Jaziri: Fixing A Crack in The Wall of Separation

JAZIRIFINAL_719752.
DOC(DONOTDELETE) 4/27/20118:27:48AM
FixingaCrackintheWallof
Separation:WhytheReligionClauses
PrecludeAdjudicationofSexual
HarassmentClaimsBroughtbyMinisters
RYANW.JAZIRI

ABSTRACT
Title VII of the Civil Rights Act of 1964 was designed to eradicate
discriminationinAmericanworkplaces.In1972,courtsbeganrecognizing
theministerialexceptiontoTitleVII,whichgivesreligiousorganizations
theabsoluteconstitutionalrightbasedonthereligionclausesoftheFirst
Amendmentto choose their ministers. Several cases have allowed Title
VII sexual harassment lawsuits to proceed without the ministerial
exception precluding their adjudication. These cases reason that since
churches usually will not offer a religious justification for sexual
harassment,allowingaTitleVIIsexualharassmentsuittoproceedwould
notinfringeontheirFirstAmendmentrights.
This Note argues that sexual harassment claims brought by ministers
againstreligiousorganizationsunderTitleVIIshouldbebarredunderthe
ministerial exception. Sexual harassment claims involve extensive inquiry
into church governance. Since secular authorities are constitutionally
prohibited from adjudicating matters pertaining to church polity,
ministerialsexualharassmentclaimsshouldbeprecluded.Also,requiring
a church to articulate a religious justification for internal disciplinary
mattersrelatedtoministerialemploymentrunscountertoSupremeCourt
precedent interpreting the First Amendment. Finally, imposing a
reasonableness standard on religious action in response to sexual
harassment claims entangles courts with religious decisionmaking
processesinviolationoftheEstablishmentClause.

Candidate for Juris Doctor, New England School of Law (2011). B.A., Political Science,
cumlaude,NewEnglandCollege(2008).Iwouldliketothankmyparents,ZsuzsannaPapp
andWalidJaziri,andmygirlfriend,MalloryBrown,fortheirunconditionalloveandsupport.
719
JAZIRIFINAL_719752.DOC(DONOTDELETE) 4/27/20118:27:48AM
720 NewEnglandLawReview v.45|719
INTRODUCTION
I esteem it above all things necessary to distinguish exactly the

businessofcivilgovernmentfromthatofreligion,andtosettlethejust
boundsthatliebetweentheoneandtheother.
JohnLocke1
ThelegalremediesIhaveproposedaretheembodimentofthisNations
basicpostureofcommonsenseandcommonjustice.Theyinvolveevery
Americans right... to get a job and to be served in a public place
without arbitrary discrimination[a] right[] which most Americans
takeforgranted.
John F. Kennedy, in a message accompanying a civil
rightsbilltoCongressin19632
I
n1989,St.JohnsLutheranChurch(St.Johns),alocalcongregationof
the Evangelical Lutheran Church of America (ELCA), hired Susan
Blackasanassociatepastor.3Shortlythereafter,Blackclaimedthather
supervising pastor, William Snyder, repeatedly made unwelcome sexual
advances toward her.4 Snyder allegedly referred to the two of them as
lovers,physicallytouchedBlackinasexualmanner,andinsistedonher
companionship outside of work.5 St. Johns and the ELCA investigated
Blacks complaint; thereafter, Black was discharged.6 She sued St. Johns,
the ELCA, and Snyder for sexual harassment and four other causes of
action.7ThecourtheldthatbecauseBlackssexualharassmentclaim[did]
not involve scrutiny of church doctrine, interference in matters of an
inherently ecclesiastical nature, or infringe upon the churchs religious
practice,Blackcouldbringherclaimagainstthechurch.8
Religious freedom has been a cornerstone of American society ever
since the founding of our nation.9 The first sixteen words of the First
1JOHNLOCKE,TREATISEOFCIVILGOVERNMENTANDALETTERCONCERNINGTOLERATION171
(CharlesL.Shermaned.,IrvingtonPublishers1979)(1689).
2SpecialMessagetotheCongressonCivilRightsandJobOpportunities,1PUB.PAPERS482,
493(June19,1963).
3Blackv.Snyder,471N.W.2d715,717(Minn.Ct.App.1991).
4Id.
5Id.at71718.
6Id.at718.
7Id. The other causes of action were retaliation, breach of contract, defamation, and
wrongfultermination.Id.
8Id.at721.
9SeeRICHARDLABUNSKI,JAMESMADISONANDTHESTRUGGLEFORTHEBILLOFRIGHTS22324
(2006) (Madison considered the amendment related to religious freedom to be among the
most important. He had devoted much of his public life to fighting against religious
2011 Fixing a Crack in the Wall of Separation 721
AmendmenttotheUnitedStatesConstitutionprovidethatCongressshall
makenolawrespectinganestablishmentofreligion,orprohibitingthefree
exercise thereof.10 This sentence can be broken down into two clauses
the Establishment Clause and the Free Exercise Clause.11 While the two
religion clauses are interrelated in their purposes, they each reflect
independent constitutional protections: prohibiting an establishment of
religion while guaranteeing the free exercise of religion.12 In this sense,
[t]hefirstclauseprohibits;thesecondclauseprotects.13
Congress passed the Civil Rights Act of 1964 in an effort to eradicate
discrimination in the United States.14 Title VII of the Act was designed to
eradicatediscriminationintheworkplaceandtoensureequalaccesstothe
workforce.15In1972,courtsbeganrecognizingaministerialexceptionto
Title VII, which holds that religious organizations have the constitutional
rightbased on the religion clauses of the First Amendmentto choose
their clergy.16 Most religions place restrictions on clergy membership that
wouldnotbelawfulinsecularemploymentsettings.17Since[t]heminister
is the chief instrument by which the church seeks to fulfill its purpose,
matters that deal with a ministers employment are left strictly to the
church.18
A string of cases has allowed Title VII sexual harassment lawsuits to
proceed without the ministerial exception precluding their adjudication.19
This Note argues that sexual harassment claims brought by ministers20
establishmentsandforthefreeexerciseofconscience.).
10U.S.CONST.amend.I.
11DEREK H. DAVIS, RELIGION AND THE CONTINENTAL CONGRESS 17741789: CONTRIBUTIONS
TOORIGINALINTENT9(2000).
12Id.
13Id.
14William S. Stickman, IV, Comment, An Exercise in Futility: Does the Inquiry Required to
ApplytheMinisterialExceptiontoTitleVIIDefeatItsPurpose?,43DUQ.L.REV.285,286(2005).
15Id. By enacting Title VII, Congress clearly targeted the elimination of all forms of
discrimination as a highest priority. EEOC v. Pac. Press Publg Assn, 676 F.2d 1272, 1280
(9thCir.1982).
16MARCIA.HAMILTON,GODVS.THEGAVEL:RELIGIONANDTHERULEOFLAW189(2005).
17Id.at190.Forexample,Catholicshaveonlymalepriests;someconservativeChristiansdo
notallowdivorcedorunwedwomeninthepulpit;OrthodoxJewsonlypermitmentobecome
rabbis;andmanyreligionsdonotallowhomosexualstoholdclergypositions.Id.
18SeeMcClurev.SalvationArmy,460F.2d553,559(5thCir.1972).
19See infra Part I.D.2. See generally Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 953
(9th Cir. 2004) (allowing an ordained Presbyterian minister to bring a sexual harassment
claim); Bollard v. Cal. Province of the Socy of Jesus, 196 F.3d 940, 94850 (9th Cir. 1999)
(allowinganovice,whowastrainingtobecomeapriest,tobringasexualharassmentclaim).
20FortheremainderofthisNote,thetermministerwillbeusedtodescribeanychurch
employee whose job functions are sufficiently spiritual so as to warrant invocation of the
against religious organizations under Title VII should be barred by the

ministerial exception because of the governmental intrusion on the
establishmentandfreeexerciseofreligionthatwouldotherwiseresult.21
PartIprovidesanoverviewofthestatutoryandcaselawthathasled
tothecreationoftheministerialexception.Thispartdiscussesthetension
between Title VII and the First Amendment, as well as the scope and
application of the exception.22 Part I also examines the problem that has
ariseninsexualharassmentclaimsbroughtbyministersagainstchurches.
PartIIanalyzessexualharassmentclaimsinthecontextofministerial
employment and argues that civil courts should not adjudicate these
claims. Sexual harassment claims, although arguably secular in nature,
involve extensive inquiry into religious governance.23 Since secular
authorities are constitutionally prohibited from adjudicating matters
pertaining to church polity,24 sexual harassment claims should be
precluded by the religionclauses of the First Amendment.25 Furthermore,
requiring a church to articulate a religious justification for internal
disciplinary matters related to employment and imposing a
reasonableness standard on religious action in response to sexual
harassment claims run counter to the First Amendment.26 Lastly, Part III
discussesthepolicyconcernsandlimitationsoftheministerialexception.
ministerialexceptiontotheirclaim.SeeinfraPartI.C(discussingtheprimarydutiestest
thetestusedtodeterminewhoqualifiesasaministerwithintheexception).
21SeeinfraPartII.
22SeeinfraPartI.
23SeeinfraPartII.AB.
24Churchpolityreferstotheparticularsystemofchurchgovernmentuponwhichchurch
membershaveagreed,includingthestructuralallocationofauthoritywithinthechurchand
the established grievance procedures for resolving internal disputes. Arlin M. Adams &
William R. Hanlon, Jones v. Wolf: Church Autonomy and the Religion Clauses of the First
Amendment,128U.PA.L.REV.1291,1292n.5(1980).
25SeeinfraPartII.AB.
26SeeinfraPartII.C.
I. TheMinisterialException
A. TheBirthoftheMinisterialExceptiontoTitleVII27
Title VII of the Civil Rights Act of 1964 makes it unlawful, in the
context of employment practice, to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of
employment, because of such individuals race, color, religion, sex, or
national origin.28 Title VII also makes it unlawful for an employer to
limit,segregate,orclassifyhisemployeesorapplicantsforemploymentin
any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an
employee,becauseofsuchindividualsrace,color,religion,sex,ornational
origin.29
Inthecontextofreligiousentities,30TitleVIIallowsexemptionfromits
nondiscrimination mandate to the extent that an employment decision is
based on an individuals religious preferences.31 However, Title VII does
27While the focus of this Note is on Title VII as related to the First Amendment, it is
important to note that the ministerial exception does not only apply to Title VII claims.
Bollardv.Cal.ProvinceoftheSocyofJesus,196F.3d940,950(9thCir.1999)(Justasthereis
aministerialexceptiontoTitleVII,theremustalsobeaministerialexceptiontoanystatelaw
cause of action that would otherwise impinge on the churchs prerogative to choose its
ministersortoexerciseitsreligiousbeliefsinthecontextofemployingitsministers.);seealso
Gregory A. Kalscheur, Civil Procedure and the Establishment Clause: Exploring the Ministerial
Exception,SubjectMatterJurisdiction,andtheFreedomoftheChurch,17WM. & MARY BILL RTS. J.
43, 49 (2008) (The exception has been applied to bar claims under . . . the Americans with
Disabilities Act, the Age Discrimination in Employment Act, as well as state common law
claims.(footnotesomitted)).
2842U.S.C.2000e2(a)(1)(2006).
29Id.2000e2(a)(2).
30There has not been a clear consensus among courts regarding the characteristics of a
qualifying religious institution. Joshua D. Dunlap, Note, When Big Brother Plays God: The
Religion Clauses, Title VII, and the Ministerial Exception, 82 NOTRE DAME L. REV. 2005, 2010
(2007).However,severalgeneralruleshavebeenusedinmakingthisdetermination:first,the
institution itself does not have to be a church in order to qualify; second, an institution that
actsastheinstrumentofachurchcanqualify;andthird,aninstitutionthatfulfillsareligious
functioncanqualifyevenifitdoesnotcarryoutreligiousactivities.Seeid.at2011.Inaddition
to obvious places of worship such as churches, examples of religious organizations that fall
within the purview of the ministerial exception include religious schools, universities,
hospitals,andretirementhomes.CarolineMalaCorbin,AbovetheLaw?TheConstitutionalityof
the Ministerial Exemption from Antidiscrimination Law, 75 FORDHAM L. REV. 1965, 1977 (2007).
FortheremainderofthisNote,thetermsreligiousorganizationandchurchwillbeused
interchangeably.
31See 42 U.S.C. 2000e2(e); see also Petruska v. Gannon Univ., 462 F.3d 294, 303 (3d Cir.
2006).
notallowreligiousorganizationstomakethosesamedecisionsonthebasis
of race, sex, or national origin.32 Therefore, a strict reading of Title VII
would not allow a religious organization to discriminate against an
employeeforanyreasonotherthanreligiouspreferences.33
However, while Title VII prohibits the abovementioned forms of
discrimination in the context of religious employment, the First
Amendment provides that Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.34 The
Fourth Circuit has succinctly described the problem that has thus arisen:
[t]ensionshavedevelopedbetweenourcardinalConstitutionalprinciples
of freedom of religion, on the one hand, and our national attempt to
eradicateallformsofdiscrimination,ontheother.35Thejudiciallycreated
ministerialexception36toTitleVIIistheresultofthistension.37
FirstarticulatedbytheFifthCircuitinMcClurev.SalvationArmy,38the
ministerialexception,atitsmostbasicunderstanding,providesthatclaims
made by ministers against their employersreligious organizationsare
barredunderthereligionclausesoftheFirstAmendment.39InMcClure,an
ordainedministerbroughtasexdiscriminationclaimagainsttheSalvation
Army;sheallegedthatshereceivedalowersalaryandfewerbenefitsthan
similarly situated male ministers.40 The minister further alleged that she
had been fired due to her complaints about the discrimination to her
32Rayburn v. Gen. Conference of SeventhDay Adventists, 772 F.2d 1164, 1166 (4th Cir.
1985) (The language and the legislative history of Title VII both indicate that the statute
exemptsreligiousinstitutionsonlytoanarrowextent.).
33See McClure v. Salvation Army, 460 F.2d 553, 558 (5th Cir. 1972). The version that was
reported out of the House Judiciary Committee provided religious organizations with a
blanketexemption,whichread:Thistitleshallnotapplytoanemployerwithrespectto...a
religiouscorporation,association,orsociety.H.R. REP. NO. 88914,at2010(1963).Thisbroad
exemptionwaslimitedbytheSenate,resultinginthecurrentlanguageofTitleVII.McClure,
460 F.2d at 558. The language Congress ultimately chose shows its intent to eradicate
discriminatory employment actions by religious organizations in areas not pertaining to
religious preference. Jessica R. Vartanian, Note, Confessions of the Church: Discriminatory
PracticesByReligiousEmployersandJustificationsforaMoreNarrowMinisterialException,40U.
TOL.L.REV.1049,1056(2009).
34U.S.CONST.amend.I.
35Rayburn,772F.2dat1167.
36Some commentators have expressed concern over the doctrines misleading name since
its application is not predicated on clergy membership. See, e.g., Vartanian, supra note 33, at
1059.SeeinfraPartI.Cforadiscussiononwhoqualifiesasaministerundertheexception.
37See Janet S. BelcoveShalin, Ministerial Exception and Title VII Claims: Case Law Grid
Analysis,2NEV.L.J.86,86(2002).
38460F.2d553(5thCir.1972).
39Seeid.at55861.
40Id.at555.
superiorsandtheEqualEmploymentOpportunityCommission.41
Instead of defending the merits of the claim, the Salvation Army
movedtodismiss42theministersclaim,arguingthatsubjectingthechurch
to this type of adjudication would violate the religion clauses of the First
Amendment.43 In sustaining the motion to dismiss, the court stated that
[t]he relationship between an organized church and its ministers is its
lifeblood.Theministeristhechiefinstrumentbywhichthechurchseeksto
fulfill its purpose. Matters touching this relationship must necessarily be
recognized as of prime ecclesiastical concern.44 Using Supreme Court
precedentinterpretingtheFreeExerciseClause45toguideitsreasoning,the
FifthCircuitheldthatCongress,throughtheenactmentofTitleVII,didnot
intend to regulate the employment relationship between church and
minister.46 Thus, an exception to Title VII was born, prohibiting judicial
inquiryintomattersaffectingemploymentdecisionsofministers.47
Eachfederalcircuitcourtofappeals,exceptfortheFederalCircuit,has
adopted the ministerial exception.48 However, the Supreme Court has not
41Id.
42When asserting the ministerial exception as a defense to a Title VII dispute, an issue
arises as to whether such a defense should be classified as a subjectmatter jurisdiction

