ROMINGER LEGAL
Ninth Circuit Court of Appeals Opinions - 9th Circuit
Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL HEADLINES - CASE LAW - LEGAL FORMS
NOT FINDING WHAT YOU NEED? -CLICK HERE
This opinion or court case is from the Ninth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH
COURT REPORTERS
PRIVATE INVESTIGATORS
PROCESS SERVERS
DOCUMENT RETRIEVERS
EXPERT WITNESSES

 

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

 
Web Rominger Legal

Legal News - Legal Headlines

 


US Court of Appeals
FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN BOLLARD,
Plaintiff-Appellant,


v.

THE CALIFORNIA PROVINCE OF THE
                                                     No. 98-16194
SOCIETY OF JESUS; THE MARYLAND
PROVINCE OF THE SOCIETY OF JESUS;
                                                     D.C. No.
THE OREGON PROVINCE  OF THE
                                                     CV-97-03006-SI
SOCIETY OF JESUS; THE JESUIT
                                                     OPINION
CONFERENCE; FATHER JOHN PRIVETT,
S.J.; FATHER ANDREW SOTELO, S.J.;
FATHER THOMAS GLEESON, S.J.;
FATHER ANTON HARRIS, S.J.,
Defendants-Appellees.


Appeal from the United States District Court
for the Northern District of California
Susan Yvonne Illston, District Judge, Presiding


Argued and Submitted
June 17, 1999--San Francisco, California


Filed December 1, 1999

Before: David R. Thompson and William A. Fletcher,
Circuit Judges, and Susan Oki Mollway, 1 District Judge.


Opinion by Judge William A. Fletcher

_________________________________________________________________
1 Honorable Susan Oki Mollway, United States District Judge for the
District of Hawaii, sitting by designation.
                               14057


COUNSEL

James M. Wagstaff and Andrew I. Dilworth, Cooper, White
& Cooper, San Francisco, California, for the plaintiff-
appellant.


Paul E. Gaspari and Lawrence R. Jannuzzi, Tobin & Tobin,
San Francisco, California, for defendants-appellees the Cali-
fornia Province of the Society of Jesus, the Oregon Province
of the Society of Jesus, Father John Privett, S.J., and the Jesuit
Conference.


Deborah K. Miller, Landels Ripley & Diamond, San Fran-
cisco, California; Jeremiah C. Collins, Paul A. Murphy and


                               14063


Robert A. Van Kirk, Williams & Connolly, Washington,
D.C., for defendants-appellees the Maryland Province of the
Society of Jesus and Father Thomas Gleeson, S.J.


Michael J. Estep, Greene, Chauvel, Descalso & Tully, San
Mateo, California, for defendant-appellee Father Andrew
Sotelo, S.J.


William F. Terheyden, Littler Mendelson, San Francisco, Cal-
ifornia, for defendant-appellee Father Anton Harris, S.J.


_________________________________________________________________


SUMMARY

The summary, which does not constitute a part of the opinion of the court,
is copyrighted C 1999 by West Group.
_________________________________________________________________


Individual Rights/Civil Rights

The court of appeals reversed a judgment of the district
court. The court held that the "ministerial exception" to Title
VII of the Civil Rights Act of 1964 is not a per se bar to a
novice minister's claim of sexual harassment against a reli-
gious organization.


In a complaint filed with the California Department of Fair
Employment and Housing, appellant John Bollard alleged that
while he was a novice in appellee California Province of the
Society of Jesus (Jesuits), he was sexually harassed by superi-
ors at two Jesuit schools. Bollard claimed that although he
reported the harassment to Jesuit officials, they took no cor-
rective action. The harassing conduct was so severe, Bollard
claimed, that he was forced to leave the Jesuit order before
taking his vows.


Bollard received a right-to sue-letter from the Department
and brought a damages action in federal court under Title VII
of the Civil Rights Act of 1964. The complaint also alleged
claims under California law for failure to investigate, con-
structive discharge, and breach of contract.


The district court granted a defense motion to dismiss
under Fed. R. Civ. P. 12(b)(1) for want of subject-matter
jurisdiction, concluding that the "ministerial exception" to
Title VII applied. The court also declined to exercise supple-
mental jurisdiction over Bollard's state-law claims. Bollard
appealed.


[1] The ministerial exception to Title VII precludes civil
courts from adjudicating employment-discrimination suits by
ministers against the church or religious institution employing
them. [2] The source of the exception is the Constitution
rather than the statute. Title VII provides two exemptions


                               14058


from its non-discrimination mandate for religious groups. One
permits a religious entity to restrict employment connected
with the carrying on of its activities to members of its own
faith. The other permits parochial schools to do the same. But
neither removes race, sex, or national origin as an impermissi-
ble basis of discrimination against employees of religious
institutions. Nor do they single out ministerial employees for
lesser protections than those enjoyed by other church employ-
ees.


[3] Courts have uniformly concluded that the Free Exercise
and Establishment Clauses of the First Amendment require a
narrowing construction of Title VII in order to insulate the
relationship between a religious organization and its ministers
from constitutionally impermissible interference by the gov-
ernment.


