholic. The court decided that this claim lacked support in the record, which shows that the school, rather than the state, defined itself as Catholic. The court added that, in reality, the school's approach, not the state's, required entanglement with religion by expecting officials to look beyond its self-designation. Without deciding the question, the court guessed in response to the plaintiffs' and the dissent's "parade of horribles," that the statute would not prevent different denominations within the same tradition; e.g., Lutherans of the Missouri Synods versus the Evangelical Lutheran Church in America, from qualifying separately for funding. Judge Kenneth Francis Ripple dissented, asking if this is possible, why are the plaintiffs foreclosed from arguing that they are governed by a separate entity than the archdiocese, for example, based on the school's articles of incorporation? He also considered the ruling at odds with the U.S. Supreme Court's recent reaffirmation in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012 (2017), that "denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion" and with the protection of "freedom to act" in Cantwell v. Connecticut, 310 U.S. 296 (1940), not merely the "freedom to believe."

Interim Final Rules for Contraceptive Coverage Exemption Enjoined

In California v. Azar, No. 18-15144, 18-15166, 18-15255, 2018 WL 6566752 (9th Cir. 2018), the court of appeals affirmed in part and vacated in part the district court's grant of a nationwide preliminary injunction against the secretaries of the U.S. Departments of Health and Human Services (HHS), Labor and Treasury, alleging that two interim final rules (IFRs) exempting certain entitieswith religious and moral objections from the Affordable Care Act's (ACA) mandate to employers to provide contraceptive coverage were invalid under the Administrative Procedure Act (APA). Exempt organizations include entities with sincerely held religious beliefs objecting to contraceptive or sterilization coverage, "additional entities and persons that object based on sincerely held moral convictions" and organizations with "sincerely held moral convictions concerning contraceptive coverage." The court of appeals first determined that the case is not moot, despite the agencies publishing final versions of the exemptions to become effective on Jan. 14, 2019. There was an interim period during which the interim rules were still applicable. Next, the court ruled that the venue was proper despite the defendants' argument that the state "resides" exclusively in the Eastern District of California, where the state capital is located. According to the court, the state resides at every district within its borders. The court also ruled that the states had standing to file the lawsuit. On the merits, the court of appeals determined that the secretaries lacked good cause to forgo notice and comment required under the APA prior to promulgating IFRs; the district court did not abuse its discretion by determining that states were likely to suffer irreparable procedural harm in the absence of a preliminary injunction; and the district court did not abuse its discretion by determining that the balance of equities and public interests weighed in favor of entry of preliminary injunction. However, the court of appeals ruled that the district court abused its discretion by issuing a nationwide preliminary injunction; therefore, the court of appeals vacated that portion of the injunction barring enforcement of rules in non-plaintiff states and remanded the case. Judge Andrew Kleinfeld dissented on the grounds that the plaintiffs lacked standing because their harm was "self-inflicted." Whereas the exemption imposes no obligation on the states to provide money for contraception, the narrowing of the federal mandate meant that the plaintiff states that chose to provide contraception benefits to employees of the employers exempted by the federal insurance requirement would spend more. According to Judge Kleinfeld, this was self-inflicted harm. The majority rejected the relevance of this limitation on standing except when state laws directly and explicitly tie the states' finances to another sovereign's laws.

School District's Campaign Against Islamophobia and Anti-Muslim Bullying Constitutional

