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Revised May 14, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 98-10193
___________________________
REVEREND PAMELA COMBS,
Plaintiff-Appellant,
VERSUS
THE CENTRAL TEXAS ANNUAL CONFERENCE OF THE UNITED METHODIST
CHURCH (a non-profit corporation) and THE FIRST UNITED METHODIST
CHURCH OF HURST,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
___________________________________________________
May 3, 1999
Before DAVIS, SMITH, and WIENER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Reverend Pamela Combs appeals the dismissal of her Title VII
sex and pregnancy discrimination suit against the First United
Methodist Church of Hurst ("First United") and the Central Texas
Annual Conference of the United Methodist Church ("Central Texas
Conference"). The sole question presented in this appeal is
whether the district court correctly determined that the Free
Exercise Clause of the First Amendment precluded it from
considering Reverend Combs's employment discrimination case. For
the reasons that follow, we conclude that the district court was

correct and affirm.
I.
The district court granted Central Texas Conference's Motion
for Summary Judgment and also granted First United's Motion to
Dismiss under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6). Therefore, on appeal, we review the facts, including
credibility determinations and the reasonable inferences that may
be drawn from the facts, in the light most favorable to the
nonmoving party, Plaintiff Reverend Combs. See, e.g., Wynn v.
Washington Nat'l Ins. Co., 122 F.3d 266, 268 (5th Cir. 1997). The
facts of this case, when viewed in such a light, are summarized as
follows.
Reverend Combs is a graduate of the New Orleans Theological
Seminary. In 1988, she was ordained as a Baptist minister. In
1993, she was hired as First United's Singles Minister. In late
1994, she was appointed First United's Associate Minister. In this
new position, she served communion, assisted in baptisms, performed
marriages, and led funerals.
In February 1995, as part of the long process of having her
ordination recognized within the Methodist Church, she was
interviewed by the United Methodist Board of Ordained Ministry,
which unanimously recommended to the Bishop of the Central Texas
Conference that she be ordained. In June 1995, she was appointed
by the Bishop, Joe A. Wilson, to serve for the next year as a
minister at First United.
2

In October 1995, Reverend Combs, who was--and still is--
married, announced that she was pregnant. She requested and was
granted maternity leave for the expected childbirth. In March
1996, she had her annual interview with the United Methodist Board
of Ordained Ministry. The board again recommended unanimously that
Reverend Combs continue with the process of having her ordination
recognized within the Methodist Church.
Around this time, Reverend Combs questioned why her pay was
substantially lower than that of the male ministers she had
replaced. She also requested a housing allowance because she and
her family had moved out of the parsonage to free up space for
other church use. In response, the Staff Parish Relations
Committee made several adjustments to her compensation package.
In April 1996, Reverend Combs took some accrued vacation time
and began her eight-week maternity leave, as provided for clergy by
the rules of the United Methodist Church Book of Discipline. On
April 17, 1996, she gave birth. Unfortunately, however, Reverend
Combs suffered serious post-partum complications, which required
hospitalization, surgery, heavy medication, and extensive rest.
During this period of incapacitation, Reverend Combs's
position within First United was questioned by her pastor and
immediate supervisor, Dr. John Fielder. He challenged her
competence, performance, and honesty. In addition, one of First
United's oversight committees stated that she was a lay employee
rather than a member of the clergy. The church then denied her the
maternity benefits she had been granted and demanded she repay
3