[4] In determining whether the proposed application of a
statute would violate the Free Exercise Clause, courts must
weigh three factors: (1) the magnitude of the statute's impact
on the exercise of the religious belief; (2) the existence of a
compelling state interest justifying the burden imposed on the
exercise of the religious belief; and (3) the extent to which
recognition of an exemption from the statute would impede
the objectives sought to be advanced by the state.


[5] Some religious interests under the Free Exercise Clause
are so strong that no compelling state interest justifies govern-
ment intrusion into the ecclesiastical sphere. For example, a
secular court may not adjudicate matters that necessarily
require it to decide among competing interpretations of
church doctrine, or other matters of an essentially ecclesiasti-
cal nature, even if they also touch on secular rights. [6] A
church's selection of its clergy is one such core matter of
ecclesiastical self-governance with which the state may not
constitutionally interfere.


[7] The scope of the ministerial exception is limited to what
is necessary to comply with the First Amendment. For exam-


                               14059


ple, it does not apply to lay employees of a religious institu-
tion if they are not serving the function of ministers. In the
case of lay employees, the particularly strong religious inter-
ests surrounding a church's choice of its representative are
missing, and courts have concluded that applying Title VII is
constitutionally permissible.


[8] As in the case of lay employees, the Free Exercise ratio-
nales supporting an exception to Title VII were missing in this
case. The Jesuits did not offer a religious justification for the
harassment Bollard alleged; they condemned it as inconsistent
with their values and beliefs. There was thus no danger that,
by allowing this suit to proceed, secular courts would be
thrust into the constitutionally untenable position of passing
judgment on questions of religious faith or doctrine. The Jesu-
its' disavowal of the harassment also assured that application
of Title VII in this context would have no significant impact
on their religious beliefs or doctrines.


[9] Moreover, this was not a case about the Jesuit order's
choice of representative. Bollard did not complain that the
Jesuits refused to ordain him or engaged him in any other
adverse personnel action. It was true that Bollard alleged con-
structive discharge, but unlike actual discharge, constructive
discharge did not refer to a decision by the Jesuits to termi-
nate Bollard's employment. In the context of Bollard's claim,
constructive discharge functioned only to signal his estima-
tion of the severity of the harassment and to lay the founda-
tion for including lost wages in a calculation of damages.


[10] The only relevant decision that could reasonably be
attributed to the Jesuits was the decision not to intervene to
stop or curtail the sexual harassment Bollard reported. The
Free Exercise Clause rationale for protecting a church's per-
sonnel decisions concerning its ministers did not apply
because the Jesuits did not claim that allowing harassment to
continue unrectified was a method of choosing their clergy.
Because there was no protected-choice rationale at issue, the


                               14060


court of appeals intruded no further on church autonomy in
allowing this case to proceed than it would, for example, in
allowing parishioners' suits against a church for negligent
supervision of ministers who have subjected them to inappro-
priate sexual behavior.


[11] Because the Jesuit order doctrinally disavowed the
harassment, the danger that application of Title VII would
interfere with its religious faith or doctrine was particularly
low. While applying any laws to religious institutions neces-
sarily interferes with the autonomy churches would otherwise
enjoy, this sort of generalized and diffuse concern for church
autonomy does not exempt them from the operation of secular
laws. Applying Title VII in this case would not have an
unconstitutional impact on the free exercise of the Jesuits'
religious beliefs. At the same time, the strength of the govern-
ment's interest in protecting employees against sexual harass-
ment was a matter of the highest priority. Bollard's claim did
not run afoul of the Free Exercise Clause.


[12] The Establishment Clause serves as a separate consti-
tutional basis for the ministerial exception. The Supreme
Court has articulated a three-part test to determine whether a
statute violates the Establishment Clause. First, the statute
must have a secular legislative purpose; second, its principal
or primary effect must be one that neither advances nor inhib-
its religion; finally, the statute must not foster an excessive
government entanglement with religion. The Ninth Circuit has
held that Title VII has an obvious secular legislative purpose,
and that its principal effect neither advances nor inhibits reli-
gion.


[13] Entanglement has both substantive and procedural
dimensions. On a substantive level, applying the statute to the
clergy-church employment relationship creates a constitution-
ally impermissible entanglement with religion if the church's
freedom to choose its ministers is at stake. Nor may a court
be in the position of having to evaluate competing opinions on


                               14061


religious subjects. But such substantive concerns were absent
from this case.


[14] As a procedural matter, entanglement might also result
from a protracted legal process pitting the church and state as
adversaries. [15] In a Title VII case, the dangers of procedural
entanglement are most acute when there is also a substantive
entanglement at issue. When such a concern is absent, proce-
dural entanglement considerations are reduced to the constitu-
tional propriety of subjecting a church to the expense and
indignity of the civil legal process. In this case, the entangle-
ment between church and state that would result if Bollard
pursued his claim was not sufficiently significant to violate
the Establishment Clause.