defenseorasachallengetothelegalsufficiencyoftheplaintiffs claim.SeeKalscheur,supra
note 27, at 6970. The prevailing view is to characterize the defense as one of subjectmatter
jurisdiction; however, some courts have concluded that the ministerial exception defense
shouldbecharacterizedasachallengetothelegalsufficiencyoftheplaintiffsclaim.Seeid.at
52,69.
43McClure,460F.2dat556.
44Id.at55859.
45SeeinfraPartI.B.1.
46McClure, 460 F.2d at 56061 ([T]here exists a spirit of freedom for religious
organizations, an independence from secular control or manipulation, in short, power to

decide for themselves, free from state interference, matters of church government as well as
those of faith and doctrine. (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116
(1952))).
47Seeid.Therehasbeencritiqueoftheministerialexceptionsconfusingname,asitisnot
reallyanexceptionatall;rather,itisalimitationonTitleVIIimposedbytheConstitution.
Elvigv.CalvinPresbyterianChurch,397F.3d790,800(9thCir.2005)(Kleinfeld,J.,dissenting
intheorderdenyingrehearingenbanc).
48ToddCole,Note,TheMinisterialException:ResolvingtheConflictBetweenTitleVIIandthe
FirstAmendment,4CHARLESTONL.REV.703,707(2010);seeRweyemamuv.Cote,520F.3d198,
20406 (2d Cir. 2008); Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 22526 (6th Cir.
2007); Petruska v. Gannon Univ., 462 F.3d 294, 30304 (3d Cir. 2006); Bryce v. Episcopal
Churchin the DioceseofColo.,289F.3d648,65667(10thCir.2002);Gellingtonv. Christian
Methodist Episcopal Church, Inc., 203 F.3d 1299, 130304 (11th Cir. 2000); Bollard v. Cal.
ProvinceoftheSocyofJesus,196F.3d940,94647(9thCir.1999);EEOCv.CatholicUniv.of
Am., 83 F.3d 455, 463 (D.C. Cir. 1996); Young v. N. Ill. Conference of United Methodist
Church, 21 F.3d 184, 18586 (7th Cir. 1994); Scharon v. St. Lukes Episcopal Presbyterian
granted certiorari on the issue of whether the ministerial exception is

required by the First Amendment.49 Therefore, lower courts continue to
struggleinapplyingtheexceptionconsistently.50
B. FirstAmendmentJustificationfortheMinisterialException
Most courts applying the ministerial exception to Title VII disputes

rely on the Free Exercise Clause, the Establishment Clause, or some
combination of the two in finding the exception applicable.51 Both
rationaleshavebeenessentialtothecreationandcontinuedvalidityofthe
ministerial exception; therefore, the subtle distinctions between the Free
ExerciseClauseandtheEstablishmentClauserationalesmustbedissected
inordertocomprehendtheconstitutionalmagnitudeoftheexception.52
1. FreeExerciseClauseRationale
The premise behind the Free Exercise Clause, as recognized by the

Supreme Court, is to guarantee that religious organizations have the
power to decide for themselves, free from state interference, matters of
church government as well as those of faith and doctrine.53 Civil courts
areboundtoacceptthedecisionsofthehighestjudicatoriesofreligious
organizations on matters pertaining to faith, internal organization,
Hosps.,929F.2d360,36163(8thCir.1991);Natalv.Christian&MissionaryAlliance,878F.2d
1575,157677(1stCir.1989);Rayburnv.Gen.ConferenceofSeventhDayAdventists,772F.2d
1164,116768(4thCir.1985);McClure,460F.2dat56061.
49Corbin, supra note 30, at 1968 (The ministerial exemption is a creation of the lower
courts and has never been blessed (or rejected) by the Supreme Court.); see also Combs v.
Cent. Tex. Annual Conference of the United Methodist Church, 173 F.3d 343, 347 (5th Cir.
1999)(AlthoughtheSupremeCourtitselfhasneveradoptedthe[ministerial]exception,itis
thelawofthiscircuitandmuchoftherestofthecountry.).
50SeeinfraPartI.D.
51Corbin,supranote30,at1969;see,e.g.,Combs,173F.3dat34551(relyingexclusivelyon
theFreeExerciseClausetojustifyinvocationoftheministerialexception);Scharon,929F.2dat
36163(relyingprimarilyontheEstablishmentClauseinprohibitinganordainedpriestssuit
fromproceeding);Rayburn,772F.2dat116772(relyingonboththeFreeExerciseClauseand
theEstablishmentClauseinbarringsuitbyplaintiffwhowasdeniedapastoralposition).
52See
Bruce N. Bagni, Discrimination in the Name of the Lord: A Critical Evaluation of
Discrimination by Religious Organizations, 79 COLUM. L. REV. 1514,1515 (1979) (The issues of
accommodating religious beliefs and the proper relationship between the freeexercise and
establishment clauses are squarely presented when religious organizations claim exemption
fromantidiscriminationlaws.).
53Kedroffv. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952). Issues regarding the Free
ExerciseClauseasappliedtoindividuals,ratherthanreligiousorganizations,arenotthefocus
ofthisNote.
ecclesiastical rule, custom, law, and discipline.54 Thus, government

attemptstorestrictachurchschoiceofitsleaderburdensthefreeexercise
ofreligion.55
To determine whether a statute violates the Free Exercise Clause,
courtsweighthreefactors:
(1)themagnitudeofthestatutesimpactupontheexerciseofthe
religious belief, (2) the existence of a compelling state interest
justifyingtheburdenimposedupontheexerciseofthereligious
belief, and (3) the extent to which recognition of an exemption
from the statute would impede the objectives sought to be
advancedbythestate.56
InthemajorityofcourtdecisionsapplyingtheministerialexceptiontoTitle
VII, courts have concluded that the governments interest in eliminating
employment discrimination is never compelling enough to impede a
religious organizations right to selfgovernance, especially regarding
ministerialpositions.57
Additionally, the conclusions a court might reach in deciding a claim
made by a minister are not of primary concern with regard to the Free
ExerciseClause;rather,itistheveryprocessofinquiryleadingtofindings
andconclusionsthatmayimpingeonfreeexerciserights.58Oneconcernis
that secular authoritiessuch as the federal governmentwould be
involved in the evaluation or interpretation of religious doctrine.59 A
second concern, independent from the first, is that in investigating
employment discrimination claims by ministers against their church,
secular authorities wouldnecessarily intrude intochurch governance ina
manner that would be inherently coercive, even if the alleged discrimination
werepurelynondoctrinal.60
In 1990, the Supreme Court decided Employment Division v. Smith,61
which involved two men who were fired from their positions at a drug
54SerbianE.OrthodoxDiocesev.Milivojevich,426U.S.696,713(1976).
56EEOCv.Miss.Coll.,626F.2d477,488(5thCir.1980);seealsoSherbertv.Verner,374U.S.
398,40307(1963).
57Vartanian,supranote33,at1053.
58SeeTomicv.CatholicDioceseofPeoria,442F.3d1036,103839(7thCir.2006).
59See, e.g., Combs v. Cent. Tex. Annual Conference of the United Methodist Church, 173
F.3d343,350(5thCir.1999).
60Id. (emphasis added). In concluding that this concern is enough to prohibit civil courts
from adjudicating a ministers claim, the Fifth Circuit held: We cannot conceive how the
federaljudiciarycoulddeterminewhetheranemploymentdecisionconcerningaministerwas
basedonlegitimateorillegitimategroundswithoutinsertingourselvesintoarealmwherethe
Constitutionforbidsustotread,theinternalmanagementofachurch.Id.
61494U.S.872(1990).
rehabilitation center because they ingested peyote for sacramental