In Citizens for Quality Education San Diego v. Barrera, 333 F.Supp.3d 1003 (S.D. Cal. 2018), the district court denied the plaintiffs' motion for preliminary injunction against several district board members, alleging that an initiative and "action steps" to address Islamophobia and anti-Muslim bullying were a mere pretext to establish the district's preference for Islam and Muslim students, in violation of the First and Fourteenth Amendments, California's state constitution and various state statutory provisions. The plaintiffs, who were the parents of students in the school district, lacked taxpayer standing because they did not allege specific tax dollar appropriations spent solely on the challenged conduct. But the parents established standing to seek preliminary injunction where one parent averred that her child had direct contact with a Muslim civil rights organization's book, which was available for checkout in the school library; other parents averred that they were "spiritually affronted" by the defendants' conduct, which had chilled their participation in school district activities, and another parent averred that the defendants' conduct would cause her to remove her child from the school district. The plaintiffs also included two organizations, ruled to lack standing for lack of evidence that either suffered any harmful diversion of resources frustrating its mission or that any member had standing to sue in his own right. The defendants argued that the case was moot based on its revised policy, but the court disagreed because the revised policy indicated that addressing Islamophobia and anti-Muslim bullying remained district objectives, and, although the revised policy clarified the district's intention not to single out a particular religion and redirected staff from forming a formal partnership with any Muslim civil rights organization, it did not sever the district's ties with the organization nor prevent organizations from addressing Islamophobia in the district.The court also disagreed that, under the Lemon test, the parents showed an Establishment Clause violation. The school district had a valid, compelling interest in preventing anti-Muslim bullying and Islamophobia to which the initiative and action steps were narrowly tailored. The court also ruled that the reasonable observer would not conclude that the initiative was an endorsement of religion or had the primary effect of advancing religion and that the initiative did not result in excessive entanglement with religion because there was no formal partnership between the district and a Muslim civil rights organization. In addition, the initiative was consistent with California's No Preference Clause (Cal. Const. Art. I, S. 4) and Blaine Amendment or No Aid Clause (Cal. Const. Art. I, S. 5). The court ruled that no separate analysis of the No Preference Clause was needed in that government action permissible under the Establishment Clause necessarily passes muster under it. With respect to the Blaine Amendment, the court determined there was no evidence that the state was providing any financial benefit to a sectarian organization or under the direction of one. The purchase of books relating to the initiative involved exclusively a permissible incidental benefit. Furthermore, any non-financial, intangible benefit that the school district's initiative and "action steps" provided Muslim students was available on an equal basis to all students and, thus, was consistent with the Blaine Amendment, where the district's instructional materials addressed all major world religions. Finally, the court ruled that the parents failed to show irreparable harm or that the balance of hardships and public interest favored preliminary injunction.

Federal Grant Funding Neutrally Benefiting Religious Organizations Constitutional

In Am. Civil Liberties Union of N. California v. Azar, No. 16-cv-03539-LB, 2018 WL 4945321 (N.D.Cal. 2018), the court denied the plaintiff's motion for summary judgment and granted the defendants' cross-motion for summary judgment in connection with the plaintiff's argument that grant funding neutrally available to nonreligious and religious organizations associated with two government programs violates the Establishment Clause. The Unaccompanied Alien Children Program provides services to undocumented minors who arrive in the U.S. without being accompanied by a parent or guardian, and the Trafficking Victim Assistance Program provides services to victims of human trafficking. The court determined that the government's grant relationships and interactions with religious organizations such as the U.S. Conference of Catholic Bishops had a secular purpose, did not have a principal or primary effect of advancing religion and did not foster an excessive entanglement with religion. The plaintiff admitted that the programs' secular purpose and the mere fact that a religiously affiliated organization such as the Conference of Catholic Bishops receives government grants, without more, does not have the primary effect of advancing religion. But the plaintiff argued that the government endorsed the Conference of Catholic Bishops' religious views when it entered into grant agreements with the organization despite its opposition to abortion. The court disagreed and said, if anything, the government acted opposite to the organization's religious beliefs when it transferred unaccompanied minors to shelters that arranged for abortion. There was no evidence that the government delegated to the Conference of Catholic Bishops the health services that would be available to unaccompanied minors because of the services available from alternative grantees. Nor was there evidence that any unaccompanied minor or trafficking victim who wanted an abortion or contraception during the time period relevant to the case was unable to obtain them. Some minors who sought an abortion were transferred to another grantee because the Conference of Catholic Bishops and its subcontractors shared a religious objection to providing abortion or contraception, but there was no evidence that they were disadvantaged by this. Nor was there evidence that any grant funding was used for any religious purpose. No unaccompanied minor was a party to the case, and the plaintiff, which brought the claims solely in its capacity as a taxpayer, could not base its claim on putative harms that it did not bear itself. Last, the court determined that grant monitoring does not amount to excessive entanglement with religion.

Religious Institutions in the News

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JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

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