[16] The issue in this case was whether Bollard was sub-
jected to sex-based harassment by his superiors that was suffi-
ciently severe or pervasive as to be actionable under Title VII.
The Jesuit order might assert as an affirmative defense that it
exercised reasonable care to prevent and correct the harass-
ment, and that Bollard failed to take advantage of these
opportunities to avoid or limit the harm. Nothing in the char-
acter of this defense would require a jury to evaluate religious
doctrine, or the "reasonableness" of the religious practices
followed by the Jesuit order. Instead, the jury would have to
make judgments about the nature and severity of the harass-
ment, and what measures, if any, were taken by the Jesuits to
prevent or correct it. The limited nature of the inquiry, com-
bined with the ability of the district court to control discovery,
could prevent a wide-ranging intrusion into sensitive religious
matters.


[17] Further, Bollard sought damages as his sole remedy.
Nor, beyond filing his initial claim, awaiting receipt of the
right-to-sue letter, and filing his complaint in district court,
had Bollard involved any government entity. Given the lim-
ited and retrospective nature of the remedy Bollard sought,


                               14062


none of these activities would be involved in monitoring
church activities.


[18] The procedural entanglement between church and state
that would result from allowing Bollard to pursue his claim
was no greater than that attendant on any other civil suit a pri-
vate litigant might pursue against a church. Accordingly, there
was no Establishment Clause violation in applying Title VII
to this case.


[19] Because Bollard stated a claim under Title VII, dis-
missal of his state-law claims was no longer warranted. [20]
Whether the ministerial exception applied to any state-law
cause of action depended on the nature of the claim and its
associated remedy. The district court would be in a position
to undertake that analysis on remand.


[21] Bollard asserted a non-frivolous federal claim. Even if
the district court had been correct in dismissing it, the dis-
missal should have been on the merits under Rule 12(b)(6) for
failure to state a claim for which relief can be granted.


_________________________________________________________________


OPINION

W. FLETCHER, Circuit Judge:

We must decide in this case whether the so-called
"ministerial exception" to Title VII of the Civil Rights Act of
1964 bars plaintiff John Bollard's claim of sexual harassment
against the Jesuit order. Simply stated, the ministerial excep-
tion insulates a religious organization's employment decisions
regarding its ministers from judicial scrutiny under Title VII.
The Free Exercise and Establishment Clauses of the First
Amendment compel this exception to the otherwise fully
applicable commands of Title VII when the disputed employ-
ment practices involve a church's freedom to choose its min-
isters or to practice its beliefs. Because Title VII applies
without a constitutionally compelled exception where, as
here, the defendant church is neither exercising its constitu-
tionally protected prerogative to choose its ministers nor
embracing the behavior at issue as a constitutionally protected
religious practice, we find that plaintiff Bollard has stated a
claim sufficient to overcome a motion to dismiss under Fed-

eral Rule of Civil Procedure 12(b)(6).

I. Background

In August 1988, plaintiff John Bollard became a novice of
the Society of Jesus, an order of Roman Catholic priests more


                               14064


commonly known as the Jesuits. As a novice, Bollard began
the process of formation, during which men train and study to
be ordained. Bollard alleges that, between 1990 and 1996, he
was sexually harassed by his Jesuit superiors at the St. Igna-
tius College Preparatory School in San Francisco and at the
Jesuit School of Theology in Berkeley, California. He claims
that various superiors at these two institutions sent him porno-
graphic material, made unwelcome sexual advances, and
engaged him in inappropriate and unwelcome sexual discus-
sions. Between mid-1995 and 1996, Bollard reported the
harassment to superiors within the Jesuit order, but, so far as
he knows, his reports prompted no corrective action. He
alleges that the harassing conduct was so severe that he was
forced to leave the Jesuit order in December 1996 before tak-
ing vows to become a priest.


Bollard filed a timely complaint of sexual harassment with
the California Department of Fair Employment and Housing,
which automatically cross-filed his complaint with the federal
Equal Employment Opportunity Commission. He received a
right-to-sue letter in January 1997 and filed a complaint in
federal district court for the Northern District of California the
following August. His complaint asserts a federal cause of
action for sexual harassment in violation of section 703(a) of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.S 2000e-
2(a), as well as state law claims for failure to investigate, for
constructive wrongful discharge, and for breach of contract.


The district court found the ministerial exception applicable
and held that Bollard had no valid claim under Title VII. It
dismissed Bollard's Title VII claim for want of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
and declined to exercise supplemental jurisdiction over his
state law claims pursuant to 28 U.S.C. S 1367(c)(3). We
review de novo a dismissal for lack of subject matter jurisdic-
tion under Rule 12(b)(1), see Crist v. Leippe , 138 F.3d 801,
803 (9th Cir. 1998), which is the same standard under which
we review a dismissal for failure to state a claim under Fed-


                               14065


eral Rule of Civil Procedure 12(b)(6), see Steckman v. Hart
Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). At this
stage in the proceedings, we take the allegations in Bollard's
complaint as true. See Big Bear Lodging Ass'n v. Snow Sum-
mit, Inc., 182 F.3d 1096, 1099 (9th Cir. 1999).