purposes at their Native American church.62 Since the men were fired for
workrelatedmisconduct,theyweredeniedunemploymentbenefitsbythe
State.63 The men argued that the denial of benefits was unconstitutional
because the law substantially burdened their religious practices and the
state had no compelling interest in forbidding peyote use for religious
purposes.64
Insteadofreachingthecompellinginteresttest,theCourtjettisonedit
andheldthattheFreeExerciseClausedidnotexemptconductmotivated
byreligionfromneutrallawsofgeneralapplicability.65However,Smithhas
had no effect on the ministerial exception because Smith concerned the
rights of individuals, not religious organizations.66 Because the Free
ExerciseClauseofferstwotypesofreligiousprotectionindividualrights
and religious organization rightsand Smith only addressed the
protections given to individuals, the ministerial exception survived the
decision.67
2. EstablishmentClauseRationale
TheSupremeCourthasheldthat,inordertowithstandscrutinyunder
the Establishment Clause, a statute must first have a secular legislative
purpose; second, its principal or primary effect must be one that neither
advances nor inhibits religion... ; finally, the statute must not foster an
excessivegovernmententanglementwithreligion.68Ifastatutefailsany
62Id.at874.
63Id.
64Corbin,supranote30,at1983.
65Smith,494U.S.at879;seeCorbin,supranote30,at1983.
66Gellingtonv. ChristianMethodistEpiscopalChurch,Inc.,203F.3d1299,1303(11thCir.
2000)(TheSmithdecisionfocusedon...infringementonanindividualsabilitytoobserve
the practices of his or her religion. . . . [I]nterference with a churchs ability to select and
manageitsownclergy...wasnotatissueinSmith.).
67Commentators have disagreed as to whether the Free Exercise Clause justification has
changed in light of Smith. Compare Corbin, supra note 30, at 19822004 (arguing that the free
exercise justification is suspect in light of Smith), with Note, The Ministerial Exception to Title
VII: The Case for a Deferential Primary Duties Test, 121 HARV. L. REV. 1776, 178183 (2008)
[hereinafterDeferentialPrimaryDutiesTest](arguingthatcourtdecisionssubsequenttoSmith
have rightly concluded that Smith neither undermines nor precludes the ministerial
exception).
68Lemon v. Kurtzman, 403 U.S. 602, 61213 (1971) (citations omitted). This test has been
heavily critiqued; however, it remains the standard for Establishment Clause jurisprudence.
See,e.g.,LambsChapelv.Ctr.MorichesUnionFreeSch.Dist.,508U.S.384,398(1993)(Scalia,
J., concurring) (Like some ghoul in a latenight horror movie that repeatedly sits up in its
grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our
one of the three factors, it is deemed unconstitutional.69 Title VII clearly

meetsthefirsttwoprongsofthetest;70however,courtsscrutinizeTitleVII
claims with regard to the excessive government entanglement that
wouldresultiftheclaimwereadjudicated.71[E]ntanglementismeasured
bythecharacterandpurposesoftheinstitutionaffected,thenatureofthe
benefit or burden imposed, and the resulting relationship between the
governmentandthereligiousauthority.72Althoughentanglementisa
vague term,73 it can be divided into two subpartssubstantive
entanglementandproceduralentanglement.74
The substantive dimension of entanglement is implicated if the
churchs freedom to choose its ministers is at stake.75 The right of a
religiousinstitutiontodecidewhichministerstohireorfireisattheheart
of the organizations spiritual practice.76 Therefore, [i]nvestigation by a
governmententityintoachurchsemploymentofitsclergywouldalmost
always entail excessive government entanglement into the internal
managementofthechurch.77
Further,substantiveentanglementoccurswhenacourtmustresolvea
disputebydeterminingorevaluatingreligiousdoctrine.78Theguidanceof
thestatecannotsubstituteforreligiousdecisionmaking,asacourtroom
EstablishmentClausejurisprudenceonceagain....).
69Blackv.Snyder,471N.W.2d715,722(Minn.Ct.App.1991)(Randall,J.,dissenting).
70Rayburnv.Gen.ConferenceofSeventhDayAdventists,772F.2d1164,1170n.6(4thCir.
1985); see also Katherine Bell, Note, The Ministerial Exception: Rethinking the Third Circuits
Approach to Ministerial Discrimination, 46 U. LOUISVILLE L. REV. 753, 759 (2008) (Title VII
satisfiesthefirstandsecondprongoftheLemontestbecauseTitleVIIhasasecularpurposeof
eliminatingdiscriminationanditsprimaryeffectdoesnotadvancenorinhibitreligion.).
71See,e.g.,Rayburn,772F.2dat116970.
72Id.at1170(quotingLemon,403U.S.at615).[T]hedangerofinteractionbetweenchurch
andstateiswhattheestablishmentclauseprotectsagainst.Id.(citationsomitted).
73DouglasLaycock,TowardsaGeneralTheoryoftheReligionClauses:TheCaseofChurchLabor
Relations and the Right to Church Autonomy, 81 COLUM. L. REV. 1373, 1392 (1981)
(Entanglement is such a blurred, indistinct, and variable term that it is useless as an
analytic tool. Sometimes it seems to mean contact, or the opposite of separation . . . .
Sometimes it seems to mean anything that might violate the religion clauses. (footnotes
omitted)).
74Corbin,supranote30,at1979.
75Bollardv.Cal.ProvinceoftheSocyofJesus,196F.3d940,949(9thCir.1999).
76Seeid.Additionally,[t]heministerialexceptiondoesnotapplysolelytothehiringand
firingofministers,butalsorelatestothebroaderrelationshipbetweenanorganizedreligious
institution and its clergy, termed the lifeblood of the religious institution. Werft v. Desert
Sw.AnnualConferenceofUnitedMethodistChurch,377F.3d1099,1103(9thCir.2004).
77Gellingtonv. ChristianMethodistEpiscopalChurch,Inc.,203F.3d1299,1304(11thCir.
2000).
78Bell,supranote70,at759.
isnottheplacetoreviewachurchsdeterminationofthoseappointedinto
ministerial positions.79 This principle applies even if a churchs selection
results from preferences that would be impermissible in the secular
sphere.80 For example, a church is allowed the discretion to prohibit the
ordination of women.81 Conversely, even when the government and a
particular church endorse the same goal, the church has the right to
autonomyinthepursuitofthatgoal.82
Theproceduraldimensionofentanglementisimplicatedwhenthereis
a protracted legal process pitting church and state as adversaries.83 In
preventing procedural entanglement with religion, the Establishment
Clause seeks to protect churches from the process of inquiry leading to
judicial conclusions, rather than simply the conclusions reached from
adjudication.84 The fear is that church personnel and religious documents
wouldbecomesubjecttoavarietyoflegalprocessesincludingsubpoena,
discovery, and crossexaminationthat would effectively probe the
churchsmindregardingtheselectionofitsministers.85
C. ThePrimaryDutiesTest86
Inorderforalawsuittobeprecludedundertheministerialexception,
the plaintiff must be deemed a minister.87 The ministerial exception is
not, in any circuit, expressly limited to claims brought by ordained
ministers.88 Thus, when determining whether an employee should be
79Rayburn v. Gen. Conference of SeventhDay Adventists, 772 F.2d 1164, 1170 (4th Cir.
1985).
80Id.at117071.
81Seeid.at1171n.9.
82Id.at1171(quotingLaycock,supranote73,at1399).
83Elvigv.CalvinPresbyterianChurch,375F.3d951,957(9thCir.2004)(quotingBollardv.
Cal.ProvinceoftheSocyofJesus,196F.3d940,949(9thCir.1999)).
84Rayburn, 772 F.2d at 1171 (It is not only the conclusions that may be reached by the
Boardwhichmayinfringe[sic]ontherightsguaranteedbytheReligionClauses,butalsothe
very process of inquiry leading to findings and conclusions. (quoting NLRB v. Catholic
BishopofChi.,440U.S.490,502(1979))).
85Id.
86Thistestisalsocommonlyknownastheministerialfunctiontest.SeeVartanian,supra
note33,at1059;seealsoEEOCv.CatholicUniv.ofAm.,83F.3d455,461(D.C.Cir.1996).
87See Rayburn, 772 F.2d at 1168. In contrast, lay employees who are not serving the
functionofministersdonotfallwithintheexception.SeeBollard,196F.3dat947.
88See, e.g., AliceaHernandez v. Catholic Bishop of Chi., 320 F.3d 698, 703 (7th Cir. 2003)
(Indeterminingwhetheranemployeeisconsideredaministerforthepurposesofapplying
this exception, we do not look to ordination but instead to the function of the position.);
Catholic Univ. of Am., 83 F.3d at 461 (The ministerial exception has not been limited to
membersoftheclergy.);Rayburn,772F.2dat1168(Thefactthatanassociateinpastoralcare
considered a minister, courts consider the function of the employees

position.89 The employees primary duties are examined by the court,90
andthecourtdecideswhetherthepositionissufficientlyimportanttothe
spiritualmissionofthechurch.91
Generally, if an employees primary duties consist of teaching,
spreadingthefaith,churchgovernance,supervisionofareligiousorder,or
supervision or participation in religious ritual and worship, he or she
should be considered clergy.92 Employees deemed ministers under
the exception have included: a press secretary for a Catholic Church;93 a
principal of a Catholic elementary school;94 and a choir director for a
Methodist church.95 To illustrate, consider a receptionist working for a
church; if she simply assists callers and performs purely administrative
tasks,shewouldnotbeconsideredaminister.96Ontheotherhand,ifshe
distributesdoctrinallyrelatedliteratureandexplainsthechurchsreligious
mission,shewould,inalllikelihood,beaministerwithintheexception.97
D. TheCircuitSplitRegardingtheScopeoftheException
There is variation among the circuits as to the precise scope of the

exception.98 There are essentially two schools of thought with regard to
whentheexceptionshouldapplythetraditionalapproach,whichbarsall
claimsmadebythoseinministerialpositions,99andtheminorityapproach,
which allows ministers to bring claims against churches when the claims
areunrelatedtoreligiousdoctrine.100
canneverbeanordainedministerinherchurchis...immaterial.).
89AliceaHernandez, 320 F.3d at 703; see also EEOC v. Roman Catholic Diocese of Raleigh,
213F.3d795,801(4thCir.2000)(Ourinquirythusfocusesonthefunctionofthepositionat
issueandnotoncategoricalnotionsofwhoisorisnotaminister.).
90For an argument that the primary duties test itself raises the same First Amendment
concernsthatmotivatetheexistenceoftheministerialexception,thusentitlingmoredeference
to religious organizations in their classifications of ministerial employees, see Deferential
PrimaryDutiesTest,supranote67,at178693.
92Id.(quotingBagni,supranote52,at1545).
93AliceaHernandez,320F.3dat70304(Theroleofthepresssecretaryiscriticalinmessage
dissemination,andachurchsmessage,ofcourse,isofsingularimportance.).
94Parduev.Ctr.CityConsortiumSchs.oftheArchdioceseofWash.,Inc.,875A.2d669,670
71(D.C.Cir.2005).
95Starkmanv.Evans,198F.3d173,174(5thCir.1999).
96SeeBagni,supranote52,at154445.
97Id.at1545.
98Dunlap,supranote30,at200910.
99See,e.g.,Tomicv.CatholicDioceseofPeoria,442F.3d1036,1037(7thCir.2006).
100See,e.g.,Bollardv.Cal.ProvinceoftheSocyofJesus,196F.3d940,94650(9thCir.1999)
1. TheTwoApproaches
Thetraditionalapproachtotheapplicationoftheministerialexception
has been to preclude all Title VII lawsuits brought by ministers against
churches.101 Sometimes referred to as a blanket exception,102 this
approachrequiresthedismissalofanysuitwheretheprimarydutiestestis
met.103 The nature of a plaintiffs claim is therefore irrelevant; the
ministerial exception applies without regard to the type of claim[] being
brought....Toruleotherwisewouldenmeshthecourtinendlessinquiries
as to whether each discriminatory act was based in Church doctrine or
simplysecularanimus.104
Recently, several courts have employed a different approach in
determining whether Title VII suits brought by ministers can proceed
irrespective of the ministerial exception.105 Instead of simply invoking the
primary duties test and precluding suit if the plaintiffs job functions are
sufficiently spiritual, this approach considers the nature of the plaintiffs
claimaswell.106Hence,iftheministersTitleVIIsuithasnobearingonthe
spiritualactivitiesofthereligiousorganizationi.e.,iftheclaimisentirely
secularthese courts reason that the plaintiffs suit may proceed without
violatingthereligionclausesoftheFirstAmendment.107
(allowing sexual harassment lawsuit to proceed because of the secular nature of the claim);
Black v. Snyder, 471 N.W.2d 715, 721 (Minn. Ct. App. 1991) ([Since plaintiffs] sexual
harassment claim does not involve scrutiny of church doctrine, interfere in matters of an
inherently ecclesiastical nature, or infringe upon the churchs religious practice, [the claim
mayproceed].).
101SeeBell,supranote70,at762.
102Seeid.
103SeeVartanian,supranote33,at1059.
104AliceaHernandezv.CatholicBishopofChi.,320F.3d698,703(7thCir.2003).Thecourt
wentontostate:ItisthereforenotourroletodeterminewhethertheChurchhadasecularor
religiousreasonfortheallegedmistreatmentof[theplaintiff].Theonlyquestionisthatofthe
appropriatecharacterizationofherposition.Id.(emphasisadded).
106See,e.g.,Bollardv.Cal.ProvinceoftheSocyofJesus,196F.3d940,94647(9thCir.1999)
(determiningthattheministerialexceptionshouldnotapplyinaTitleVIIsexualharassment
suit and stating that the scope of the ministerial exception to Title VII is limited to what is
necessarytocomplywiththeFirstAmendment).
107SeeRweyemamuv.Cote,520F.3d198,208(2dCir.2008)(Whileweagreethatcourts
shouldconsiderthefunctionofanemployee,ratherthanhistitleorthefactofhisordination,
westillfindthisapproachtoorigidasitfailstoconsiderthenatureofthedispute.(citations
omitted)).
2. TheNatureoftheClaimApplicationintheContextof
SexualHarassmentLawsuits
Sexual harassment lawsuits108 brought by ministers against their

