Before: D. Michael Fisher, [*] Paul J. Watford, and Michelle T.
Friedland, Circuit Judges.
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.
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.
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).
panel has voted unanimously to deny the petition for panel
rehearing. Judge Fisher recommends granting the petition for
rehearing en banc.
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).
petition for rehearing and the petition for rehearing en banc
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:
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
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).
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.
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.
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.
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.
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.
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.
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.
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.
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,
unanimously recognized this
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.
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