II. The Ministerial Exception to Title VII

[1] The ministerial exception to Title VII "precludes civil
courts from adjudicating employment discrimination suits by
ministers against the church or religious institution employing
them." EEOC v. Catholic Univ. of Am., 83 F.3d 455, 461
(D.C. Cir. 1996). We have previously acknowledged the exis-
tence of such an exception in other circuits, but we have never
been asked to define its scope or to apply it. See EEOC v.
Fremont Christian Sch., 781 F.2d 1362, 1369-70 (9th Cir.
1986); EEOC v. Pacific Press Publ'g Ass'n, 676 F.2d 1272,
1278 (9th Cir. 1982).


[2] The source of the ministerial exception is the Constitu-
tion rather than the statute. See, e.g. , Fremont Christian Sch.,
781 F.2d at 1365; Pacific Press, 676 F.2d at 1276; Rayburn
v. General Conf. of Seventh-Day Adventists, 772 F.2d 1164,
1167 (4th Cir. 1985). Insofar as race, sex, and national origin
are concerned, the text of Title VII treats an employment dis-
pute between a minister and his or her church like any other
employment dispute. The statute does provide two exemp-
tions from its non-discrimination mandate for religious
groups. One permits a religious entity to restrict employment
"connected with the carrying on . . . of its activities" to mem-
bers of its own faith, 42 U.S.C. S 2000e-1(a); the other per-
mits parochial schools to do the same, id.S 2000e-2(e). But
neither of these statutory exceptions removes race, sex, or
national origin as an impermissible basis of discrimination
against employees of religious institutions. Nor do they single
out ministerial employees for lesser protections than those

enjoyed by other church employees.

                               14066


[3] Despite the lack of a statutory basis for the ministerial
exception, and despite Congress' apparent intent to apply
Title VII to religious organizations as to any other employer,
courts have uniformly concluded that the Free Exercise and
Establishment Clauses of the First Amendment require a nar-
rowing construction of Title VII in order to insulate the rela-
tionship between a religious organization and its ministers
from constitutionally impermissible interference by the gov-
ernment. See, e.g., Combs v. Central Texas Annual Conf. of
the United Methodist Church, 173 F.3d 343 (5th Cir. 1999);
Catholic Univ., 83 F.3d 455; Young v. Northern Ill. Conf. of
United Methodist Church, 21 F.3d 184 (7th Cir. 1994);
Scharon v. St. Luke's Episcopal Presbyterian Hosps. , 929
F.2d 360 (8th Cir. 1991); Rayburn, 772 F.2d 1164; McClure
v. Salvation Army, 460 F.2d 553 (5th Cir. 1972). These First
Amendment restrictions on Title VII provide important pro-
tections to churches that seek to choose their representatives
free from government interference and according to the dic-

tates of faith and conscience.

A. The Free Exercise Clause

[4] The Free Exercise Clause of the United States Constitu-
tion provides that "Congress shall make no law . . . prohibit-
ing the free exercise [of religion]." U.S. Const. amend. I. The
Free Exercise Clause restricts the government's ability to
intrude into ecclesiastical matters or to interfere with a
church's governance of its own affairs. See, e.g., Kedroff v. St.
Nicholas Cathedral of the Russian Orthodox Church in North
America, 344 U.S. 94, 116 (1952) (explaining that the Free
Exercise Clause protects the power of religious organizations
"to decide for themselves, free from state interference, matters
of church government as well as those of faith and doctrine");
see also Kreshik v. St. Nicholas Cathedral of the Russian
Orthodox Church of North America, 363 U.S. 190, 191
(1960) (per curiam) (forbidding the courts as well as the legis-
lature from interfering with Free Exercise rights). In deter-
mining whether the proposed application of a statute would


                               14067


violate the Free Exercise Clause, courts must weigh three fac-
tors: "(1) the magnitude of the statute's impact upon the exer-
cise of the religious belief, (2) the existence of a compelling
state interest justifying the burden imposed upon the exercise
of the religious belief, and (3) the extent to which recognition
of an exemption from the statute would impede the objectives
sought to be advanced by the state." Pacific Press, 676 F.2d
at 1279; see also Sherbert v. Verner, 374 U.S. 398, 403-07
(1963).


[5] Some religious interests under the Free Exercise Clause
are so strong that no compelling state interest justifies govern-
ment intrusion into the ecclesiastical sphere. A secular court
may not, for example, adjudicate matters that necessarily
require it to decide among competing interpretations of
church doctrine, or other matters of an essentially ecclesiasti-
cal nature, even if they also touch upon secular rights. See,
e.g., Serbian Eastern Orthodox Diocese v. Milivojevich, 426
U.S. 696, 713 (1976) (reversing the Illinois Supreme Court's
determinations regarding several matters of internal church
governance, because "religious controversies are not the
proper subject of civil court inquiry"); Presbyterian Church
v. Mary Elizabeth Blue Hull Memorial Presbyterian Church,
393 U.S. 440, 449 (1969) (explaining that "First Amendment
values are plainly jeopardized when church property litigation
is made to turn on the resolution by civil courts of controver-
sies over religious doctrine and practice"); Kedroff, 344 U.S.