employers have been surprisingly successful in recent years.109 In effect,
sexual harassment claims have been recognized as an exception to the
ministerial exception since, according to certain lower court decisions,
theycanbeadjudicatedwithoutviolatingtheFirstAmendmentprinciples
underlying the exception.110 However, only one federal circuit court has
held that sexual harassment claims are not precluded by the First
Amendment,111 whichisatodds with the reasoningusedin othercircuits
thathaveappliedtheministerialexception.112
108Sexual harassment is considered a form of discrimination under Title VII because it
interferes with an employees terms and conditions of employment. Rhonda Reaves,

Retaliatory Harassment: Sex and the Hostile Coworker as the Enforcer of Workplace Norms, 2007
MICH. ST. L. REV.403,415.Subjecting[employees]...tohostileoroffensiveenvironmentsis
every bit the arbitrary barrier to equality as discrimination is in the hiring or firing of
workers.Id.(quotingHensenv.CityofDundee,682F.2d897,902(11thCir.1982)).
109See BelcoveShalin, supra note 37, at 123 ([S]exual harassment is clearly [a] claim . . .
wherereligiousinstitutionsemployeeshavethebestchancetoupholdtheirrightsunderTitle
VII.).
110Seeid.at126.
111See Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 960 n.4 (9th Cir. 2004) (Bollard
remains the only federal appellate court decision to have discussed this question.). See
generally Bollard, 196 F.3d 940. Although only one federal circuit court has adopted this
position,severallowercourtshaveexpressedsimilarreasoninginanalogouscases.See,e.g.,
Dolquistv.HeartlandPresbytery,342F.Supp.2d996,1007(D.Kan.2004)(BasedonElvig,
Bollard, McKelvey, and Black, the Court finds that the First Amendment does not preclude
plaintifffromstatingaclaimforsexualharassment.);Blackv.Snyder,471N.W.2d715,720
21 (Minn. Ct. App. 1991) (Blacks sexual harassment claim is unrelated to pastoral
qualificationsorissuesofchurchdoctrine.Becauseshedoesnotseekreinstatementbutonly
monetarydamages,anyprospectiveremedywouldnotrequireextensivecourtoversight....
We hold, therefore, that the first amendment does not bar Black from litigating her sexual
harassment claim.); McKelvey v. Pierce, 800 A.2d 840, 85758 (N.J. 2002) (The First
Amendment is not violated so long as resolution of a claim does not require the court to
choose between competing interpretations of religious tenets or to interfere with a churchs
autonomyrights.).
112Elvigv.CalvinPresbyterianChurch,397F.3d790,799&n.6(9thCir.2005)(Kleinfeld,J.,
dissenting in the order denying rehearing en banc); see, e.g., Tomic v. Catholic Diocese of
Peoria,442F.3d1036,1037(7thCir.2006)(Federalcourtsaresecularagencies.Theytherefore
do not exercise jurisdiction over the internal affairs of religious organizations.); Alicea
Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 703 (7th Cir. 2003) (The ministerial
exceptionapplieswithoutregardtothetypeofclaimsbeingbrought.).
a. Bollardv.CaliforniaProvinceoftheSocietyof
Jesus113
InBollard,thefirstcircuitcourtdecisiontoallowasexualharassment
suit brought by a minister to proceed, a novicewho was training to
become a priest114alleged that he was sexually harassed by his
superiors.115 He claimed that his supervisors sent him pornographic
material, made unwelcome sexual advances, and engaged him in
inappropriateandunwelcomesexualdiscussions.116Theplaintiffreported
the conduct to his employer; however, no action was taken to stop the
harassment.117 As a result of the harassment, the plaintiff was forced to
leavetheJesuitorderbeforetakingvowstobecomeapriest.118Hefiledsuit
infederalcourtallegingsexualharassmentinviolationofTitleVII.119The
districtcourtfoundthattheministerialexceptionwasapplicableandheld
theplaintiffsclaiminvalidunderTitleVII.120
Onappeal,theNinthCircuitreversed,holdingthattheplaintiffssuit
could proceed because it would not infringe on the churchs First
Amendment protections.121 The court found that the Free Exercise Clause
rationalesupportingtheministerialexceptionwasmissing,as[t]heJesuits
do not offer a religious justification for the harassment Bollard alleges;
indeed,theycondemnitasinconsistentwiththeirvaluesandbeliefs.122As
aresult,[t]hereis...nodangerthat,byallowingthissuittoproceed,we
willthrustthesecularcourtsintotheconstitutionallyuntenablepositionof
passingjudgmentonquestionsofreligiousfaithordoctrine.123Moreover,
the court noted that since this was not a case concerning the churchs
ability to choose its own representative,124 the concerns inherent in the
113196F.3d940(9thCir.1999).
114Theplaintiffbegantheprocessofformation,duringwhichmentrainandstudytobe
ordainedandthereforewasclassifiedasaministerwithintheexception.Id.at944.
115Id.
116Id.
117Id.
118Id.
119Bollard,196F.3dat944.
120Id.at950.Thecourtdismissedtheplaintiffsclaimforlackofsubjectmatterjurisdiction
under Federal Rule of Civil Procedure 12(b)(1). Id. at 944. The district court held that it was
not persuaded that Title VII sexual harassment claims are less likely than Title VII hiring
andfiringclaimstoleadtoencroachmentonachurchsreligiousfunctions.Bollardv.Cal.
Province of the Socy of Jesus, No. C 973006 SI, 1998 WL 273011, at *4 (N.D. Cal. May 15,
1998).
121Bollard,196F.3dat94850;seealsoVartanian,supranote33,at1064.
123Id.
124Inotherwords,thecourtheldthatthisclaimdidnotinvolvetheselectionofaminister
ministerialexceptionwerenotpresent.125
The court also analyzed entanglement concerns under the
EstablishmentClause.126Substantiveentanglementwasnotatissuefortwo
reasons: the state was not evaluating competing religious doctrines, and
thechurchsconstitutionalrighttohireorfireitsministerswasnotbeing
infringed upon.127 Regarding procedural entanglement, the court stated:
we believe that the potential for protracted government surveillance of
church activities poses the gravest concern under the Establishment
Clause.128However,sincetheissuewassimplywhethertheplaintiffwas
subjectedtosexualharassmentbyhissuperiorsthatwassufficientlysevere
to be actionable under Title VII,129 the court held that there was no
proceduralentanglement.130Itstated:
The Jesuit order may assert as an affirmative defense that it
exercisedreasonablecaretoprevent...theharassment....This
isarestrictedinquiry.Nothinginthecharacterofthisdefensewill
require a jury to evaluate religious doctrine or the
reasonableness of the religious practices followed within the
Jesuitorder.131
The court also noted that since the plaintiff sought damages as his sole
remedyanddidnotseekreinstatementoranyotherequitablerelief,there
waslessofachanceofongoingmonitoringofchurchactivities.132
Although the threejudge panel decision was unanimous, a vote was
taken to determine whether the case should be reheard en banc.133 A
majority of the active judges failed to vote for an en banc rehearing;134
however,inanopinionwrittenbyJudgeWardlaw,fourjusticesdissented
or the functions accompanying such a selection, such as a ministers salary, place of

assignment,orduty.Cf.McClurev.SalvationArmy,460F.2d553,559(5thCir.1972).
126Seeid.at94850.
127Id.at94849.
128Id.at949.
129Seeinfranotes14852andaccompanyingtext.
131Id.(emphasisadded).
132Id.at950.
133Bollardv.Cal.ProvinceoftheSocyofJesus,211F.3d1331,1331(9thCir.2000)(order
denyingenbancrehearing).Frenchforonthebench,enbancisdefinedas[w]ithalljudges
present and participating. BLACKS LAW DICTIONARY 606 (9th ed. 2009). Under the Federal
Rules of Appellate Procedure, en banc hearings are not favored and usually will not be
ordered unless they are necessary to maintain uniformity of the courts decisions or the
proceedinginvolvesaquestionofexceptionalimportance.SeeFED.R.APP.P.35(a).
fromthedenial.135Thedissentersarguedthat[t]hepanelopinionnarrows
theministerialexceptionnearlytothepointofextinctionbyallowingthe
plaintiffa novice studying for ordinationto maintain his Title VII
sexual harassment claim.136 Judge Wardlaw vehemently opposed the
panelsmisapplicationofSupremeCourtprecedentanddisregardforother
circuit court jurisprudence regarding the ministerial exception.137 Since
resolution of the plaintiffs claim would require a court to delve into
religiousmattersoutsideofthejudiciarysprovincesuchasthechurchs
disciplinary and supervisory decisions, whether the plaintiff would have
otherwisebeenordained,andtheextenttowhichtheplaintiffwouldhave
been made whole from loss of a life of spiritual servicethe decision
portends serious consequences for one of the bedrock principles of our
countrysformationreligiousfreedom.138
b. Elvigv.CalvinPresbyterianChurch139
Five years after Bollard, the Ninth Circuit decided Elvig, which
followed Bollards reasoning and allowed an ordained Presbyterian
minister to bring a sexual harassment claim against her employer.140
Monica Elvig served as the Associate Pastor of the Calvin Presbyterian
Church, where she suffered sexual harassment and intimidating conduct
by the Churchs Pastor.141 After Elvig made a formal complaint to the
church,thePastorretaliatedagainstherbyrelievingherofcertainduties,
verballyabusingher,andengaginginotherintimidatingbehavior.142Elvig
filedacomplaintinfederaldistrictcourt,andherclaimwasdismissed.143
Inreversingtherulingofthedistrictcourt,theNinthCircuitheldthat
Elvigs sexual harassment claim could proceed.144 The court analyzed
Bollardandothercircuitcourtholdingsregardingtheministerialexception
135Id.(Wardlaw,J.,dissenting).
136Id.
137Seeid.([T]hepanelopinionunderminesoveracenturyofSupremeCourtjurisprudence
[and] runs contrary to every other United States Court of Appeals that has had occasion to
visit the issue ....). See infra Part II.A for the Supreme Court authority acknowledging
churchautonomyinmatterspertainingreligiousgovernment.
138Bollard,211F.3dat133233(Wardlaw,J.,dissenting).
139375F.3d951(9thCir.2004).
140Id.at953(ElvigsTitleVIIsuitcanprovideherwithredressforsexualharassmentand
retaliation without attaching liability to ministerial employment decisions protected by the

