The Catholic University of America

Archived Religion Cases of Interest


Carroll College Inc. v. NLRB

No. 07-1315 United States Court of Appeals for the DC Circuit (Decided March 13, 2009)

In this case the court held the Board had no jurisdiction to order Carroll College to bargain with the union, and that the court had authority to invalidate the Board's order even though the college did not raise its jurisdictional challenge in the earlier proceedings. The court cited University of Great Falls v NLRB and held the Board's approach had involved the sort of intrusive inquiry that the Supreme Court had sought to avoid in NLRB v. Catholic Bishop of Chicago. The three part test from Great Falls states that a school is exempt from NLRB jurisdiction if it 1) holds itself out to students, faculty and the community as providing a religious educational environment; 2) is organized as a *nonprofit*; and 3) is affiliated with or owned, operated or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion. 

This test is found to "ensure that schools claiming the Catholic Bishop exemption are bona fide religious institutions, while avoiding the Board inquiry into the substance and contours of their religious beliefs and missions." 

Colorado Christian University v. Weaver, et al. (No. 07-1247) (10th Cir. July 23, 2008)

The court in this case found a state scholarship program, which provided scholarships to eligible students who attended any accredited college in the in the state of Colorado, unconstitutional to the extent that is excluded from the program any college deemed to be pervasively sectarian. Colorado Christian University (CCU), after being excluded from the program as pervasively sectarian, brought suit claiming violation of the First and Fourteenth Amendments. The district court held for the state, but the Court of Appeals for the 10th Circuit reversed and granted summary judgment in favor of the university. 

The Court of Appeals found the program unconstitutional for two reasons: The program expressly discriminates among religions without constitutional justification, and its criteria for doing so involves unconstitutional scrutiny of religious belief and practice.

 The parties agreed that the Establishment Clause posed no bar to inclusion of CCU in the program. The Colorado legislature had not yet repealed its statutory restriction on "pervasively sectarian" schools. The dispute thus focused on whether a state may choose to exclude pervasively sectarian institutions, even when not required to, and the court concluded it may not. 

On the discussion of discriminating among religions, the court pointed out that the program allowed attendance with the scholarship money at "sectarian" schools, but not *pervasively* sectarian schools, thus " Colorado necessarily and explicitly discriminates among religious institutions." The court quoted the Columbia Union College case (4th Cir.) which concluded that the pervasive sectarian test should be abandoned. On the question of entanglement, the court noted as follows: 

The Colorado provisions challenged here are fraught with entanglement problems. The most potentially intrusive element of the Colorado statute is the criterion requiring Commission staff to decide whether any theology courses required by the university "tend to indoctrinate or proselytize." *** To decide that these syllabi were likely "to convince" the students of religious truths, the Commission had to decide how religious beliefs are derived and to discern the boundary between religious faith and academic theological beliefs. *** Commission officials testified that they demanded to see CCU's religious education curriculum, and (for reasons known only to themselves) determined that it "tend[ed] to indoctrinate or proselytize." The line drawn by the Colorado statute, between "indoctrination" and mere education, is highly subjective and susceptible to abuse.

In the conclusion, the court noted quite strongly:

We cannot and will not uphold a statute that abridges an enumerated constitutional right on the basis of a factitious governmental interest found nowhere but in the defendants' litigating papers. But even if saving taxpayers from supporting students who choose a religious education were an actual state interest, it would still fail because the statute is not narrowly tailored to this asserted goal.

For more, see the July 24, 2008 Inside Higher Ed article titled U.S. Court Rejects Pervasively Sectarian Test.

Petruska v. Gannon, No. 05-1222 (C.A. 3rd Cir. Sept. 6, 2006)

This is a case upholding the "ministerial exception." As a general rule, an employee of a religious institution will be considered a minister if his/her primary duties include teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship. If the "ministerial exception" applies, then a claim against a religious institution of discrimination under Title VII will fail and be subject to dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In other words, the claim will not be considered legally sufficient and it will be barred by the First Amendment.

Plaintiff Petruska was employed as a chaplain at Gannon University, a Catholic diocesan college. In 2002, after a new President was appointed at the college, the plaintiff was notified that the President would be restructuring the university, and she would now report to a different supervisor. Several months later Petruska quit, alleging gender discrimination, retaliation for her actions in assisting another employee in pursuing a sexual harassment claim, as well as some common law claims such as breach of contract. Petruska's complaint established that her primary duties involved ministerial functions, such as holding prayer services, planning liturgies, and serving as co-chair for the Catholic Identity Task Force at the college.