at 115 (prohibiting judicial resolution of the question of which
church patriarch was entitled to use St. Nicholas Cathedral
because it is "strictly a matter of ecclesiastical government");
Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S.
1, 16 (1929) (holding that a secular court may not decide
competing claims to a chaplaincy, because "the appointment
is a canonical act, [and] it is the function of the church author-
ities to determine what the essential qualifications of a chap-
lain are and whether the candidate possesses them"); Watson
v. Jones, 80 U.S. (13 Wall.) 679, 729 (1871) ("It is of the
essence of these religious unions, and of their right to estab-


                               14068


lish tribunals for the decision of questions arising among
themselves, that those decisions should be binding in all cases
of ecclesiastical cognizance, subject only to such appeals as
the organism itself provides for.").


[6] A church's selection of its own clergy is one such core
matter of ecclesiastical self-governance with which the state
may not constitutionally interfere. See, e.g., Milivojevich, 426
U.S. at 717; Kedroff, 344 U.S. at 116; Gonzalez, 280 U.S. at
16. A church must retain unfettered freedom in its choice of
ministers because ministers represent the church to the peo-
ple. As the Fifth Circuit has written, they act as the church's
"lifeblood." McClure, 460 F.2d at 558. Indeed, the ministerial
relationship lies so close to the heart of the church that it
would offend the Free Exercise Clause simply to require the
church to articulate a religious justification for its personnel
decisions. See Rayburn, 772 F.2d at 1169 ("[T]he free exer-
cise clause of the First Amendment protects the act of a deci-
sion rather than a motivation behind it."); see also Young, 21
F.3d at 186; Scharon, 929 F.2d at 363. In the words of the
Fifth Circuit,


      [W]e 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.


Combs, 173 F.3d at 350.

[7] Because the plain language of Title VII purports to
reach a church's employment decisions regarding its minis-
ters, courts have had to carve a ministerial exception out of
Title VII in order to reconcile the statute with the Constitu-
tion. But the scope of the ministerial exception to Title VII is
limited to what is necessary to comply with the First Amend-
ment. For example, it does not apply to lay employees of a


                               14069


religious institution if they are not serving the function of
ministers. See Fremont Christian Sch., 781 F.2d 1362; Pacific
Press, 676 F.2d 1272. In the case of lay employees, the partic-
ularly strong religious interests surrounding a church's choice
of its representative are missing, and we have concluded that
applying Title VII is constitutionally permissible.


[8] In this case, as in the case of lay employees, the Free
Exercise rationales supporting an exception to Title VII are
missing. The Jesuits do not offer a religious justification for
the harassment Bollard alleges; indeed, they condemn it as
inconsistent with their values and beliefs. There is thus no
danger that, by allowing this suit to proceed, we will thrust
the secular courts into the constitutionally untenable position
of passing judgment on questions of religious faith or doc-
trine. The Jesuits' disavowal of the harassment also reassures
us that application of Title VII in this context will have no
significant impact on their religious beliefs or doctrines. See
Fremont Christian Sch., 781 F.2d at 1368; Pacific Press, 676
F.2d at 1279.


[9] Moreover, this is not a case about the Jesuit order's
choice of representative, a decision to which we would simply
defer without further inquiry. Bollard does not complain that
the Jesuits refused to ordain him or engaged in any other
adverse personnel action. Cf. McClure, 460 F.2d at 559 ("Just
as the initial function of selecting a minister is a matter of
church administration and government, so are the functions
which accompany such a selection. It is unavoidably true that
these include the determination of a minister's salary, his
place of assignment, and the duty he is to perform in the fur-
therance of the religious mission of the church."). On the con-
trary, according to the allegations in Bollard's complaint, the
Jesuit order has enthusiastically encouraged Bollard's pursuit
of the priesthood. It is true that Bollard alleges constructive
discharge, but unlike actual discharge, constructive discharge
does not refer to a decision by the Jesuits to terminate Bol-
lard's employment. Instead, constructive discharge in the con-


                               14070


text of Bollard's Title VII sexual harassment claim functions
only to signal his estimation of the severity of the harassment
and to lay the foundation for including lost wages in a calcu-
lation of damages.


[10] The only relevant decision that we can reasonably
attribute to the Jesuits on the facts alleged here is the decision
not to intervene to stop or curtail the sexual harassment Bol-
lard reported. See Black v. Snyder, 471 N.W.2d 715, 723
(Minn. Ct. App. 1991) (Randall, J., dissenting). But, in our
view, it strays too far from the rationale of the Free Exercise
Clause to extend constitutional protection to this sort of disci-
plinary inaction simply because a minister is the target as well
as the agent of the harassing activity. That Bollard has sued
under an employment discrimination statute does not mean
that the aspect of the church-minister employment relation-
ship that warrants heightened constitutional protection -- a
church's freedom to choose its representatives -- is present.
The Free Exercise Clause rationale for protecting a church's
personnel decisions concerning its ministers is the necessity
of allowing the church to choose its representatives using
whatever criteria it deems relevant. That rationale does not

apply here, for the Jesuits most certainly do not claim that
allowing harassment to continue unrectified is a method of
choosing their clergy. Because there is no protected-choice
rationale at issue, we intrude no further on church autonomy
in allowing this case to proceed than we do, for example, in
allowing parishioners' civil suits against a church for the neg-
ligent supervision of ministers who have subjected them to
inappropriate sexual behavior. See Martinelli v. Bridgeport
Roman Catholic Diocesan Corp., 10 F. Supp. 2d 138 (D.
Conn. 1998); Nutt v. Norwich Roman Catholic Diocese, 921
F. Supp. 66 (D. Conn. 1995); Moses v. Diocese of Colorado,
863 P.2d 310 (Colo. 1993).