those benefits that had already been paid to her.
Nevertheless, in June 1996, the Bishop of the Central Texas
Conference reappointed Reverend Combs as an Associate Minister for
First United. However, when Reverend Combs returned to work on
June 17, 1996, she was told by Dr. Fielder that she had been
terminated and that she was required to leave the premises
immediately. The next day, Reverend Combs went to the Staff Parish
Relations Committee. The committee stated that Dr. Fielder said
she had resigned and that the committee had accepted her
resignation. Reverend Combs protested that she had not resigned,
but to no avail. Reverend Combs then brought the matter to the
attention of the Central Texas Conference. However, she found no
support from that organization either.
Reverend Combs filed a complaint with the Equal Employment
Opportunity Commission ("EEOC"). The EEOC dismissed the claim
under Section 702 of Title VII, which permits religious
organizations to discriminate on the basis of religion. 42 U.S.C.
� 2000e-1. The EEOC, however, did grant Reverend Combs a "right to
sue" letter.
Reverend Combs sued both the Central Texas Conference and
First United, alleging discrimination on the basis of her sex and
her pregnancy in violation of Title VII. She alleged that the
deprivation of her benefits and her termination were the conclusion
of a practice of discrimination that included disparate salary and
treatment while she was employed.
In response to this suit, Defendant Central Texas Conference
4

filed a Motion for Summary Judgment arguing, among other things,
that the decision to terminate Reverend Combs was shielded from
governmental review by the Free Exercise Clause of the First
Amendment. Defendant First United filed a Motion to Dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) predicated
upon the same theory. On January 15, 1998, the district court
granted these two motions and dismissed Reverend Comb's suit. The
district court held that the First Amendment prohibits civil review
of the Defendants' decision to terminate Reverend Combs and
therefore the district court lacked jurisdiction over the case.
Reverend Combs now appeals this dismissal.1
II.
The question before us is whether the Free Exercise Clause of
the First Amendment2 deprives a federal court of jurisdiction to
hear a Title VII employment discrimination suit brought against a
church by a member of its clergy, even when the church's challenged
actions are not based on religious doctrine.
All parties agree that prior to 1990, the district court
1 All parties agree that, at least for the purposes of this
appeal, the following facts are true: Reverend Combs was a member
of the clergy performing traditional clerical functions; both
Defendants are churches and at least one of them employed Reverend
Combs; and Reverend Combs's claims are based purely on sex and
pregnancy and do not directly involve matters of religious dogma or
ecclesiastical law. In addition, for the purposes of this appeal,
we assume that Reverend Combs's allegations are sufficient to
support a finding of discrimination.
2 The First Amendment provides, in part, "Congress shall make
no law respecting an establishment of religion, or prohibiting the
free exercise thereof; . . . "
5

decision would have been correct. In McClure v. Salvation Army,
460 F.2d 553, 560 (5th Cir. 1972), this Court established a church-
minister3 exception to the coverage of Title VII. In this appeal,
however, Reverend Combs questions whether McClure and its church-
minister exception still stand in light of the Supreme Court's
decision in Employment Division, Department of Human Resources of
Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876
(1990). To resolve this question, we start by reviewing McClure
and move from that case forward.
A.
In 1972, this Court was asked whether Mrs. Billie McClure, a
Salvation Army officer alleging discrimination on the basis of her
sex, could state a claim against the Salvation Army under Title VII
of the Civil Rights Act of 1964. McClure, 460 F.2d at 554-57.
Relying in part upon the findings of the district court, this Court
determined that the Salvation Army was an "employer" under Title
VII, and that the Salvation Army was engaged in interstate
commerce. Id. Therefore, the Court determined that the Salvation
Army fell within the general coverage of Title VII. Id.
The Court also determined that the Salvation Army was a church
and that Mrs. McClure was an ordained minister within that church.
These findings required the Court to address two further questions:
Was the Salvation Army exempt from Title VII under Section 702's
3 Courts have called this exception both the church-minister
exception and the ministerial exception. We use both terms
interchangeably.
6