The trial court granted Gannon's motion to dismiss on grounds that the First Amendment barred adjudication of her claims. The 3rd Circuit Court of Appeals reversed, but in a rehearing by a reconstituted panel the earlier decision of the 3rd Circuit for the plaintiff was vacated and the ministerial exception upheld.


In taking the position that the ministerial exception controls when the resolution of the plaintiff's claim would limit the church's right to choose who will perform particular religious functions, the 3rd Circuit joined seven other federal circuits that have affirmed the ministerial exception. The court held that the process of selecting a minister is per se a religious exercise. In reaching this decision, the court stated as follows: "(A)ny restriction on the church's right to choose who will carry its spiritual message necessarily infringes upon its free exercise rights to profess its beliefs." The court noted that the remedy is limited. The ministerial exception "does not apply to all employment decisions by religious institutions, nor does it apply to all claims by ministers." Tthe church's right to decide manners of governance and internal organization protected by the First Amendment was also upheld. In a note sure to warm the hearts of lawyers representing religious institutions, the court noted "The EEOC has no special expertise to resolve First Amendment claims."


Christian Legal Society v. Walker, No. 05-3239, 453 F.3d 853, decided July 10, 2006
In this case the Court of Appeals for the 7th Circuit granted a preliminary injunction and restored the official student organization status to the Christian Legal Society (CLS) at the Southern Illinois University School of Law (SIU). The student organization had a policy of precluding membership to those who engage in or affirm homosexual conduct. While the organization welcomed anyone to meetings, voting members and officers had to take a statement of faith that meant, among other things, they must not engage in or approve of homosexual conduct, fornication, or adultery. Upon complaint in the spring of 2005 that the CLS policy as it applied to homosexual conduct violated the school's Affirmative Action/EEO policy, the law school dean revoked the registered status of CLS. CLS brought suit and lost the request for an injunction at the lower court level.  

Benefits of being a student organization included access to the law school listserv, appearance in law school publications and on the website, the ability to reserve meetings space, and more. Among the reasons the Court of Appeals reversed the lower court were a finding that CLS had not actually violated SIU policy (the court noted active membership in CLS is not precluded based upon status, but upon conduct), CLS had shown a likelihood that SIU had impremissibly infringed on CLS's right of expressive association, and third, CLS had shown a likelihood that SIU violated CLS's free speech rights by ejecting it from a forum in which it had a right to remain.

On the question of expressive association, the court noted as follows: 

CLS is a faith-based organization. One of its beliefs is that sexual conduct outside of a traditional marriage is immoral. It would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct. CLS's beliefs about sexual morality are among its defining values; Forcing it to accept as members those who engage in or approve of homosexual conduct would cause the group as it currently identifies itself to cease to exist. We have no difficulty concluding that SIU's application of its nondiscrimination policies in this way burdens CLS's ability to express its ideas. See Roberts, 468 U.S. at 623, 104 S.Ct. 3244; see also Dale, 530 U.S. at 659, 120 S.Ct. 2446; Hurley, 515 U.S. at 576, 115 S.Ct. 2338 ("[W]hen dissemination of a view contrary to one's own is forced upon a speaker [,] ... the speaker's right to autonomy over the message is compromised."); cf. FAIR, 126 S.Ct. at 1312 (holding that law school's associational rights are not burdened by law requiring that military recruiters be allowed the same campus access other recruiters are given because military recruiters do not become "members of the school's expressive association").

On the question of expressive conduct, the court found that the Supreme Court had made it clear that antidiscrimination regulations may not be applied to expressive conduct with the purpose of either suppressing or promoting a particular viewpoint. (citing Dale and Hurley) The court also cited Healy v. James, 408 US 169 (1972), a case in which college students attempting to form a Students for Democratic Society (SDS) chapter at Central Connecticut State College were rebuffed by the administration. The Supreme Court held for the SDS on the question of expressive association, finding that the protections of the constitution are not limited to direct interference with First Amendment freedoms, but also protects against indirect interference. The Court in Healy held that SDS's associational rights had been impermissibly infringed because the school refused to confer student organization status and its attendant benefits on SDS. 

On the free speech claim, the court noted as follows:

Whether SIU's student organization forum is a public, designated public, or nonpublic forum is an inquiry that will require further factual development, and that is a task properly left for the district court. But even assuming at this stage of the litigation that SIU's student organization forum is a nonpublic forum--making the lowest level of scrutiny applicable--we believe CLS has the better of the argument.