FirstAmendment.).
141Id.
142Id.at954.
143Id.
144Seeid.at969.
andstatedthattotheextentElvigsclaimsnecessarilyinvolveaninquiry
into the Churchs decision to terminate her ministry, those claims cannot
proceed in civil court and were properly dismissed.145 However, Elvig
may,consistentwiththeFirstAmendment,attempttoshowthatshewas
sexually harassed and that this harassment created a hostile work
environment. This showing would, after all, involve a purely secular
inquiry.146
The court relied on Bollard for the proposition that, since the
Presbyterian Church did not offer a religious justification for the sexual
harassment, there would be no scrutiny of church doctrine.147 The
frameworkforassessinganemployersliability,whereaplaintiffcanshow
that she was subjected to a hostile work environment,148 is based on two
alternative theories.149 First, an employer can be vicariously liable for a
hostile work environment if a tangible employment action results.150
Second,whentherehasbeennotangibleemploymentaction,anemployer
may raise an affirmative defense to liability or damages.151 To
successfullyassertanaffirmativedefense,anemployermustsatisfyatwo
pronginquiry:(1)thattheemployerexercisedreasonablecaretoprevent
and correct promptly the harassment; and (2) that the plaintiff
unreasonablyfailedtousepreventiveorcorrectiveopportunitiesprovided
bytheemployer.152
145Elvig,375F.3dat958.
146Id.at959(citationsomitted).
147Id.
148Hostile work environment situations typically involve sexually offensive conduct that
pervadestheworkplace,makingitdifficultorunpleasantforanemployeetodohisorherjob
efficiently. LYNNE EISAGUIRRE, SEXUAL HARASSMENT: A REFERENCE HANDBOOK 84 (2d ed.
1997). Investigating agencies and courts usually consider four factors to determine whether
sexual harassment has occurred: (1) whether the behavior was sexual in nature; (2) whether
the behavior was unreasonable; (3) whether the behavior was severe or pervasive in the
workplace; and (4) whether the behavior was unwelcome. Id. The other form of workplace
sexual harassmentquid pro quo sexual harassmentis defined as [s]exual harassment in
whichanemploymentdecisionisbasedonthesatisfactionofasexualdemand.Thistypeof
harassmentmightoccur,forexample,ifabossfiredordemotedanemployeewhorefusedto
goonadatewiththeboss.BLACKSLAWDICTIONARY1499(9thed.2009).
150Id.(citingBurlingtonIndus.,Inc.v.Ellerth,524U.S.742,765(1998);Faragherv.Cityof
BocaRaton,524U.S.775,808(1998)).Atangibleemploymentactionconstitutesasignificant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantlydifferentresponsibilities,oradecisioncausingasignificantchangeinbenefits.
Ellerth,524U.S.at761.
151Elvig,375F.3dat959(quotingNicholsv.AztecaRest.Enters.,Inc.,256F.3d864,877(9th
Cir.2001)).
152Id.(quotingNichols,256F.3dat877).
ThemajorityconcludedthatElvigcouldnotrelyonshowingthatshe
suffered sexual harassment culminating in a tangible employment action,
as that would infringe on her employers First Amendment rights.153
However, the plaintiff could hold the Church vicariously liable for the
sexualharassmentitselfunlesstheChurch[could]satisfythe...affirmative
defense.154 This restricted, secular inquiry would focus solely on
whetherElvigcouldprovethatshewassexuallyharassedandwhetherthe
church could prove its affirmative defense.155 Because this would be a
secular legal analysis, the court stated, the First Amendment rationales
underlyingtheministerialexceptionwouldnotbeinvoked.156
OfthethreejudgessittingontheElvigpanel,onlyone(JudgeFisher)
fully subscribed to the majority opinion.157 In a dissenting opinion, Judge
Trott wrote that now [a] secular federal court jury has been given the
authoritytoinvade,toevaluate,andtooverrulethePresbyterianChurchs
finaljudgmenttowhichtheChurchsaystheplaintiffwasboundtoaccept
by her religious vows.158 Further, according to Judge Trott, when the
church attempts to assert its reasonable care defense, every step the
church took to respond to the plaintiffs claims will be examined; by
necessity, [this will involve] penetrating discovery and microscopic
examination by litigation of the Churchs disciplinary procedures and
subsequent responsive decisions.159 Since a church has a constitutional
righttoautonomyinthedevelopmentofitsowngovernancemechanisms
and proceduresa right that has been recognized and directly addressed
by the Supreme Court160the plaintiffs sexual harassment claim should
153Seeid.ThecourtstressedtheimportanceofkeepingthenatureofElvigsclaimlimited:
Elvig may not rely on protected ministerial decisionsthe removal of certain duties, her
suspension, her termination and the refusal to permit the circulation of her personal
informationformasbasesfortheDefendantsliabilityunderTitleVII.Id.at969.
154Id. at 960 (emphasis added); see also Lauren P. Heller, Note, Modifying the Ministerial
Exception:ProvidingMinisterswithaRemedyforEmploymentDiscriminationUnderTitleVIIWhile
Maintaining First Amendment Protections of Religious Freedom, 81 ST. JOHNS L. REV. 663, 682
(2007)(Ineffect,thecourtheldthatitwasunconstitutionalforElvigtoseekcompensationfor
lostwages...butthatshecouldconstitutionally...seekcompensationforemotionaldistress,
damagestoreputation,orotherharmswhichimmediatelyresultedfromtheharassment.).
156Seeid.at969.
157See id. at 951. In his concurrence, Judge Gould expressed misgivings [as to] whether
Bollard was correctly decided, [however] it binds us unless and until altered by an en banc
panelortheUnitedStatesSupremeCourt.Id.at970(Gould,J.,concurring).
158Id.(Trott,J.,dissenting).
159Id.at973.
160SeeinfraPartII.A.
havebeenbarred.161JudgeTrottconcludedthat:
TheSupremeCourtandtheCourtsofAppealsfollowingitslead
have never been distracted by the discrete civil legal cause of
actionpleadedbylawyers....Courts,exceptforoursinBollard,
have always seen through that secular civil legal veil to the
underlying constitutional right at issue: the Religion Clauses of
theFirstAmendment.162
II. WhySexualHarassmentClaimsShouldBePrecluded
BollardandElvighavedepartedfromoveracenturyofSupremeCourt
jurisprudence, have created a circuit split by running contrary to every
United States Court of Appeals that has considered the ministerial
exception, and have created confusion among the lower courts over
fundamentalreligiousfreedomsguaranteedbytheFirstAmendment.163As
a result, [f]or the one in every five Americans who live in [the Ninth
Circuits] jurisdiction, the wall of separation between church and state
nowhasagate.164
A. ReligiousOrganizationsHaveaLegitimateClaimtoAutonomyin
InternalDisciplinaryProceedings.
In the context of Title VII lawsuits, religious organizations have the

constitutionalrighttoautonomyintheadjudicationofdisciplinarymatters
relating to their spiritual leaders.165 For most churches, adjudicatory
processes have ecclesiastical underpinnings.166 Thus, when a church
disciplines one of its leaders, it is typically doing so based on religious
161Elvig,375F.3dat97980(Trott,J.,dissenting).
162Id.at979.
163SeeSkrzypczakv.RomanCatholicDioceseofTulsa,611F.3d1238,1245(10thCir.2010)
(describing the Ninth Circuits approach as arbitrary and confusing); Bollard v. Cal.
Province of the Socy of Jesus, 211 F.3d 1331, 1331 (9th Cir. 2000) (order denying en banc
rehearing)(Wardlaw,J.,dissenting).
164Elvig v. Calvin Presbyterian Church, 397 F.3d 790, 798 (9th Cir. 2005) (Kleinfeld, J.,
dissentingintheorderdenyingrehearingenbanc).
165SeeBlackv.Snyder,471N.W.2d715,722(Minn.Ct.App.1991)(Randall,J.,dissenting)
(A churchs right to look at a pastors actions, and decide that they warrant suspension or
firing, or do not warrant suspension or firing, are protected by the first amendment
prohibition against excessive government entanglement on church matters.). This Note
addressesTitleVIIemploymentdiscriminationsuitsbasedonsexualharassmentanddoesnot
argue that churches are completely immune from secular adjudication. See infra Part III. In
oursociety,jealousasitisofseparationofchurchandstate,onewhoenterstheclergyforfeits
theprotectionofthecivilauthoritiesintermsofjobrights.Higginsv.Maher,258Cal.Rptr.
757,761(Ct.App.1989)(emphasisadded).
166SeeElvig,375F.3dat973(Trott,J.,dissenting).
beliefs.167Forexample,TheAssociateReformedPresbyterianChurchsBook
of Discipline states: [t]he purpose of discipline is to bring about the
reconciliationofmantoGodandmantomanandtoengagethepeopleof
God in the ministry of reconciliation.... [E]ach individual and group is
finally responsible not to a church court, but to God.168 The Book of
Discipline goes on to state that, under the authority of the Lord, [the
Church] disciplines or guides, instructs, and controls its members and
courtstoenablethemtoserveGodmoreeffectively.169
The Supreme Court has recognized the importance of church
autonomyintheadjudicationofinternaldisputes.170Watsonv.Jones,which
involvedabitterdivisionofthePresbyterianChurchovertheuseofchurch
property, held that whenever questions of ecclesiastical discipline, faith,
rule, custom, or law have been decided by church judicatories, legal
tribunals must accept such decisions as final.171 Watson repudiated the
Englishrule,whichrequiredachurchtoshowdoctrinaljustificationforits
conduct.172 Deciding the true standard of faith in internal church
disputes was forbidden under Watson;consequently, courts mustdefer to
the decisions of the highest church authority regarding religious
questions.173
The Court elaborated on Watson in Serbian Eastern Orthodox Diocese v.
Milivojevich, which held that the First Amendment prohibits courts from
deciding whether a churchs governing body had the power under
religious law to decide a dispute as it did.174 Milivojevich arose after the
Serbian Orthodox Church defrocked175 a bishop in response to a church
propertydispute.176TheCourtheld:
167Seeid.
168The Book of Discipline, Chapter I: Theology of Church Discipline, THE ASSOC. REFORMED
PRESBYTERIANCHURCH,http://www.arpsynod.org/bod_i.html(lastvisitedApr.23,2011).
169Id.
170See Laycock, supra note 73, at 1395 (In the ecclesiastical appointment and church
organizationcases,theCourthasuniformlyheldthatsecularcourtsareboundbythedecision
ofthehighestchurchauthorityrecognizedbybothsidesbeforethedisputebegan.).
17180U.S.(13Wall.)679,727(1871);seealsoKedroffv.St.NicholasCathedral,344U.S.94,
116(1952)(describingWatsonasallowingaspiritoffreedomforreligiousorganizations,an
independence from secular control or manipulationin short, power to decide for
themselves,freefromstateinterference,mattersofchurchgovernmentaswellasthoseoffaith
anddoctrine(emphasisadded)).
172SeeWatson,80U.S.at724,727.
173Id.at727;seealsoCorbin,supranote30,at1985.
174426U.S.696,70809(1976).
175To defrock means to deprive [a monk, priest, minister, etc.] of ecclesiastical rank,
authority,andfunction.WEBSTERSCOLLEGEDICTIONARY356,1455(4thed.1996).
176Milivojevich,426U.S.at698.
[W]here resolution of the disputes cannot be made without

extensiveinquirybycivilcourtsintoreligiouslawandpolity,the
FirstandFourteenthAmendmentsmandatethatcivilcourtsshall
not disturb the decisions of the highest ecclesiastical tribunal within a
church of hierarchical polity, but must accept such decisions as
binding on them, in their application to the religious issues of
doctrineorpolitybeforethem.177
Further, the Court stated that preclusion of adjudication of