religious exemption? If not, did the First Amendment exempt the
Salvation Army's treatment of Mrs. McClure from federal review
under Title VII?
In answering the first question, the Court concluded that
although Section 702 exempts religious organizations from Title
VII's coverage for religious discrimination, it does not provide a
blanket exemption for all discrimination. Title VII still
prohibits a religious organization from discriminating on the basis
of race, color, sex, or national origin. Id. Because Mrs. McClure
was alleging discrimination on the basis of her sex, this Court
held that her claim did not fall within the Section 702 exemption.
After determining that Mrs. McClure's claim fell within the
statutory coverage of Title VII, the Court addressed whether the
Free Exercise Clause of the First Amendment permitted such a claim
by a minister against her church. The Court began by noting that
the First Amendment has built a "wall of separation" between church
and state. Id. After describing this wall, the Court stated:
Only in rare instances where a "compelling state interest in
the regulation of a subject within the State's constitutional
power to regulate" is shown can a court uphold state action
which imposes even an "incidental burden" on the free exercise
of religion. In this highly sensitive constitutional area
"`[o]nly the gravest abuses, endangering paramount interests,
give occasion for permissible limitation.'" Sherbert v.
Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965
(1963).4
This Court then emphasized the importance of the relationship
4 This reference to the "compelling state interest" test set
forth in Sherbert will become important in light of later Supreme
Court decisions.
7

between an organized church and its ministers, describing it as the
church's "lifeblood." McClure, 460 F.2d at 558-59. The Court
reviewed a series of cases in which the Supreme Court had placed
matters of church government and administration beyond the
regulation of civil authorities. Id. at 559-60 (citing and
describing Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L. Ed. 666
(1871) (affirming state court decision not to become involved in
factional dispute within church); Gonzalez v. Roman Catholic
Archbishop of Manila, 280 U.S. 1, 50 S. Ct. 5, 74 L. Ed. 131 (1929)
(declining, absent fraud, collusion, or arbitrariness, to involve
secular courts in matters purely ecclesiastical); Kedroff v. St.
Nicholas Cathedral, 344 U.S. 94, 73 S. Ct. 143, 97 L. Ed. 120
(1952) (holding that legislation transferring control of Russian
Orthodox churches from Patriarch of Moscow to convention of North
American churches is unconstitutional interference with the free
exercise of religion); Kreshik v. St. Nicholas Cathedral, 363 U.S.
190, 80 S. Ct. 1037, 4 L. Ed. 2d 1140 (1960) (overturning, as
unconstitutional involvement in matters of church administration,
state court ruling that Patriarch of Moscow did not control Russian
Orthodox churches within North America); Presbyterian Church v.
Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S.
440, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969) (warning against civil
court involvement in church property litigation)).
After reviewing this Supreme Court precedent, the McClure
Court determined that applying Title VII to the employment
relationship between the Salvation Army and Mrs. McClure "would
8

involve an investigation and review . . . [that] would . . . cause
the State to intrude upon matters of church administration and
government which have so many times before been proclaimed to be
matters of a singular ecclesiastical concern." McClure, 460 F.2d
at 560. Thus, the Court held that applying Title VII to the
relationship under consideration "would result in an encroachment
by the State into an area of religious freedom which it is
forbidden to enter by the principles of the free exercise clause of
the First Amendment." Id. The Court therefore affirmed the
district court's dismissal of Mrs. McClure's claim.
Most of our sister circuits adopted the church-minister
exception articulated in McClure. See, e.g., Natal v. Christian
and Missionary Alliance, 878 F.2d 1575, 1577-78 (1st Cir. 1989);
Rayburn v. General Conf. of Seventh-day Adventists, 772 F.2d 1164,
1168-69 (4th Cir. 1985); Hutchinson v. Thomas, 789 F.2d 392, 393
(6th Cir. 1986); Young v. Northern Illinois Conf. of United
Methodist Church, 21 F.3d 184, 185 (7th Cir. 1994); Scharon v. St.
Luke's Episcopal Presbyterian Hosp., 929 F.2d 360, 363 (8th Cir.
1991); Minker v. Baltimore Annual Conf. of United Methodist Church,
894 F.2d 1354, 1358 (D.C. Cir. 1990). Although the Supreme Court
itself has never adopted the McClure exception, it is the law of
this circuit and much of the rest of the country.
B.
Reverend Combs contends in this appeal that the McClure
church-minister exception cannot stand in light of the Supreme
Court's decision in Employment Division, Department of Human
9

Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L.
Ed. 2d 876 (1990).
In Smith, Alfred Smith and Galen Black were fired by their
employer because of their sacramental use of peyote--a controlled
substance under Oregon law--within the Native American Church.
Oregon denied unemployment benefits to Smith and Black because they
were terminated for "misconduct"--a violation of Oregon criminal
law. Smith and Black argued that the Free Exercise Clause of the
First Amendment prohibited Oregon from denying them benefits solely
because they ingested peyote for sacramental purposes. Id. at 874-
77, 110 S. Ct. at 1597-99. In order to resolve this issue, the
Supreme Court considered whether Oregon was constitutionally
permitted to include the religious use of peyote within its general
criminal prohibition of that drug. Id. at 874, 110 S. Ct. at 1597.
The Supreme Court determined that Oregon's prohibition on all
peyote use did not violate the First Amendment: "the right of free
exercise does not relieve an individual of the obligation to comply
with a valid and neutral law of general applicability on the ground
that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes)." Id. at 879, 110 S. Ct. at 1600
(citations and internal quotation marks omitted). In arriving at
this conclusion, the Supreme Court specifically rejected the
"compelling state interest" test set forth in Sherbert v. Verner,
374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). The Court
then held that because Oregon was constitutionally permitted to
prohibit Smith's and Black's ingestion of peyote, Oregon was also
10

constitutionally permitted to deny them unemployment benefits when
their dismissal resulted from their use of the drug. Smith, 494
U.S. at 890, 110 S. Ct. at 1606.
Congress attempted to reverse Smith legislatively by passing
the Religious Freedom Restoration Act of 1993 ("RFRA"), Pub. L. No.
103-141, 107 Stat. 1488, codified at 42 U.S.C. � 2000bb et seq.
(1994), which granted religious organizations broad immunity from
neutrally applicable laws. One of the stated goals of RFRA was to
restore the compelling interest test from Sherbert that the Supreme
Court had rejected in Smith.
The Supreme Court, however, held RFRA to be unconstitutional.
In its 1997 decision in City of Boerne v. Flores, 521 U.S. 507, 117
S. Ct. 2157, 138 L. Ed. 2d 624 (1997), the Supreme Court adopted
its earlier analysis in Smith. In a passage now quoted by Reverend
Combs, the Court stated, "When the exercise of religion has been
burdened in an incidental way by a law of general application, it
does not follow that the persons affected have been burdened more
than other citizens, let alone burdened because of their religious
beliefs." Id. at --, 117 S. Ct. at 2171.
Reverend Combs's argument that McClure cannot stand in light
of the Supreme Court's decisions in Smith and Boerne is relatively
straightforward: First, in Smith and Boerne, the Supreme Court
held that the First Amendment does not bar the application of
facially neutral laws even when these laws burden the exercise of
religion. Second, McClure was based on the now-rejected
"compelling interest" test. For these reasons, Reverend Combs
11

argues that McClure no longer controls and therefore she should be
permitted to pursue her Title VII discrimination claim against
First United and the Central Texas Conference.
1.
A well-reasoned opinion from the D.C. Circuit recently
considered the precise question presented to us. In E.E.O.C. v.
Catholic University, 83 F.3d 455 (D.C. Cir. 1996), that court was
asked whether, in light of Smith, a professor who was also a
Catholic nun could sue Catholic University for sex discrimination
in the denial of her application for tenure.5 In resolving this
issue, the D.C. Circuit addressed the post-Smith validity of the
ministerial exception.6
The D.C. Circuit began its analysis by making the important
distinction between two different strands of free exercise law.
The court stated, "government action may burden the free exercise
of religion, in violation of the First Amendment, in two quite
different ways: by interfering with a believer's ability to observe
the commands or practices of his faith, . . . and by encroaching on
the ability of a church to manage its internal affairs." Id. at
460 (internal citations omitted). The court emphasized that the
Supreme Court has shown a particular reluctance to interfere with
5 The D.C. Circuit determined that the nun, Sister McDonough,
was included within the coverage of the ministerial exception.
Catholic University, 83 F.3d at 463-64.
6 The D.C. Circuit focuses on both McClure and Minker v.
Baltimore Annual Conference of United Methodist Church, 894 F.2d
1354, 1358 (D.C. Cir. 1990), in which the D.C. Circuit adopted the
ministerial exception.
12