The court also noted that the school had applied its antidiscrimination policy to CLS alone, even though other student organizations discriminated in their membership requirements.

Tomic v. Catholic Diocese of Peoria, No. 04-4219 (C.A. 7th Cir. April 4, 2006)

This case, authored by Judge Posner, is a strong reaffirmation of the "ministerial exception" doctrine, which prevents the exercise of federal jurisdiction in Title VII cases and other employment disputes when a controversy over either religious doctrine or church management may emerge over the course of litigation. In those cases, under the "ministerial exception," the court should decline to exercise jurisdiction in order to avoid interfering with free-exercise under the First Amendment, and to avoid being accused of violating the Establishment Clause. 

Tomic was employed as the music director and organist of a Roman Catholic Church in Peoria, Illinois. When a dispute arose with the Bishop's assistant over the choice of Easter music, he was fired, and an younger person replaced him. Tomic claimed age discrimination. The court declined to exercise jurisdiction in the case, holding that federal courts, as secular agencies, do not exercise jurisdiction over the internal affairs of religious organizations. The court noted that the ministerial exception, like the rest of the internal affairs doctrine, is not subject to waiver or estoppel. 

Selected text follows:


Thus "the First Amendment concerns [with assuming jurisdiction in ecclesiastical cases] are two-fold. The first concern is that secular authorities would be involved in evaluating or interpreting religious doctrine. 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." Combs v. Central Texas Annual Conference of United Methodist Church, supra, 173 F.3d at 350 (citations omitted). This second aspect of the internal-affairs doctrine is called the "ministerial exception" to the exercise of federal jurisdiction. E.g., Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 702-03 (7th Cir. 2003).

Both aspects govern decision even when--in fact most commonly when--the complaint is not based on and does not refer to religious doctrine or church management (as in most Title VII and other employment-discrimination suits) but it is apparent that a controversy over either may erupt in the course of adjudication. E.g., id.; EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795, 801 (4th Cir. 2000).

The ministerial exception, and the hands-off approach more generally, do not place the internal affairs of religious organizations wholly beyond secular jurisdiction. If a local congregation of a hierarchical sect seized the local church, changed the locks, and declared itself an independent religious organization, a court would, upon suit by the hierarchy, enjoin the seizure. 

At argument Tomic's lawyer astonished us by arguing that music has in itself no religious significance--its only religious significance is in its words. The implication is that it is a matter of indifference to the Church and its flock whether the words of the Gospel are set to Handel's Messiah or to "Three Blind Mice." That obviously is false. The religious music played at a wedding is not necessarily suitable for a funeral, and religious music written for Christmas is not necessarily suitable for Easter. Even Mozart had to struggle over what was suitable church music with his first patron, Archbishop Colloredo, whom the Mozart family called the "arch-booby." "Music is a vital means of expressing and celebrating those beliefs which a religious community holds most sacred. Music is an integral part of many different religious traditions," including the Catholic tradition. EEOC v. Roman Catholic Diocese of Raleigh, supra, 213 F.3d 795, 802-03; see also Starkman v. Evans, 198 F.3d 173, 176-77 (5th Cir. 1999). Like the plaintiff in the Starkman case, Tomic "performed tasks that were 'traditionally ecclesiastical or religious.'" Id. at 177. 

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, No. 04-1084 (Feb. 2006)
In a unanimous opinion authored by Chief Justice John Roberts, the Court rejected the Government's argument that it had a compelling interest in barring the sacramental use of a Schedule I controlled substance by the respondent church Unaio Do Vegetal (UDV). The Government conceded at the lower court level that the use of a hallucinogenic sacramental tea by the religious sect was a sincere exercise of religion. When the Government seized a shipment of the tea the church filed suit claiming that applying the Controlled Substances Act to the tea was a violation of the Religious Freedom Restoration Act. The Government argued the church should have borne the burden of disproving the asserted compelling interests articulated by the Government. The court rejected this argument, citing Ashcroft v. ACLU, 542 U.S. 656 (2004). The court also rejected the argument by the U.S. that the Controlled Substances Act should in essence always prevail, and that no exceptions could be allowed. The Court pointed out that a legislative exception for peyote for religious purposes by Native Americans is on the books, and thus the Court is not acting out of bounds in crafting a judicial exception for the sacramental tea in this case, in fact, that is what RFRA contemplates. The Court stated as follows:

The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to "rule[s] of general applicability." 42 U.S.C. §2000bb-1(a).