controversies over religious doctrine applies with equal force to church
disputesoverchurchpolityandchurchadministration.178
Ataminimum,whereareligiousorganizationhasaformalgoverning
procedure for resolving sexual harassment disputes, civil courts must
accepttheirdecisionsasfinalunderWatsonandMilivojevich.179Ifachurch
uses disciplinary mechanisms to resolve a dispute between church
membersespeciallywhereoneorbotharespiritualleaderscivilcourts
cannotsecondguessthosedisciplinarydecisions.180Allowingcivilcourts
to,inessence,overrulechurchdisciplinarydecisionswouldcontravenethe
SupremeCourtsholdinginMilivojevich.181
Further, the Free Exercise Clause is violated in these circumstances
because,undertheministerialexceptionsfreeexerciserationale,religious
organizationshavetherighttoautonomousmanagementanddisciplineof
ministers.182 Since churches have this fundamental right and Milivojevich
allowschurchdisciplinarydecisionstobebindingoncivilcourts,plaintiffs
177Id.at709(emphasisadded).
178Id.at710;seealsoTomicv.CatholicDioceseofPeoria,442F.3d1036,1038(7thCir.2006)
(Even if the suit does not involve an issue of religious doctrine, but concerns merely the
governance structure of the church, the courts will not assume jurisdiction if doing so would
interferewiththechurchsmanagement.(emphasisadded)).
179SeeBlackv.Snyder,471N.W.2d715,723(Minn.Ct.App.1991)(Randall,J.,dissenting)
(Allowing [Plaintiffs] sexual harassment claim to be tried in a civil court requires court
supervisionover[theChurchs]disciplinarydecision....ThehierarchyoftheChurch...has
discretiontodisciplineitspastoralmembers.).
180See Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 970 (9th Cir. 2004) (Trott, J.,
dissenting). In Tomic v. Catholic Diocese of Peoria, Judge Posner considered the historical
underpinnings of religious insulation from federal court jurisdiction over internal church
matters. See 442 F.3d at 103738. When Article III . . . created the federal judicial power,
Englandhad,aspartofitsestablishedchurch,ecclesiasticalcourts....SincetheUnitedStates
wasnottohaveanationalchurch,thefederaljudicialpowerwasnotenvisagedasextending
to the resolution of ecclesiastical controversies. Id. (citing 3 WILLIAM BLACKSTONE,
COMMENTARIES,6465(ClarendonPress1949)(1768)).
181SeeElvigv.CalvinPresbyterianChurch,397F.3d790,801(9thCir.2005)(Kleinfeld,J.,
182SeeMcClurev.SalvationArmy,460F.2d553,55859(5thCir.1972).
cannotrelitigate183TitleVIIsexualharassmentsuitsincivilcourts.184To
allow civil courts to relitigate matters that have already gone through
formal church disciplinary proceedings would invite constant overruling
of church decisions.185 Thus, matters relating to church membership or
clergyemploymentshouldbeinsulatedfromstateregulatoryprocesses.186
[I]f [a] court did not agree with the procedure used and the effects
therefrom,inholding[a]churchliable,thecourtwouldbesubstitutingits
lawsanddisciplinaryactionforthatofthechurch.187
In a sexual harassment complaint, when a subordinate in a church
hierarchy disputes an ecclesiastical tribunals decision, a civil court may
not interfere with the tribunals final decision.188 A possible exception to
thisrule,mentionedinSupremeCourtdicta,maybeinvokedwherethere
is fraud or collusionin the church tribunals adjudication.189 However, no
SupremeCourtdecisionhaseverdefinedorappliedthisexception.190This
is likely because [i]n order to determine whether a church employed
fraudulent or collusive tactics... , a court would necessarily be forced to
inquireintothechurchsecclesiasticalrequirementsforaminster.191
B. TheAbsenceofaDoctrinalJustificationDoesNotAllow
AdjudicationofSexualHarassmentClaims.
BollardandElvigemphasizethat,sincechurchesusuallywillnotoffera
religiousjustificationforthesexualharassmentoftheirministers,allowing
a Title VII sexual harassment suit to proceed would not infringe on a
churchs First Amendment rights.192 This rationale provides the basis for
183SeeLaycock,supranote73,at1405([T]hedesireforsecularadjudicationtypicallyarises
asanafterthoughtafteronegrouphaslostinternally.).
184See Elvig, 397 F.3d at 801 (Kleinfeld, J., dissenting in the order denying rehearing en
banc).
186SeeBagni,supranote52,at1549.
187Jacobsv.MallardCreekPresbyterianChurch,Inc.,214F.Supp. 2d552,557(W.D.N.C.
2002).
188SeeDixonv.Edwards,290F.3d699,715(4thCir.2002).
189SeeGonzalezv.RomanCatholicArchbishopofManila,280U.S.1,16(1929).InGonzalez,
theCourtalsoaddedarbitrarinesstothisexception;however,theCourtsubsequentlyheld
that allowing an arbitrariness exception would be inconsistent with the constitutional
mandate that courts must accept church decisions on essentially ecclesiastical matters. Van
Osdol v. Vogt, 908 P.2d 1122, 1133 (Colo. 1996) (discussing Serbian E. Orthodox Diocese v.
Milivojevich,426U.S.696,713(1976)).
190VanOsdol,908P.2dat1133(quotingMilivojevich,426U.S.at712).
191Id.
192SeeElvigv.CalvinPresbyterianChurch,375F.3d951,959(9thCir.2004);Bollardv.Cal.
ProvinceoftheSocyofJesus,196F.3d940,947(9thCir.1999).
theargumentthatsexualharassmentallegations,inandofthemselves,are
purelysecularinquires;therefore,adjudicatingthemdoesnotimplicatethe
First Amendment.193 What is left open, the Elvig majority stated, is a
restricted, secular inquiry: whether [a plaintiff] can carry her burden of
provingshewassexuallyharassedand,ifshecan,whetherthechurchcan
proveitsaffirmativedefense.194Atfirstglance,theseargumentsmayseem
tohavemerit,assomecommentatorssuggest.195
However, this reasoning begs a constitutionally forbidden question:
whatconstitutesexerciseofreligiousdoctrineasopposedtomeresecular
activities?196Asanillustration,considersinginginachurchchoir;whileit
is an activity that is viewed as an exercise of religion, it may not be
requiredbyconscienceordoctrine.197Decidingwhethersinginginachurch
choir is required by church doctrine or is merely an ancillary, secular
consequenceofreligiouspracticeisaquestionthatcourtsareforbiddento
ask.198 Courts cannot attempt to decide whether church activities are
required by church doctrine or are something that churches do for
nonreligious reasons.199 Permitting courts to inquire into these activities
would revive the English rule requiring the church to show doctrinal
justification for its conduct.200 Therefore, allowing a Title VII sexual
harassmentsuittoproceedonthejustificationthatachurchdoesnotoffer
a religious explanation for the misconduct runs counter to the Supreme
CourtsholdinginWatson,whereitabolishedtheEnglishruleinfavorofa
deferentialapproachtochurchdecisionmaking.201
In Elvig, the Ninth Circuit held that the ministerial exception did not
apply even though the inquiry might involve interpreting the Churchs
194Id.
195See,e.g.,Vartanian,supranote33,at106465.
196SeeSkrzypczakv.RomanCatholicDioceseofTulsa,611F.3d1238,1245(10thCir.2010);
cf.Laycock,supranote73,at1390(Manyactivitiesthatobviouslyareexercisesofreligionare
not required by conscience or doctrine. Singing in the church choir and saying the Roman
Catholicrosaryaretwocommonexamples.Anyactivityengagedinbyachurchasabodyis
anexerciseofreligion.).
197Laycock,supranote73,at1390.
198SeeElvigv.CalvinPresbyterianChurch,397F.3d790,801(9thCir.2005)(Kleinfeld,J.,
199Laycock,supranote73,at1390.Thisapproachreflectsarigid,simplistic,anderroneous
viewofreligion.Id.;seealso AliceaHernandezv.CatholicBishopofChi.,320F.3d698,703
(7thCir.2003)(Toruleotherwisewouldenmeshthecourtinendlessinquiriesastowhether
eachdiscriminatoryactwasbasedinChurchdoctrineorsimplysecularanimus.).
200SeeWatsonv.Jones,80U.S.(13Wall.)679,724,727(1871).
201SeeCorbin,supranote30,at1985.
Book of Order regarding sexual harassment.202 Free exercise and

substantiveentanglementconcernsresultingfromsecularinterpretationof
religious discipline were present, as the court would be tasked with
oversightofreligiousgovernance.203However,theElvigmajorityreasoned
that, since the Presbyterian Church did not condone or tolerate sexual
harassment,noFirstAmendmentrightswereatstake.204Hence,[n]othing
inthecharacterof[theinquirywould]requireajurytoevaluatereligious
doctrineorthereasonablenessofreligiouspracticesfollowed....205
This argument suffers from three major flaws. First, it does not
considertherightsthatchurcheshavetoautonomyinadjudicatinginternal
disputes between church members.206 Under the Presbyterian Churchs
RulesofDiscipline,theplaintiffinElvigwentthroughanextensiveprocess
in order to seek relief for the alleged sexual harassment.207 While sexual
harassment may be a secular issue, the fact that the Church had a formal
procedureforresolvingsuchdisputesshouldresultincivilcourtshaving
to abide by the church tribunals final decisions.208 It is difficult to
conceive how the federal judiciary could determine whether an
employment decision concerning a minister was based on legitimate or
illegitimate grounds without inserting [itself] into a realm where the
constitution forbids [it] to tread, the internal management of a church.209
203AppelleesBriefat25,Elvigv.CalvinPresbyterianChurch,375F.3d951(9thCir.2004)
(No.0235805),2003WL22593724at*25.
204SeeElvig,375F.3dat963.
205Bollardv.Cal.ProvinceoftheSocyofJesus,196F.3d940,950(9thCir.1999).
206SeesupraPartII.A.
207SeeElvig,375F.3dat97172(Trott,J.,dissenting).TheplaintifffiledanAccusationby
IndividualasaStatementofOffenseagainsttheoffendingparties;thereafter,herallegations
were considered by an impartial, fivemember Investigating Committee. Id. at 971. Church
law and procedure dictated the thoroughness of the inquiry, as witnesses were called,
documentswereexamined,anddiscrepanciesintestimonywereresolved.Id.at971,973.The
ultimate task of the Committee was to decide whether the accused would be charged; the
Committee arrived at a unanimous decision that charges against the accused would not be
lodged. Id. at 971. The plaintiff filed a Petition for Review of the Investigating Committees
decisionwiththePermanentJudicialCommission,whichaffirmedtheCommitteesdecision.
Id.
208SeesupraPartI.A.
209Elvig v. Calvin
Presbyterian Church, 397 F.3d 790, 802 (9th Cir. 2005) (Kleinfeld, J.,
dissenting in the order denying rehearing en banc) (quoting Combs v. Cent. Tex. Annual
Conf.ofUnitedMethodistChurch,173F.3d343,350(5thCir.1999));seealsoBlackv.Snyder,
471 N.W.2d 715, 723 (Minn. Ct. App. 1991) (Randall, J., dissenting) (One could argue that
something more should have been done, but we are restrained by the establishment clause
frominterjectinggovernmentoversightintotheecclesiasticaldecisionprocessonwhetherto
disciplineorremoveapastoralmember.).
AlthoughElvigreasonedthatinquiryintochurchactionsisallowableifthe
actions are not religious in nature, the Supreme Court has consistently
held that churches must have the power to decide for themselves, free
from state interference, matters of church government as well as those of
faithanddoctrine.210
Further, by allowing sexual harassment suits to proceed, courts may
affect the way religious institutions handle ministerial employment
decisions, which is a direct interference with the constitutional rationales
underlying the ministerial exception.211 Rather than hiring ministerial
employees based purely on doctrinal prerogatives, churches may hire
ministerialemployeeswithaneyetowardlitigation,212especiallyinlightof
the rising number of sexual harassment complaints in secular American
workplaces.213 Instead of asking whether an employment decision would
furtherchurchesreligiousobjectives,churcheswillbeforcedtoask:will
this employment decision expose us to liability?214 As a result, matters
whichdealwiththeverytermsofaministerscalling215wouldbedirectly
affected, as churches would have to consider their potential liability in
assessingministerialemploymentdecisions.216
Second, even if sexual harassment claims are entirely secular,
maintaining that these Title VII claims would involve a purely secular
inquiryisamisunderstandingofwhataretypicallycomplexandprobing
disputes.217 Litigating the issue of whether a minister was subjected to
sufficiently severe or pervasive sexual harassment to be actionable under
210Jacobsv.MallardCreekPresbyterianChurch,Inc.,214F.Supp. 2d552,557(W.D.N.C.
2002)(quotingKedroffv.St.NicholasCathedral,344U.S.94,116(1952)).
211SeeElvig,397F.3dat80304(Kleinfeld,J.,dissentingintheorderdenyingrehearingen
banc).
212Seeid.;seealsoSkrzypczakv.RomanCatholicDioceseofTulsa,611F.3d1238,1245(10th
Cir. 2010); Rayburn v. Gen. Conference of SeventhDay Adventists, 772 F.2d 1164, 1171 (4th
Cir. 1985) (There is a danger that churches, wary of EEOC or judicial review of their
decisions,might makethemwithaneyetoavoidinglitigationorbureaucraticentanglement
ratherthanuponthebasisoftheirownpersonalanddoctrinalassessmentsofwhowouldbest
servethepastoralneedsoftheirmembers.).
213See Elizabeth Larson, The Economic Costs of Sexual Harassment, CORP. CAMPUS ONLINE,
http://www.corporationcampus.com/investors/facts.asp(lastvisitedApr.23,2011).
214Elvig, 397 F.3d at 80304 (Kleinfeld, J., dissenting in the order denying rehearing en
banc).
215McClurev.SalvationArmy,460F.2d553,559(5thCir.1972).
216SeeElvig,397F.3dat80304(Kleinfeld,J.,dissentingintheorderdenyingrehearingen
banc)(IfaministerharpstoomuchonthepartsoftheBiblethatarecurrentlynotpolitically
correct,hischurchwilllikelyfeelcompelled...toshuthimuporgetridofhimtoavoidTitle
VIIsuitsfromcolleaguesoffendedbyhispreaching.).
217See Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 975 (9th Cir. 2004) (Trott, J.,
dissenting).
Title VII may seem, on its face, to be a restricted inquiry.218 However,

