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Biel v. St. James School, a Corp.

United States Court of Appeals, Ninth Circuit

June 25, 2019

Kristen Biel, Plaintiff-Appellant,
St. James School, a Corp., a California non-profit corporation; Does, 2-50, inclusive; St. James Catholic School, a California nonprofit corporation; Doe 1, Defendants-Appellees.

          D.C. No. 2:15-cv-04248-TJH-AS

          Before: D. Michael Fisher, [*] Paul J. Watford, and Michelle T. Friedland, Circuit Judges.



         Employment Discrimination

         The panel denied a petition for panel rehearing and, on behalf of the court, a petition for rehearing en banc following the panel's opinion reversing the district court's summary judgment in an employment discrimination action under the Americans with Disabilities Act.

         In its opinion, the panel held that the First Amendment's ministerial exception to generally applicable employment laws did not bar a teacher's claim against the Catholic elementary school that terminated her employment.

         Dissenting from the denial of rehearing en banc, Judge R. Nelson, joined by Judges Bybee, Callahan, Bea, M. Smith, Ikuta, Bennett, Bade, and Collins, wrote that the panel's opinion embraced the narrowest construction of the ministerial exception, split from the consensus of other circuits that the employee's ministerial function should be the key focus, and conflicted with the Supreme Court's decision in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012).


         The panel has voted unanimously to deny the petition for panel rehearing. Judge Fisher recommends granting the petition for rehearing en banc.

         The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The matter failed to receive a majority of votes of non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35(f).

         The petition for rehearing and the petition for rehearing en banc are DENIED.

          R. NELSON, Circuit Judge, with whom BYBEE, CALLAHAN, BEA, M. SMITH, IKUTA, BENNETT, BADE, and COLLINS, Circuit Judges, join, dissenting from the denial of rehearing en banc:

         By declining to rehear this case en banc, our court embraces the narrowest construction of the First Amendment's "ministerial exception" and splits from the consensus of our sister circuits that the employee's ministerial function should be the key focus. The panel majority held that Kristen Biel, a fifth-grade teacher who taught religion and other classes at a Catholic school, was not a "minister" because the circumstances of her employment were not a carbon copy of the plaintiffs circumstances in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171, 196 (2012). See Biel v. St. James Sch, 911 F.3d 603 (9th Cir. 2018). The panel majority's approach conflicts with Hosanna-Tabor, decisions from our court and sister courts, decisions from state supreme courts, and First Amendment principles. And it poses grave consequences for religious minorities (collectively, a substantial plurality of religious adherents in this circuit) whose practices don't perfectly resemble the Lutheran tradition at issue in Hosanna-Tabor.

         This is precisely the case warranting en banc review. We adopted the ministerial exception en banc prior to Hosanna-Tabor. See Alcazar v. Corp. of the Catholic Archbishop of Seattle, 627 F.3d 1288 (9th Cir. 2010) (en banc). The ministerial exception "is undeniably an issue of exceptional importance" because its denial "portends serious consequences for one of the bedrock principles of our country's formation-religious freedom." Bollard v. Cal. Province of the Soc'y of Jesus, 211 F.3d 1331, 1333 (9th Cir. 2000) (Wardlaw, J., joined by Kozinski, O'Scannlain, and Kleinfeld, JJ., dissenting from denial of rehearing en banc).

         Since then, the Supreme Court unanimously upheld the ministerial exception in Hosanna-Tabor, suggesting its application in a case like this. Three Justices-Thomas, Alito, and Kagan-filed or joined two separate concurrences specifically proposing legal tests under which the ministerial exception plainly applies here (and no Justice has proposed a test undermining its application here). And virtually all our sister courts-and state supreme courts-adopted the ministerial exception in similar cases.

         In this case, five different amici-coalitions of religiously diverse organizations and law professors-urge this court to correct its legal error. As amici explain, the panel majority's approach trivializes the significant religious function performed by Catholic school teachers. This court's narrow construction of the exception threatens the autonomy of minority religious groups, like amici, "for whom religious education is a critical means of propagating the faith, instructing the rising generation, and instilling a sense of religious identity." Brief of Gen. Conference of Seventh-Day Adventists, Int'l Soc. for Krishna Consciousness, Inc., Jewish Coalition for Religious Liberty, and Shaykh Hamza Yusuf as Amici Curiae in Support of Rehearing and Rehearing En Banc at 2.