[11] Thus, we believe that we must apply the Sherbert bal-
ancing test in roughly the same manner as in cases involving
lay employees in order to determine whether the application


                               14071


of Title VII in this case would violate the Free Exercise
Clause. We conclude that it would not. Because the Jesuit
order doctrinally disavows the harassment, the danger that the
application of Title VII in this case will interfere with its reli-
gious faith or doctrine is particularly low. And while we rec-
ognize that applying any laws to religious institutions
necessarily interferes with the unfettered autonomy churches
would otherwise enjoy, this sort of generalized and diffuse
concern for church autonomy, without more, does not exempt
them from the operation of secular laws. Otherwise, churches
would be free from all of the secular legal obligations that
currently and routinely apply to them. For these reasons, we
do not think that applying Title VII in the circumstances of
this case will have an unconstitutional impact on the free
exercise of the Jesuits' religious beliefs. At the same time, the
strength of the government's interest, expressed in the text of
Title VII, in protecting employees against sexual harassment

is difficult to overstate. As we have said previously, it is a
matter of the "highest priority." Pacific Press, 676 F.2d at
1280. Further, we know from the text of Title VII that Con-
gress intended it to apply to churches. Where the church pro-
vides no doctrinal nor protected-choice based rationale for its
alleged actions, and indeed expressly disapproves of the
alleged actions, a balancing of interests strongly favors appli-
cation of the statute. We therefore conclude that Bollard's
sexual harassment claim does not run afoul of the Free Exer-
cise Clause.


B. The Establishment Clause

[12] The Establishment Clause serves as a separate consti-
tutional basis for the ministerial exception to Title VII. It pro-
vides that "Congress shall make no law respecting an
establishment of religion . . ." U.S. Const. amend. I. In Lemon
v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court articu-
lated a three-part test to determine whether a statute violates
the Establishment Clause: "First, the statute must have a secu-
lar legislative purpose; second, its principal or primary effect


                               14072


must be one that neither advances nor inhibits religion;
finally, the statute must not foster an excessive government
entanglement with religion." Id. at 612-13 (internal citations
and quotations omitted).2 This court has already held that Title
VII has an obvious secular legislative purpose, and that its
principal effect neither advances nor inhibits religion. Pacific
Press, 676 F.2d at 1281-82. The only open question is
whether applying Title VII in the circumstances of this case
would foster an impermissible government entanglement with
religion.


[13] Entanglement has both substantive and procedural
dimensions. On a substantive level, applying the statute to the
clergy-church employment relationship creates a constitution-
ally impermissible entanglement with religion if the church's
freedom to choose its ministers is at stake. A religious organi-
zation's decision to employ or to terminate employment of a
minister is at the heart of its religious mission. The
"determination of `whose voice speaks for the church' is per
se a religious matter . . . . We cannot imagine an area of
inquiry less suited to a temporal court for decision; evaluation
of the `gifts and graces' of a minister must be left to ecclesias-
tical institutions." Minker v. Baltimore Annual Conf. of
United Methodist Church, 894 F.2d 1354, 1356-57 (D.C. Cir.
1990) (holding that the First Amendment prevented a claim
under the federal Age Discrimination in Employment Act).
"The application of Title VII to employment decisions of this
nature would result in an intolerably close relationship
_________________________________________________________________

2 We realize that dissatisfaction with the Lemon test has led several Jus-
tices to advocate alternative analytical frameworks, see, e.g., Lee v.
Weisman, 505 U.S. 577 (1992) (Kennedy, J.) (advocating and applying a
coercion test); Lynch v. Donnelly, 465 U.S. 668, 688-94 (1984)
(O'Connor, J., concurring) (advocating adoption of an endorsement test).
A new Establishment Clause test may well be on the horizon. See
generally Kent Greenawalt, Quo Vadis: The Status and Prospects of
"Tests" Under the Religion Clauses, 1995 Sup. Ct . Rev. 323, 359-60.
Still, because the Court has not yet reached consensus on Lemon's succes-
sor, we continue to apply its test.


                               14073


between church and state . . . ." Rayburn, 772 F.2d at 1170.
Nor may a court be in the "impermissible position of having
`to evaluate . . . competing opinions on religious subjects.' "
Catholic Univ., 83 F.3d at 465 (applying the ministerial
exception to Title VII in a case involving the denial of tenure
to a professor of canon law). But as we have explained above
in discussing the Free Exercise Clause, such substantive con-
cerns are absent from this case.