a church's selection of its own clergy. Id. (citing Gonzalez v.
Roman Catholic Archbishop of Manila, 280 U.S. 1, 16, 50 S. Ct. 5,
7-8, 74 L. Ed. 131 (1929); Serbian Eastern Orthodox Diocese v.
Milivojevich, 426 U.S. 696, 717, 96 S. Ct. 2372, 2384, 49 L. Ed. 2d
151 (1976)).
The court concluded that Smith did not address the Free
Exercise Clause's protection to a church against government
encroachment into the church's internal management. Catholic
University, 83 F.3d at 461. Rather, Smith only addressed the
strand of Free Exercise Clause protection afforded an individual to
practice his faith. Thus, the Catholic University court determined
that the language in Smith that the plaintiff relied on--"the right
of free exercise does not relieve an individual of the obligation
to comply with a valid and neutral law of general applicability .
. . ," Smith, 494 U.S. at 879, 110 S. Ct. at 1600--did not mean
that a church, as opposed to an individual, is never entitled to
relief from a neutral law of general application.
The D.C. Circuit provided two main reasons for its conclusion.
First, the court stated that:
[T]he burden on free exercise that is addressed by the
ministerial exception is of a fundamentally different
character from that at issue in Smith and in the cases cited
by the [Supreme] Court in support of its holding. The
ministerial exception is not invoked to protect the freedom of
an individual to observe a particular command or practice of
his church. Rather it is designed to protect the freedom of
the church to select those who will carry out its religious
mission. Moreover, the ministerial exception does not present
the dangers warned of in Smith. Protecting the authority of
a church to select its own ministers free of government
interference does not empower a member of that church, by
virtue of his beliefs, to become a law unto himself. Nor does
13

the exception require judges to determine the centrality of
religious beliefs before applying a "compelling interest" test
in the free exercise field.
Catholic University, 83 F.3d at 462 (internal quotation marks and
internal citations omitted).
Second, the D.C. Circuit acknowledged that the Supreme Court
had rejected the "compelling interest" test cited by some courts
(including McClure) when invoking the ministerial exception. The
court observed, however, that many courts applying the exception
rely on a long line of Supreme Court cases standing for the
fundamental proposition that churches should be able to "decide for
themselves, free from state interference, matters of church
government as well as those of faith and doctrine." Catholic
University, 83 F.3d at 462 (quoting Kedroff, 344 U.S. at 116, 73 S.
Ct. at 154). The D.C. Circuit concluded, "we cannot believe that
the Supreme Court in Smith intended to qualify this century-old
affirmation of a church's sovereignty over its own affairs."
Catholic University, 83 F.3d at 463.
2.
We agree with both the reasoning and the conclusion of the
D.C. Circuit. Especially important is that court's distinction
between the two strands of free exercise cases--restrictions on an
individual's actions that are based on religious beliefs and
encroachments on the ability of a church to manage its internal
affairs. Reverend Combs acknowledges this distinction, but argues
that it does not determine the outcome of this case. Instead,
Reverend Combs contends that Smith and Boerne indicate that the
14

constitutional protection for religious freedom is impermissibly
broadened when it grants churches immunity from employment actions
by clergy when such actions are not based on questions of religious
dogma or ecclesiastical law. We disagree.
Smith's language is clearly directed at the first strand of
free exercise law, where an individual contends that, because of
his religious beliefs, he should not be required to conform with
generally applicable laws. The concerns raised in Smith are quite
different from the concerns raised by Reverend Combs's case, which
pertains to interference in internal church government. We concur
wholeheartedly with the D.C. Circuit's conclusion that Smith, which
concerned individual free exercise, did not purport to overturn a
century of precedent protecting the church against governmental
interference in selecting its ministers.
We also disagree with Reverend Combs's argument that McClure
is no longer good law because it relied on the "compelling state
interest" test rejected by the Supreme Court in Smith. Our review
of McClure reveals that although this Court presented the
"compelling state interest" test in its general discussion of First
Amendment law, the test is never applied or even mentioned later in
the opinion. Thus, it is unclear how much this Court was actually
relying on this test. Moreover, even if the McClure panel was
relying on the Sherbert test, we hold that the church-minister
exception survives Sherbert's demise. As the D.C. Circuit observed
in Catholic University, the primary doctrinal underpinning of the
church-minister exception is not the Sherbert test, but the
15