         In light of all this, where does our court now stand on the ministerial exception? Despite a unanimous Supreme Court opinion upholding the exception, we are weaker, not stronger, in applying it. Not once, not twice, but three times now in the last two years, we have departed from the plain direction of the Supreme Court and reversed our district courts' faithful application of Supreme Court precedent. See also Puri v. Khalsa, 844 F.3d 1152 (9th Cir. 2017); Morrissey-Berru v. Our Lady of Guadalupe Sch., No. 17-56624, 2019 WL 1952853 (9th Cir. Apr. 30, 2019) (unpublished). And in each successive case, we have excised the ministerial exception, slicing through constitutional muscle and now cutting deep into core constitutional bone.

         In turning a blind eye to St. James's religious liberties protected by both Religion Clauses, we exhibit the very hostility toward religion our Founders prohibited and the Supreme Court has repeatedly instructed us to avoid. Accordingly, I dissent.


         The ministerial exception is well-entrenched in our constitutional framework. "The Supreme Court has long recognized religious organizations' broad right to control the selection of their own religious leaders." Puri, 844 F.3d at 1157. In 2012, a unanimous Supreme Court formally recognized a "ministerial exception" "grounded in the First Amendment[] that precludes application of [employment- discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers." Hosanna-Tabor, 565 U.S. at 188. In doing so, the Court reaffirmed "that it is impermissible for the government to contradict a church's determination of who can act as its ministers." Id. at 185.


         I begin with the text. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. Const. amend. I. The Establishment Clause and Free Exercise Clause have been said to "often exert conflicting pressures," Cutter v. Wilkinson, 544 U.S. 709, 719 (2005), but they speak in harmony to ensure dual protections for religious freedom.

         A troubled history of religious persecution led a young United States to break from the familiarities of living under the established Church of England. See Hosanna-Tabor, 565 U.S. at 182-83 ("Seeking to escape the control of the national church, the Puritans fled to New England, where they hoped to elect their own ministers and establish their own modes of worship." (citations omitted)). Creating a Federal Government with powers "few and defined," see The Federalist No. 45 (James Madison), the Founders confirmed that the new government, unlike the English Crown, would have no role in filling ecclesiastical offices. See Hosanna-Tabor, 565 U.S. at 184.

         To avoid entangling government and religion, our government is prohibited from deciding matters inherently ecclesiastical. See Watson v. Jones, 80 U.S. (13 Wall.) 679, 730-31 (1872). While the Establishment Clause expressly limits the government's power, the Free Exercise Clause also affirmatively protects religious institutions, which are "independen[t] from secular control or manipulation," as they have the "power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952). This includes the "[f]reedom to select the clergy." Id. By interfering with a religious institution's freedom to select those church personnel who promote its faith and mission, the government exceeds its delegated authority and infringes on that institution's right to free exercise of religion.

         The Founders understood these First Amendment protections were so fundamental that enshrining them in the Constitution outweighed the ancillary costs. These costs, in some cases, are not insignificant. They include exemptions for religious organizations from some laws protecting society's most vulnerable from employment discrimination. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. For example, after the Salvation Army terminated one of its ministers, the employee sued, alleging a violation of Title VII. See McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972). The Fifth Circuit held the First Amendment barred the Title VII claim, reasoning that "[m]atters touching" "[t]he relationship between an organized church and its ministers . . . must necessarily be recognized as of prime ecclesiastical concern" because a church's "minister is the chief instrument by which [it] seeks to fulfill its purpose." Id. at 558-59. In the decades since, every Circuit to address the issue, including this one, [1]unanimously recognized this "ministerial exception."


         In Hosanna-Tabor, the Supreme Court followed the uniform approach of the Courts of Appeals and held the ministerial exception bars employment discrimination suits by the group's ministers. 565 U.S. at 190. The case involved an employment discrimination claim brought by Cheryl Perich, a former elementary teacher, against her employer, Hosanna-Tabor Evangelical Lutheran Church and School. Id. at 177-79. Perich was first employed as a "lay teacher" and later became a "called teacher." Id. at 178. She taught kindergarten for four years and fourth grade for one year, which involved teaching a variety of subjects, including religion. Id. Specifically, Perich "taught a religion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. [She] led the chapel service herself about twice a year." Id. After Perich was diagnosed with narcolepsy and terminated, the EEOC sued the school, and Perich intervened, alleging violations of the Americans with Disabilities Act ("ADA"), 104 Stat. 327, 42 U.S.C. § 12101 et seq. (1990). Id. at 180.

         The Court held the ministerial exception "ensures that the authority to select and control who will minister to the faithful-a matter 'strictly ecclesiastical'-is the church's alone." Id. at 194-95 (internal citation ...

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