[14] As a procedural matter, "entanglement might also
result from a protracted legal process pitting church and state
as adversaries . . . ." Rayburn, 772 F.2d at 1171; see also
NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502
(1979) ("It is not only the conclusions that may be reached by
the Board which may impinge on rights guaranteed by the
Religion Clauses, but also the very process of inquiry leading
to findings and conclusions."). As the Fourth Circuit
explained in Rayburn,


      A Title VII action is potentially a lengthy proceed-
      ing, involving state agencies and commissions, the
      EEOC, the federal trial courts and courts of appeal.
      Church personnel and records would inevitably
      become subject to subpoena, discovery, cross-
      examination, the full panoply of legal process
      designed to probe the mind of the church in the
      selection of its ministers. The remedies that a district
      court may impose, 42 U.S.C. S 2000e-5(g) (1982),
      may be far-reaching in their impact upon religious
      organizations. Even after entry of judgment, ques-
      tions of compliance may result in continued court
      surveillance of the church's policies and decisions.


772 F.2d at 1171. Of this list of concerns, we believe that the
potential for protracted government surveillance of church
activities poses the gravest concern under the Establishment
Clause. See, e.g., Aguilar v. Felton, 473 U.S. 402, 413 (1985),
overruled on other grounds by Agostini v. Felton, 521 U.S.


                               14074


203 (1997) ("[P]ervasive monitoring by public authorities . . .
infringes precisely those Establishment Clause values at the
root of the prohibition of excessive entanglement.").


[15] In a Title VII case, the dangers of procedural entangle-
ment are most acute where there is also a substantive entan-
glement at issue. See Catholic Univ., 83 F.3d at 467; Scharon,
929 F.2d at 363; Rayburn, 772 F.2d at 1171. Where such a
concern is absent, procedural entanglement considerations are
reduced to the constitutional propriety of subjecting a church
to the expense and indignity of the civil legal process. In this
case, we believe that the entanglement between church and
state that would result if Bollard pursued his sexual harass-
ment claim is not sufficiently significant to violate the Estab-
lishment Clause.


[16] The issue in the case is whether Bollard was subjected
to sex-based harassment by his superiors that was sufficiently
severe or pervasive as to be actionable under Title VII. See
Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257, 2264, 2270
(1998). The Jesuit order may assert as an affirmative defense
that it exercised reasonable care to prevent and correct the
harassment, and that Bollard failed to take advantage of these
opportunities to avoid or limit harm. Id. at 2270. This is a
restricted inquiry. Nothing in the character of this defense will
require a jury to evaluate religious doctrine or the
"reasonableness" of the religious practices followed within
the Jesuit order. Instead, the jury must make secular judg-
ments about the nature and severity of the harassment and
what measures, if any, were taken by the Jesuits to prevent or
correct it. The limited nature of the inquiry, combined with
the ability of the district court to control discovery, can pre-
vent a wide-ranging intrusion into sensitive religious matters.


[17] Further, Bollard seeks damages as his sole remedy. He
seeks neither reinstatement nor any other equitable relief that
might require continuing court surveillance. Nor, beyond fil-
ing his initial claim, awaiting receipt of the standard right-to-


                               14075


sue letter, and filing his complaint in district court, has Bol-
lard involved any government entity. Given the limited and
retrospective nature of the damages remedy Bollard seeks, it
is clear that none of these entities will be involved in future
or ongoing monitoring of church activities.


[18] Taken as a whole, we conclude that the procedural
entanglement between church and state that will result from
allowing Bollard to pursue his claim is no greater than that
attendant on any other civil suit a private litigant might pursue
against a church. Accordingly, we fail to see an Establishment
Clause violation in applying the commands of Title VII to this
case.


III. State Law Claims

[19] Bollard included in his complaint claims under Cali-
fornia law for failure to investigate, for constructive dis-
charge, and for breach of contract. When the district court
dismissed Bollard's claim under Title VII, it dismissed those
claims under the federal supplemental jurisdiction statute, 28
U.S.C. S 1367(c). Because we hold that Bollard has stated a
claim under Title VII, the dismissal of his state law claims is
no longer warranted. Assuming the district court reaches the
merits of Bollard's state law claims on remand, it will have
to perform the same First Amendment analysis with respect
to those claims as the analysis we have performed with
respect to Bollard's claim under Title VII. We do not mean
inappropriately to anticipate the legal analysis of the district
court by stating here what is already obvious: The fact that
Bollard's Title VII claim for sexual harassment may go for-
ward despite the First Amendment does not necessarily mean
that his state law claims may also go forward.