principle that churches must be free "to decide for themselves,
free from state interference, matters of church government as well
as those of faith and doctrine." Kedroff, 344 U.S. at 116, 73 S.
Ct. at 154 (cited by this Court in McClure, 460 F.3d at 560, and by
the D.C. Circuit in Catholic University, 83 F.3d at 462). This
fundamental right of churches to be free from government
interference in their internal management and administration has
not been affected by the Supreme Court's decision in Smith and the
demise of Sherbert.
3.
The final point to address is Reverend Combs's argument that
Catholic University is distinguishable from this case because a
resolution of Sister McDonough's claim in Catholic University would
have required an evaluation of church doctrine, while there would
be no such need in this case.
Sister McDonough was denied tenure at Catholic University at
least in part because the reviewing committees decided that her
teaching and scholarship failed to meet the standards required of
a tenured member of Catholic University's Canon Law Faculty.
Indeed at trial, the parties introduced an "extensive body of
conflicting testimony" concerning the quality of Sister McDonough's
publications. Catholic University, 83 F.3d at 465. We agree that
the district court would have been placed in an untenable position
had it been required to evaluate the merits of Sister McDonough's
canon law scholarship. Having a civil court determine the merits
of canon law scholarship would be in violent opposition to the
16

constitutional principle of the separation of church and state.
See Presbyterian Church v. Mary Elizabeth Blue Hill Memorial
Presbyterian Church, 393 U.S. 440, 445, 89 S. Ct. 601, 604, 21 L.
Ed. 2d 658 (1969) (civil courts are not permitted to determine
ecclesiastical questions). Reverend Combs argues that because the
resolution of her claim, in contrast to that of Sister McDonough,
requires no evaluation or interpretation of religious doctrine, her
claim should be allowed to proceed.
Not long after our decision in McClure, this Court rejected a
similar argument in Simpson v. Wells Lamont Corp., 494 F.2d 490
(5th Cir. 1974).7 As this Court observed in Simpson, the First
Amendment concerns are two-fold. 494 F.2d at 493-94. The first
concern is that secular authorities would be involved in evaluating
or interpreting religious doctrine. Id. The second quite
independent concern is that in investigating employment
discrimination claims by ministers against their church, secular
authorities would necessarily intrude into church governance in a
manner that would be inherently coercive, even if the alleged
discrimination were purely nondoctrinal. Id. This second concern
is the one present here. This second concern alone is enough to
bar the involvement of the civil courts.
7 In Simpson, the plaintiff argued that the McClure exception
should not apply to his racial discrimination claim because it was
unrelated to church dogma. This Court disagreed, however, and
determined that the First Amendment protection relative to the
relationship between a church and a minister extended beyond purely
dogmatic issues. Id. at 493-94; see also Kedroff v. St. Nicholas
Cathedral, 344 U.S. 94, 116, 73 S. Ct. 143, 154-55, 97 L. Ed. 120
(1953).
17

In short, we cannot conceive how the federal judiciary could
determine whether an employment decision concerning a minister was
based on legitimate or illegitimate grounds without inserting
ourselves into a realm where the Constitution forbids us to tread,
the internal management of a church.
Conclusion
This case involves the interrelationship between two important
governmental directives--the congressional mandate to eliminate
discrimination in the workplace and the constitutional mandate to
preserve the separation of church and state. As this Court
previously observed in McClure, both of these mandates cannot
always be followed. In such circumstances, the constitutional
mandate must override the mandate that is merely congressional.
Thus, we are persuaded that the First Amendment continues to give
the church the right to select its ministers free from Title VII's
restrictions.
Because the district court correctly dismissed Reverend
Combs's suit, its judgment is AFFIRMED.
18