since sexual harassment controversies in this context relate to ministerial
employmentthe behavior of ministers within a church, their fitness to
hold ministerial positions, and their objection to employment decisions
they implicate the fears inherent in the founding ministerial exception
cases.219 Discrete parts of the episodei.e., the incidents of sexual
harassment alonecannot be neatly isolated from the whole.220 It is
simply wishful thinking to believe that because civil laws against sexual
harassmentdonotconflictwithchurchdoctrine,[these]lawsuit[s]andthe
judiciouscontrolofdiscoverywillnotviolatetheChurch.221
Third,thisreasoningdoesnotaccountforasituationwhereareligious
organizationdoesofferareligiousjustificationforsexualharassmentofits
ministers.222 If a church does not offer a religious justification for sexual
harassmentofitsministers,underBollardandElvig,thesuitmayproceed
without upsetting First Amendment protections.223 However, Bollard and
Elvig implicate that, if a church doctrinally justifies sexual harassment, it
would be protected under the First Amendment.224 This result is
contradictory and perverse; courts would protect religious organizations
that justify the sexual harassment of their ministers on doctrinal grounds
butwouldoverturnandrelitigatethedecisionsofchurchesthatattemptto
use disciplinary procedures to resolve these controversies.225 Since sexual
harassment in the workplace is a problem affecting many individuals,226
this may create an incentive for religious organizations to justify sexual
218SeeBollardv.Cal.ProvinceoftheSocyofJesus,196F.3d940,94950(9thCir.1999).
219See Elvig, 375 F.3d at 975 (Trott, J., dissenting); McClure, 460 F.2d at 559 (Matters
touching [the] relationship [between an organized church and its ministers] must necessarily
berecognizedasofprimeecclesiasticalconcern.(emphasisadded)).
220Elvig,375F.3dat975(Trott,J.,dissenting).
221Id.
222SeeBollard,196F.3dat947.
223Seesupranotes14446andaccompanyingtext.
224See Elvig, 375 F.3d at 959 (relying on Bollard in holding that the absence of a religious
justification allows sexual harassment suits to proceed). But cf. Marci A. Hamilton, The
Licentiousness in Religious Organizations and Why It Is Not Protected Under Religious Liberty
ConstitutionalProvisions,18WM. & MARY BILL RTS. J.953,956(2010)(arguingthat,evenwhen
abuse is rooted in religious doctrine, conduct involving illicit sex was never meant to be
constitutionallyprotected).
225Cf. Bollard, 196 F.3d at 947 (The Jesuits disavowal of the harassment ... reassures us
that [adjudication of the claim] will have no significant impact on their religious beliefs or
doctrines.).
226Onestudyhasshownthatseventeenpercentofmenandthirtyfivepercentofwomen
said they had experienced sexual harassment in the workplace. Sexual Harassment in the
Workplace, SEXUAL HARASSMENT SUPPORT, http://www.sexualharassmentsupport.org/SHwork
place.html(lastvisitedApr.23,2011).
harassment as doctrinally allowed in order to prevent probing secular

inquiry into their doctrine.227 The fear of secular adjudication of religious
doctrine is justified, as litigation involving clergy has increased over the
years.228Ratherthancreatethisincentive,secularauthoritiesshouldallow
religious tribunals to have exclusive power to litigate these matters of
ecclesiasticalgovernance.229
C. TheReasonablenessInquiryRunsCountertotheFirst
Amendment.
Evenifthechurchautonomyininternaldisciplinarymatters230andthe
absence of a doctrinal justification231 arguments prevail in favor of
litigatingTitleVIIsexualharassmentclaims,thereasonablenessinquiry
that a court must conduct pursuant to a churchs affirmative defense
violates the Establishment Clause.232 The restricted, secular inquiry that
the Elvig majority described was whether [the plaintiff] can carry her
burdenofprovingshewassexuallyharassedand,ifshecan,whetherthe
Church can prove its affirmative defense.233 Because this inquiry will
necessarily entail examining every step a church took to respond to a
plaintiffs allegation of sexual harassment, civil courts will become
entangled with religious decisionmaking processes in violation of the
EstablishmentClause.234
In order [t]o establish a hostile work environment in a sexual
harassmentcase,[aplaintiff]mustshowthattheactionstakenagainsther
weresufficientlysevereorpervasivesoastoalterherworkingconditions
to the point where there was an abusive environment.235 An employer
can be vicariously liable for a hostile work environment that results in a
tangibleemploymentaction.236However,astheElvigmajoritynoted,under
227SeeBollard,196F.3dat947.
228SeeRONALD K. BULLIS & CYNTHIA S. MAZUR,LEGAL ISSUESAND RELIGIOUS COUNSELING
3334(1993).
229SeeLaycock,supranote73,at1373.
230SeesupraPartII.A.
231SeesupraPartII.B.
232SeeElvigv.CalvinPresbyterianChurch,397F.3d790,80607(9thCir.2005)(Gould,J.,
dissenting in the order denying rehearing en banc) (I do not see how a church can take
advantage of the affirmative defense established by the Supreme Court[] . . . without
entanglingthecourtsinthekindofreviewofchurchaffairsthattheestablishmentclausewas
designedtoavoid.).
233Elvigv.CalvinPresbyterianChurch,375F.3d951,963(9thCir.2004).
234SeeElvig,397F.3dat807(Bea,J.,dissenting).
235Reaves,supranote108,at42728.
236Elvig, 375 F.3d at 959 (citing Burlington Indus., Inc. v. Ellerth, 524U.S. 742, 765 (1998);
Faragherv.CityofBocaRaton,524U.S.775,808(1998)).
the ministerial exception plaintiffs cannot rely on showing that [they]

suffered sexual harassment culminat[ing] in a tangible employment
action.237
Alternatively,whentherehasbeennotangibleemploymentaction,an
employer may raise what is known as the EllerthFaragher affirmative
defensetoliabilityordamages.238Theaffirmativedefensehastwoprongs:
(1) that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior; and (2) that the plaintiff
unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.239
ElvigandBollardbothheldthattheplaintiffs(ministers)couldholdtheir
employers (churches) vicariously liable for the sexual harassment itself,
unlessthechurchescouldsatisfytheaffirmativedefensetosuchclaims.240
The problem with this analysis is in the first prong.241 In his dissent
fromtheElvigholding,JudgeTrottalludedtothepotentialproblemswith
areasonablecaredefenseinthecontextofreligiousemployment:[s]uch
an inquiry... will involve, by necessity, penetrating discovery and
microscopic examination by litigation of the Churchs disciplinary
procedures and subsequent responsive decisions.242 The adjudication of
reasonableness issues involves improper examination and evaluation
ofchurchdoctrineregardingtheextentofcontrolthatchurchhierarchical
237Elvig,375F.3dat960(quoting Ellerth,524U.S.at 765)(What makesthiscaseatypical
... is that each tangible employment action Elvig alleges implicates the Churchs
constitutionally protected prerogative to choose [its] representatives free from government
interference and according to the dictates of faith and conscience. (quoting Bollard v. Cal.
ProvinceoftheSocyofJesus,196F.3d940,945(9thCir.1999))).
238Jenkins v. Winter, 540 F.3d 742, 74849 (8th Cir. 2008) (citing Ellerth, 524 U.S. at 765;
Faragher,524U.S.at80708).
239Elvig,375F.3dat959(quotingNicholsv.AztecaRest.Enters.,256F.3d864,877(9thCir.
2001)).
240SeeElvig,375F.3dat960;Bollard,196F.3dat94950.
242Id.
For example, the design of an employers antiharassment policy and the
reasonableness of the policys implementation could be dissected by a court. See generally
Holly D. v. Cal. Inst. of Tech., 339 F.3d 1158, 117679 (9th Cir. 2003). In Holly D., the Ninth
Circuit engaged in a probing inquiry of the defendants mechanisms for prevention and
correction of sexual harassment, finding that the defendant promulgated a written policy
which defined the prohibited behavior, identified contact personnel, and established
procedures to investigate and resolve any claims. Id. at 1177. The court then went into a
detailed analysis of exactly how the procedure was implemented and ultimately found that
thedefendantsactionswerereasonable.Id.at117778.Asappliedtotheinnerworkingsofa
church, such a searching analysis would raise constitutional problems under the
EstablishmentClause.SeeElvig,375F.3dat973(Trott,J.,dissenting);supraPartI.B.2.
members have over their clergy.243 Therefore, requiring a church to

establishthatitscorrectiveactionswerereasonableandallowingsecular
authorities to ultimately make this decisionsubstantively entangles civil
courtswithreligiousorganizations.244
Forexample,considerachurchthat,pursuanttoitsgoverningmanual,
referred all sexual harassment complaints to an impartial investigating
panel comprised of ten individuals.245 Bollard held that evaluating the
reasonablecareachurchtooktopreventandcorrectsexualharassment
is a restricted inquiry, and nothing in the character of the defense would
require the evaluation of religious doctrine or the reasonableness of
religious practices.246 However, consider two alternative situations: in the
first,theinvestigatingpanelconsistsoffivemalesandfivefemales;inthe
second, the panel consists of ten males.247 The first scenario seems like a
reasonable composition of an impartial panel investigating a sexual
harassmentclaim;butthesecondscenariomayseemunreasonableinlight
ofhighervolumeofsexualharassmentclaimsbroughtbywomen.248Ifthe
panel is composed only of males in accordance with church hierarchical
doctrine, the reasonableness of its composition will come under direct
scrutiny by a secular trier of fact, resulting in substantive entanglement
withreligiouspractices.249
Additionally, the review of what constitutes reasonable employment
actions necessarily results in secular authorities passing judgment on
whetherecclesiasticalentitiesarereasonableundersecularstandards.250The
evidentiary inquiries relating to an employers reasonableness are
troublesome; for example, should nonecclesiastic practices of secular...
organizationsbeconsidered,251orshouldajuryhearthepracticesofother
243Response Brief of Appellees at 3738, Bollard, 196 F.3d 940 (No. 9816194), 1998 WL
34105030at*3738;seeSwansonv.RomanCatholicBishopofPortland,1997ME63,10,692
A.2d441,444.
244Elvig,375F.3dat973(Trott,J.,dissenting);seesupraPartI.B.2.
245See,e.g.,Elvig,375F.3dat971(Trott,J.,dissenting).
247See Elvig v. Calvin Presbyterian Church, 397 F.3d 790, 809 n.3 (9th Cir. 2005) (Bea, J.,
248Although the number of sexual harassment claims filed by men is increasing, the vast
majorityofcomplaintscome fromwomen.SeeSexualHarassmentintheWorkplace,supranote
226.
249See Elvig, 397 F.3d at 809 n.3 (Bea, J., dissenting) (A jurys adjudication of the
reasonableness of a religious institutions actions in response to a complaint of sexual