[20] As the analysis earlier in this opinion makes clear, the
ministerial exception to Title VII is based not on Title VII but,
rather, on the First Amendment. Just as there is a ministerial
exception to Title VII, there must also be a ministerial excep-


                               14076


tion to any state law cause of action that would otherwise
impinge on the church's prerogative to choose its ministers or
to exercise its religious beliefs in the context of employing its
ministers. To take a clear example, had Bollard brought a
state law claim for breach of contract with an associated rem-
edy of reinstatement, that would run afoul of the Free Exer-
cise Clause because the remedy would require the church to
employ Bollard, thereby interfering with the church's consti-
tutionally protected choice of its ministers. Whether the
exception applies in a particular instance will depend on the
nature of the state law claim and its associated remedy, and
the district court will be in a position to undertake that analy-
sis on remand.


IV. Nature of the District Court's Dismissal

[21] Upon finding that the ministerial exception applied to
Bollard's claim under Title VII, the district court dismissed
his complaint under Federal Rule of Civil Procedure 12(b)(1)
for want of subject matter jurisdiction. We reverse that dis-
missal, but we also wish to make clear that, had Bollard's
claim indeed been barred, it should have been dismissed for
failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Failure to state a claim under federal law is not the
same thing as failure to establish federal question jurisdiction
under 28 U.S.C. S 1331. Any non-frivolous assertion of a fed-
eral claim suffices to establish federal question jurisdiction,
even if that claim is later dismissed on the merits under Rule
12(b)(6). As the Supreme Court wrote in Bell v. Hood, 327
U.S. 678, 682 (1946),


      Jurisdiction . . . is not defeated . . . by the possibility
      that the averments might fail to state a cause of
      action on which petitioners could actually recover.
      . . . If the court . . . exercise[s] its jurisdiction to
      determine that the allegations in the complaint do not
      state a ground for relief, then dismissal of the case
      would be on the merits, not for want of jurisdiction.


                               14077


See also Wheeldin v. Wheeler, 373 U.S. 647, 649 (1963) ("We
agree . . . that on the face of the complaint the federal court
had jurisdiction. . . . But on the undisputed facts,. . . no fed-
eral cause of action can be made out."). Bollard asserted a
non-frivolous federal claim, and even if the district court had
been correct in dismissing it, that dismissal should have been
on the merits under Rule 12(b)(6) for failure to state a claim
for which relief can be granted.


We REVERSE and REMAND for further proceedings
consistent with this opinion.


                               14078


Go to top

Ask a Lawyer

 

 

FREE CASE REVIEW BY A LOCAL LAWYER!
|
|
\/

Personal Injury Law
Accidents
Dog Bite
Legal Malpractice
Medical Malpractice
Other Professional Malpractice
Libel & Slander
Product Liability
Slip & Fall
Torts
Workplace Injury
Wrongful Death
Auto Accidents
Motorcycle Accidents
Bankruptcy
Chapter 7
Chapter 11
Business/Corporate Law
Business Formation
Business Planning
Franchising
Tax Planning
Traffic/Transportation Law
Moving Violations
Routine Infractions
Lemon Law
Manufacturer Defects
Securities Law
Securities Litigation
Shareholder Disputes
Insider Trading
Foreign Investment
Wills & Estates

Wills

Trusts
Estate Planning
Family Law
Adoption
Child Abuse
Child Custody
Child Support
Divorce - Contested
Divorce - Uncontested
Juvenile Criminal Law
Premarital Agreements
Spousal Support
Labor/Employment Law
Wrongful Termination
Sexual Harassment
Age Discrimination
Workers Compensation
Real Estate/Property Law
Condemnation / Eminent Domain
Broker Litigation
Title Litigation
Landlord/Tenant
Buying/Selling/Leasing
Foreclosures
Residential Real Estate Litigation
Commercial Real Estate Litigation
Construction Litigation
Banking/Finance Law
Debtor/Creditor
Consumer Protection
Venture Capital
Constitutional Law
Discrimination
Police Misconduct
Sexual Harassment
Privacy Rights
Criminal Law
DUI / DWI / DOI
Assault & Battery
White Collar Crimes
Sex Crimes
Homocide Defense
Civil Law
Insurance Bad Faith
Civil Rights
Contracts
Estate Planning, Wills & Trusts
Litigation/Trials
Social Security
Worker's Compensation
Probate, Will & Trusts
Intellectual Property
Patents
Trademarks
Copyrights
Tax Law
IRS Disputes
Filing/Compliance
Tax Planning
Tax Power of Attorney
Health Care Law
Disability
Elder Law
Government/Specialty Law
Immigration
Education
Trade Law
Agricultural/Environmental
IRS Issues

 


Google
Search Rominger Legal


 


LEGAL HELP FORUM - Potential Client ? Post your question.
LEGAL HELP FORUM - Attorney? Answer Questions, Maybe get hired!

NOW - CASE LAW - All 50 States - Federal Courts - Try it for FREE


 


Get Legal News
Enter your Email


Preview

We now have full text legal news
drawn from all the major sources!!

ADD A SEARCH ENGINE TO YOUR PAGE!!!

TELL A FRIEND ABOUT ROMINGER LEGAL

Ask Your Legal Question Now.

Pennsylvania Lawyer Help Board

Find An Attorney

TERMS OF USE - DISCLAIMER - LINKING POLICIES

Created and Developed by
Rominger Legal
Copyright 1997 - 2010.

A Division of
ROMINGER, INC.