Moranski v. General Motors Corp., 433 F. 3d 537, No.05-1803 (7th Cir. 2005)

General Motors (GM) runs a program known as the Affinity Group Program. This program allows recognized groups to receive company recognition and use company facilties. The idea of the program is to make diverse constitutencies feel welcome at the company. Current affinity groups include People with Disabilities, African Ancestry Network, GM Plus (for gays and lesbians) and the Hispanic Initiative Team. Plaintiff Moranski sought recognition of a "Christian Employee Network". 

GM denied Moranski his request, based on the Affinity Group Guidelines (Guidelines). The Guidelines preclude recognition of Affinity Groups based on any religious "position," including agnosticism, atheism, and secular humanism. Moranski, claiming discrimination on the basis of religion under Title VII, filed a complaint with the EEOC and was issued a Notification of Right to Sue letter. The district court granted GM's motion to dismiss for failure to state a claim. The Court of Appeals affirmed the district court finding, pointing out that the central question in a Title VII case is "Whether the employer would have taken the same action had the employee been of a different race (age, sex, religion, national origin, etc.) and everything else had remained the same." The Court of Appeals found no discrimination as GM would have taken the same action if Moranski had a different religious position. GM has never recognized an Affinity Group that promotes or advocates any religious position, even one of religious indifference or opposition to religion, and thus there was no discrimination in this case.

Carroll College and UAW Case 30-RC-6594, NLRB decision and order Aug. 26, 2005

A write up by Jeffrey A. Berman, Sidley Austin Brown and Wood. Sidley Austin Brown and Wood LLP filed an amicus brief on behalf of a group of Seventh-day Adventist hospitals in Carroll College. Sidley also filed an amicus brief in Great Falls, both before the Board and the D.C. Circuit, and it represented the employer in Ukiah.

 Christian Legal Society v. Walker, et al., (7th Cir. August 2005)

In this case, the Christian Legal Society CLS) at Southern Illinois University School of Law sought and received an injunction ordering reinstatement of their status as a registered student organization. Registered student organization status on campus allows access to campus bulletin boards, private meeting space, storage space, a faculty advisor, university website, email access and other benefits. The organization's status had been revoked due to the CLS faith based requirement that members abide by biblical tenets on homosexuality. The university claimed this violated the university's affirmative action policy and certain federal and state anti-discrimination laws. In ruling on a motion to grant the injunction for reinstatement, but not a holding on the merits, the court stated that the law schools' revocation of the Christian Legal Society's status was a cognizable infringement of the group's First Amendment rights. 

Romeo v. Seton Hall University, Superior Court of New Jersey, Appellate Division, Docket # A-1191-04T1 Decided June 22, 2005

The exemption of a Roman Catholic University from the state's law against discrimination was upheld in this case, in which a gay student accused Seton Hall of violating the state anti-discrimination law by refusing to recognize the gay support group that he founded. The plaintiff, Anthony Romeo, is an openly gay student who argued that Seton Hall's anti-discrimination policy amounted to a unilateral contract binding upon the school. While Seton Hall remained committed to working with the plaintiff to meet the needs of gay and lesbian students, the university declined to give formal recognition to a support group founded solely upon sexual orientation, noting that the Roman Catholic Church does not consider an individual to be either a "heterosexual" or "homosexual," but rather every person has "a fundamental identity as a creature of God." The New Jersey anti-discrimination law contains an exemption for a bona fide religious or sectarian institution.. The plaintiff argued this exemption had been waived by the school's adoption of a non-discrimination policy that explicitly protected persons against discrimination on the basis of sexual orientation. Seton Hall argued that it could not waive its exemption, and that the First Amendment protections, including those upheld in Boy Scouts of America v. Dale, 530 U.S. 640, also applied. The court agreed that the exemption could not be waived, citing a case that left it up to the religious entity to resolve inconsistencies between the school's policies in principle and policies in practice.In terms of the contract argument, the court noted that the student handbook also contained a provision which required students forming organizations to respect the values and missions of the university. The court also distinguished between employee handbooks, which have been found to be contractually binding, and student handbooks, noting that the relationship between students and a university cannot be described either in pure contract or associational terms.

 Pardue v. Center City Consortium of Schools of the Archdiocese of Washington, Inc.