harassment inevitably requires the jury to adjudicate the reasonableness of the religious
doctrinethatinformsthemeasurestakenbythereligiousinstitution[s].).
250Id.at809.
251Id.at808.
religious organizations to determine whether the targeted employers

practices were reasonable?252 Inquiring into whether a churchs
employmentdecisionisreasonablethusraisesdifficultproblemsregarding
exactlywhatisreasonableinthecontextofchurchdecisionmaking,and
thepotentialforsubstantiveentanglementisgreat.253[D]eterminingwhat
is a reasonable employer inhouse process to prevent... discrimination
ineluctably requires secular bodies to pass judgment on whether
ecclesiastical entities are reasonable by standards of secular
authorities.254 As a result, the guidance of the state is substituted for
religious decisionmaking regarding ministerial employment, which
infringesuponchurchestablishmentrights.255
III. PolicyConcerns
The ministerial exception is a narrowly tailored exception to Title VII

thatiscompelledbytheFirstAmendment.256Itappliesonlytoemployment
law, as it bars lawsuits against religious entities regarding ministerial
employment.257 Churches are not protected from laws of general
applicability regarding regular lay employees, as only ministers fall
undertheexception.258
The exception does not provide religious organizations a shield from
criminal law,259 as the First Amendment is no defense to child abuse or
252Seeid.
253Seeid.at80710.
254Id.at809.
255SeeRayburnv.Gen.ConferenceofSeventhDayAdventists,772F.2d1164,1170(4thCir.
1985).
256Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 975 n.3 (9th Cir. 2004) (Trott, J.,
dissenting).
257See Hankins v. Lyght, 441 F.3d 96, 118 n.13 (2d Cir. 2006) (Sotomayor, J., dissenting)
(statingthattheministerialexceptionappliesonlytoexempt[]religiousinstitutionsonFirst
Amendment grounds from employment discrimination suits brought by clergy members or
other employees serving primarily religious roles); Ira C. Lupu & Robert W. Tuttle, Sexual
MisconductandEcclesiasticalImmunity,2004BYU L. REV.1789,1804(2004)(Prominentinthe
context of internal disputes is the ministerial exception to employment law, which bars
adjudicationofmostclaimsagainstreligiousentitieswithrespecttodecisionsinvolvingwho
shallbeaspokespersonforaparticularfaith.).
258Elvig, 375 F.3d at 975 n.3 (Trott, J., dissenting); EEOC v. Roman Catholic Diocese of
Raleigh, 213 F.3d 795, 801 (4th Cir. 2000) ([The ministerial exceptions] contours are not
unlimited . . . . For instance, the exception would not apply to employment decisions
concerningpurelycustodialoradministrativepersonnel.);seesupraPartI.C.
259First Amendment Does Not Protect Criminal Activities by Staff at Religious Organizations,
Says Americans United, AMS. UNITED FOR SEPARATION OF CHURCH & STATE (Dec. 14, 2009),
http://www.au.org/media/pressreleases/archives/2009/12/firstamendmentdoesnot.html.
criminal acts perpetrated by ministers.260 The context in which the

ministerial exception arisesworkplace disputesis what makes its
applicationconstitutionallycompelled.261Thus,ministerswhoaresexually
abused or assaulted are not barred from seeking recourse, as a churchs
protected right to employment matters is not implicated in such
circumstances.262 Additionally, in situations involving illicit sexual
behaviore.g.,rapeandchildsexabusethepolicyinfavorofproviding
a victim redress and punishing perpetrators is very strong;263 religious
liberties are not intended to protect such behavior.264 Because Title VII
260Michael F. Aylward, Constitution, Crime, Clergy: First Amendment Implications of Sexual
Abuse Claims, 70 DEF. COUNS. J. 196, 198 (2003). The recent scandal involving Pope Benedict
XVI provides an illustration. In 1979, three sets of parents informed the church of abuse
committedbyReverendPeterHullermann.NicholasKulish&KatrinBennhold,PopeWasTold
PedophilePriestWouldGetPost,N.Y. TIMES,Mar.26,2010,atA1.Thechaplainwassuspended,
andthediocesesearchedforaplacetotransferhim;afewmonthslater,CardinalRatzingers
(now Pope Benedict XVI) office returned Father Hullermann to pastoral duties. Id. Father
Hullermann resumed parish work and was subsequently convicted of molesting boys. Id.
Under the ministerial exception, this situation would be analyzed as follows: first, since
childrenwilllikelynotbeconsideredministerialemployees,theadjudicationoftheirclaims
wouldnotinfringeonthechurchsprotectedrighttohandlechurchemploymentmatters.See
supraPartI.C.Second,althoughcourtsconcludethatthegovernmentsinterestineliminating
employmentdiscriminationisnevercompellingenoughtoimpedeareligiousorganizations
righttoselfgovernance,[t]heFirstAmendmentisnodefensetochildabuseorovertcriminal
acts.Aylward,supra,at198.Therefore,therewouldbenoconstitutionalbartoclaimssuchas
the ones made by victims of child molestation against churches. See generally Jeffrey R.
Andersonetal., TheFirstAmendment:ChurchesSeekingSanctuaryfortheSinsoftheFathers,31
FORDHAM URB. L.J. 617, 631 (2004) (Interpreting the First Amendment to provide church
defendantscompleteimmunityfromsexualabuseclaimsnotonlypervertsitsplainlanguage
andignoresSupremeCourtJurisprudence,butalsoplacesthesafetyofreligiousinstitutions
abovethesafetyofallcitizens.Itwouldmakethechildreninoursociety,themostinnocent
andunsuspectingamongus,alesspreciouscommoditythanthetheologyofachurch.).
261See Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 124546 (10th Cir.
2010)(decliningtofollowtherationalesofBollardandElvigandconcludingthatanyTitleVII
action brought against a church by one of its ministers will improperly interfere with the
churchsrighttoselectanddirectitsministersfreefromstateinterference).
262Sexual harassment is [a] type of employment discrimination consisting in verbal or
physical abuse of a sexual nature. BLACKS LAW DICTIONARY 1499 (9th ed. 2009) (emphasis
added). Where the relationship between an organized church and its ministers is not at
issue,the ministerialexceptionisnotabarto suit.SeeMcClurev. SalvationArmy,460F.2d
553,55859(5thCir.1972).
263Cf.CurtisNyquist,TeachingWesleyHohfeldsTheoryofLegalRelations,52J. LEGAL EDUC.
238,257(2002)(Ourcurrentunderstandingofpolicyisaconflictingconsiderationsmodelin
which policies are continually in conflict and must be balanced (or traded off) against each
other.).
264Hamilton, supra note 224, at 956 (Among the liberties that were never intended to be
protected, clearly, were polygamy and sexual abuse. They were consciously excluded from
claims necessarily entail inquiry into religious decisionmaking involving

ministerial employment, a fundamental religious libertythe terms of a
ministersemploymentisimplicated.265
Further,ministersprecludedfrombringingTitleVIIsexualharassment
claimsagainsttheiremployersarenotabsolutelybarredfromseekingany
recovery.266 For example, since the exception only applies to suits against
religious organizationsand their protected employment decisions
ministers can seek compensation from individuals who harass them.267
Thus, ministers can still obtain some form of relief if they are sexually
harassed even though they cannot bring Title VII claims against their
employers.268
CONCLUSION
Title VII is an attempt by Congress to eradicate workplace

discrimination.Itisundoubtedlyanimportantfederalstatutethatprovides
relief for individuals who have suffered from workplace discrimination.
However, the First Amendment protects a religious employers right to
handle ministerial employment in the way it sees fit. Two important
governmental objectivesthe congressional mandate to eliminate
workplace discrimination and the constitutional mandate to preserve the
separationofchurchandstatecollideinthesecircumstances.Inorderto
properly resolve this tension, the constitutional mandate must trump the
congressional mandate if the separation of church and state is to be
protected. Therefore, sexual harassment lawsuits brought by ministers
againsttheirreligiousemployersmustbebarred.
freeexerciseprotection.).
265SeeMcClure,460F.2dat560.
266SeeBlackv.Snyder,471N.W.2d715,722(Minn.Ct.App.1991)(Randall,J.,dissenting).
267See,e.g.,id.at723(Isuggest[thatplaintiffs]civilremedies[be]limitedtoherongoing
lawsuitagainstPastorSnyder.).
268Seeid.

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JAZIRIFINAL_719752.

720 NewEnglandLawReview v.45|719

I esteem it above all things necessary to distinguish exactly the

2011 Fixing a Crack in the Wall of Separation 721

11DEREK H. DAVIS, RELIGION AND THE CONTINENTAL CONGRESS 17741789: CONTRIBUTIONS

722 NewEnglandLawReview v.45|719

against religious organizations under Title VII should be barred by the

2011 Fixing a Crack in the Wall of Separation 723

724 NewEnglandLawReview v.45|719

2011 Fixing a Crack in the Wall of Separation 725

arises as to whether such a defense should be classified as a subjectmatter jurisdiction

organizations, an independence from secular control or manipulation, in short, power to

726 NewEnglandLawReview v.45|719

granted certiorari on the issue of whether the ministerial exception is

Most courts applying the ministerial exception to Title VII disputes

The premise behind the Free Exercise Clause, as recognized by the

2011 Fixing a Crack in the Wall of Separation 727

ecclesiastical rule, custom, law, and discipline.54 Thus, government

728 NewEnglandLawReview v.45|719

rehabilitation center because they ingested peyote for sacramental

2011 Fixing a Crack in the Wall of Separation 729

one of the three factors, it is deemed unconstitutional.69 Title VII clearly

730 NewEnglandLawReview v.45|719

2011 Fixing a Crack in the Wall of Separation 731

considered a minister, courts consider the function of the employees

There is variation among the circuits as to the precise scope of the

732 NewEnglandLawReview v.45|719

2011 Fixing a Crack in the Wall of Separation 733

Sexual harassment lawsuits108 brought by ministers against their

108Sexual harassment is considered a form of discrimination under Title VII because it

interferes with an employees terms and conditions of employment. Rhonda Reaves,

734 NewEnglandLawReview v.45|719

2011 Fixing a Crack in the Wall of Separation 735

or the functions accompanying such a selection, such as a ministers salary, place of

736 NewEnglandLawReview v.45|719

retaliation without attaching liability to ministerial employment decisions protected by the

2011 Fixing a Crack in the Wall of Separation 737

738 NewEnglandLawReview v.45|719

2011 Fixing a Crack in the Wall of Separation 739

In the context of Title VII lawsuits, religious organizations have the

740 NewEnglandLawReview v.45|719

2011 Fixing a Crack in the Wall of Separation 741

[W]here resolution of the disputes cannot be made without

Further, the Court stated that preclusion of adjudication of

742 NewEnglandLawReview v.45|719

2011 Fixing a Crack in the Wall of Separation 743

744 NewEnglandLawReview v.45|719

Book of Order regarding sexual harassment.202 Free exercise and

2011 Fixing a Crack in the Wall of Separation 745

746 NewEnglandLawReview v.45|719

Title VII may seem, on its face, to be a restricted inquiry.218 However,

2011 Fixing a Crack in the Wall of Separation 747

harassment as doctrinally allowed in order to prevent probing secular

228SeeRONALD K. BULLIS & CYNTHIA S. MAZUR,LEGAL ISSUESAND RELIGIOUS COUNSELING

748 NewEnglandLawReview v.45|719

the ministerial exception plaintiffs cannot rely on showing that [they]

237Elvig,375F.3dat960(quoting Ellerth,524U.S.at 765)(What makesthiscaseatypical

2011 Fixing a Crack in the Wall of Separation 749

members have over their clergy.243 Therefore, requiring a church to

reasonableness of a religious institutions actions in response to a complaint of sexual

750 NewEnglandLawReview v.45|719

religious organizations to determine whether the targeted employers

The ministerial exception is a narrowly tailored exception to Title VII