District of Columbia Court of Appeals, 875 A.2d 669, Decided June 9, 2005, cert. denied, No. 05-311, 2005 U.S. LEXIS 8243; 74 U.S.L.W. 3288, November 7, 2005

In this D.C. Court of Appeals decision affirming the ministerial exception to non-discrimination statutes, the court upheld the trial court decision in favor of the Center City Consortium. One of the schools in the consortium terminated the employment of the principal, Ms. Pardue, who filed suit against the school claiming discrimination and retaliation under the D.C. Human Rights Act. The discrimination claim was on the basis of her race, which was Caucasian. The Archdiocese moved to dismiss based on the ground that the First Amendment Free Exercise and Establisment Clauses deprived the court of subject matter jurisdiction, stating the grounds for her termination were in fact ecclesiastical, i.e. Ms. Pardue's lack of commitment to religious education.The D.C. Court of Appeals held as follows:


Making explicit what is implicit in the foregoing decisions, we hold that the ministerial exception as applied in the case of federal statutes may be raised as a bar to suits alleging discrimination under the DCHRA. Although "it would . . . be difficult to exaggerate the magnitude of [the District's] interest in assuring equal employment opportunities for all, regardless of race, sex, or national origin," Rayburn, 772 F.2d at 1168, n3 abundant decisional law from this court and others confirms "the constitutional imperative of governmental non-interference with the ministerial employment decisions of churches."


 Applying these standards and the substantive test which the ministerial exception prescribes, we hold that Judge Boasberg correctly found Ms. Pardue's claims under the DCHRA to be barred for lack of subject matter jurisdiction. "Our inquiry . . . focuses on 'the function of the position' at issue and not on categorical notions of who is or is not a 'minister.'" Roman Catholic Diocese, 213 F.3d at 801. As mentioned earlier, the "general rule" followed by the cases, and applied by the trial judge here, is that

if the employee's primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered clergy. A court must therefore "determine whether a position is important to the spiritual and pastoral mission of the church" in order to decide whether the ministerial exception applies.


Pardue was the chief administrator of an institution both educational and religious. Hence she would certainly be expected to perform numerous duties -- secular in appearance -- designed to meet public licensing requirements and to maintain the standing of the institution as a school. But she was also principal of a Roman Catholic school, and thus she, more than anyone else at the school except the pastor, see discussion, infra, was answerable to the religious authorities for providing, in myriad ways not reducible to a listing of tasks, "spiritual leadership in and for the school community." As the evidence before the trial court makes clear, these many responsibilities -- some predominantly "secular" and some predominantly religious -- are inextricably intertwined in the school's mission and in the principal's role in fulfilling it.

See the trial court decision below.

 Locke v. Davey, No. 02-1315 Decided Feb. 25, 2004 

In a 7-2 decision authored by Chief Justice Rehnquist, the Supreme Court held that the State of Washington Promise Scholarship program, which provides scholarships for students attending postsecondary schools, was constitutional. The program had been challenged by Joshua Davey, a scholarship recipient who planned to pursue a degree in devotional theology, a major disallowed under the program. The State of Washington Constitution, which is more stringent than the U.S. Constitution, states:


Religious Freedom. Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment. 

The Supreme Court held state funding of a scholarship to be used for a religious purpose was an action permitted by the Establishment Clause, but not required by the Free Exercise Clause. The majority of the Court did not see any evidence of hostility toward religion in the Washington program. Justice Scalia, who dissented from the majority opinion, took issue with this point and view and stated: 

One can concede the Framers' hostility to funding the clergy specifically, but that says nothing about whether the clergy had to be excluded from benefits the State made available to all. No one would seriously contend, for example, that the Framers would have barred ministers from using public roads on their way to church. 

Scalia also noted that the Court did not articulate whether or not it deemed the State interest to be compelling, pointing out that the argument that those pursuing theology majors are not comparable to other Promise Scholars because"training for religious professions and training for secular professions are not fungible" was at best a rational argument for the discrimination,and certainly not a compelling one. 

Mellen v. Bunting, 327 F. 3d. 355, (4th Cir. 2003)In this case the 4th Circuit parted ways with other Circuits ruling on the constitutionality of school prayer at Institutions of Higher Education. The 4th Circuit Court of Appeals held that the daily supper prayer at the Virginia Military Institute(VMI), a state operated military college, violated the Establishment Clause of the First Amendment. The court used a combination of the three pronged test enunciated in Lemon v. Kurtzman, 403 U.S. 602 (1971) and the case of Lee v. Weisman, 505 U.S. 577 (1992). In the latter case, the Court invalidated a school's practice of inviting a member of the clergy to deliver a nonsectarian prayer at a commencement ceremony, based on the finding that there was an element of coercion.

 The 4th Circuit recognized that the Lee case involved middle school students and not college age students, who are considered less susceptible to coercion. The Court also noted that other circuit courts considering the issue have approved of the decisions of public universities to offer prayers at graduation ceremonies. (See Tanford v. Brand, 104 F. 3d 982 (7th Cir. 1997), and Chaudhuri v. Tennessee, 130 F. 3d 232 (6th Cir. 1997)). Nevertheless, the court found that the VMI cadets were coerced into participating in a religious exercise. The court held that due to VMI's coercive atmosphere, the Establishment Clause precludes school officials from sponsoring an official prayer, even for adults. 

Zelman v. Simmons-Harris Nos. 00-1751, 00-1777, and 00-1779, SUPREME COURT OF THE UNITED STATES, 2002 U.S. LEXIS 4885; 70 U.S.L.W. 4683, June 27, 2002, Decided.

State ex rel. Mary Gallwey v. Daniel K. Grimm, No. 68565-7, Supreme Court of the State of Washington, June 13th, 2002

In this decision, the Supreme Court of Washington held the Washington Equal Opportunity Grant (EOG) Program does not violate article IX, section 4 of the Washington State Constitution. The Court found this provision of the Constitution does not apply to institutions of higher education.

UColumbia Union College v. Oliver, 2001 U.S. App. LEXIS 14253 (4th Cir. 2001) On June 26th, 2001 the 4th Circuit Court of Appeals affirmed the judgment of the District Court that Columbia Union College qualifies for Sellinger Program funds. The case was before the District Court on remand from the appellate court after the District Court initially ruled that Columbia Union College was not eligible for state funds. Columbia Union College is an institution of higher education located in the state of Maryland and affiliated with the Seventh-day Adventist Church.

University of Great Falls v. National Labor Relations Board, No. 00-1415, (Feb. 12, 2002) (D.C. Cir.), 2002 U.S. App. LEXIS 2244.

This Court of Appeals for the D.C. Circuit case prohibits the NLRB from taking the "pervasively sectarian" approach to jurisdictional issues involving religious educational institutions.

DC Superior Court Case interpreting " ministerial exception"

Pardue v. The Center City Consortium Schools of the Archdiocese of Washington D.C. Super. Ct. 02-5459, July 29, 2003 Opinion per Judge James E. Boasberg

In this case Plaintiff Kathleen Pardue was forced to resign as the Principal of St. Francis Xavier School, a Roman Catholic Elementary School. She brought a claim of reverse race discrimination under the D.C. Human Rights Act. The Defendants argued in a Motion for Summary Judgment that the Court lacks subject matter jurisdiction as this case represents an ecclesiastical dispute protected from Court interference under the Free Exercise Clause of the First Amendment. The Free Exercise Clause exempts the selection of clergy from Title VII and similar statutes, and precludes civil courts from adjudicating employment discrimination suits by ministers against the church or religious institutions employing them. The Court noted that " When employees of religious institutions bring discrimination suits against their employers, courts are required to engage in a unique balancing of interests." Quoting EEOC v. The Catholic University of America, 83 F. 3d 455, 460, (D.C. Cir. 1996) the Court identified the interests as " the Government's interest in eradicating discrimination in employment and the constitutional right of a church to manage its own affairs free from governmental interference." In Rayburn v. General Conference of Seventh Day Adventists, 772 F. 2d 1164, 1165 (4th Cir. 1985), cert. denied 478 U.S. 1020 (1986) the 4th Circuit Court of Appeals articulated the following test for making a determination as to whether or not an employee's position meets what has been termed "the ministerial exception" under the Free Excercise Clause:

As a general rule, if the employee's primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered "clergy." This approach necessarily requires a court to determine whether a position is important to the spiritual and pastoral mission of the church (cites omitted).

Applying the Rayburn test to the DC case, the Superior Court found that the principal of each Catholic school in the Archdiocese has a significant religious and spiritual role in furthering that mission of the Church, including the hiring of teachers who teach the Catholic courses, making certain students attend Mass according to the Archdiocesan policy, and working with the pastor to ensure religious education is in conformity with Archdiocesan guidelines. The Court framed the primary question as "whether the position is important to the spiritual and pastoral mission of the church." Accordingly, the Court did not have subject matter jurisdiction to consider the discrimination claim brought by Plaintiff.


updated 6/27/13 CCR