Metropolitan News-Enterprise


Monday, February 14, 2005


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Ninth Circuit Declines to Reconsider ‘Ministerial Exception’ Ruling

Decision Reviving Clergywoman’s Title VII Suit  Against Church Will Not Be Reviewed En Banc


By DAVID WATSON, Staff Writer


The Ninth U.S. Circuit Court of Appeals Friday declined to reconsider en banc a July panel ruling reviving a minister’s sexual harassment suit against the church that employed her and the pastor who supervised her.

While the petition for rehearing en banc failed to win the support of the majority of the court’s unrecused judges, the decision to allow the panel ruling to stand provoked a strongly worded dissent.

Judge Andrew J. Kleinfeld said the court was adopting a “crabbed application” of the “ministerial exception,” which bars claims under Title VII that church decisions in hiring and firing clergy are discriminatory. The court’s action, he said, “furthers an aggressively secularizing trend of the law in the Ninth Circuit and sets us apart from all of our sister circuits that have ruled on the application of Title VII to ministers.”

Kleinfeld protested:

“If King Henry II had lived in the Ninth Circuit, he would have won his struggle with Thomas Becket, Archbishop of Canterbury, without having to insinuate ‘Will no one rid me of this turbulent priest?’ to incite his knights to murder. Though King Henry’s goals in the struggle were, among other things, to gain secular jurisdiction of disputes over ecclesiastical patronage and to require archbishops and bishops to get permission from him before leaving the country, he stopped short of asserting control of selection and expulsion of priests. Since selection and expulsion of ministers are the only protected religious spheres in this court’s shriveled version of the First Amendment, we would have granted him what he wished.”

Six Dissenters

Judges Diarmuid F. O’Scannlain, Consuelo M. Callhan and Carlos T. Bea joined in Kleinfeld’s dissent. Separate dissenting opinions were also filed by Bea and by Judge Ronald M. Gould, with Kleinfeld joining Bea’s dissent and Bea and Judge Jay S. Bybee joining Gould’s.

The three-judge panel ruled in July that a U.S. district judge in Washington erred in relying on the ministerial exception to dismiss a sexual harassment and retaliation suit by Presbyterian minister Monica L. McDowell Elvig the Calvin Presbyterian Church, its pastor, and others. Relying on Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999), the court ruled that while Elvig could not recover damages for her loss of employment, she could recover for emotional distress and reputational harm.

Judge Raymond C. Fisher also said the church would be insulated by the ministerial exception from liability if it had doctrinal reasons for tolerating or failing to prevent sexual harassment. No such reasons had been alleged in Elvig’s litigation, he noted.

Madate of Bollard

Gould was a member of the three-judge panel and concurred, saying the outcome was mandated by Bollard “unless and until altered by an en banc panel or the United States Supreme Court.” But he said he had “misgivings” about whether Bollard “was correctly decided.”

Judge Stephen S. Trott, who has since taken senior status, dissented from the panel ruling.

Pointing to Fisher’s statement that doctrinal justifications could insulate a failure to prevent harassment from review, Kleinfeld argued Friday that the panel decision revived “the English rule” permitting courts to inquire into the legitimacy of such justifications.

Citing Lemon v. Kurtzman, 403 U.S. 602 (1971), the dissenting jurist declared:

“Forcing churches to satisfy courts that their religious doctrines justify their conduct is just the sort of ‘excessive entanglement’ that the First Amendment prohibits.”

He added:

“No other circuit has purported to revive the English rule..., no doubt because that rule was expressly rejected by the Supreme Court in Watson [v. Jones, 80 U.S. 679 (1871)].”

But Judge William A. Fletcher, writing in defense of the court’s decision not to review the panel ruling en banc, said Kleinfeld had misinterpreted the Fourth, Fifth, Seventh, Eleventh and D.C. Circuit cases he cited.

“All of the circuit cases discussed and cited by Judge Kleinfeld in his dissent fall in the McClure [v. Salvation Army, 460 F.2d 553 (5th Cir. 1972)] line of cases, in which a church’s decision to hire, to fire, and to prescribe the duties of its ministers was constitutionally protected,” Fletcher argued. Bollard, he contended, was consistent with McClure, which he described as the “lead case establishing the contours of the ministerial exception.”

Judges Alex Kozinski and Susan P. Graber joined in Fletcher’s opinion, as did Fisher.

Kozinski also authored a separate opinion, concurring in the denial of en banc review. Citing the phraseology of Bollard, he declared:

“While I oppose killing archbishops, either directly or softly with lawsuits, I don’t understand how Judge Kleinfeld’s approach helps. Suppose Judge Kleinfeld is right, and it would violate religious liberty for Henry Plantagenet to rid himself of Becket by getting Elvig’s ur-grandmother to sue him on a trumped-up harassment claim. It seems to me that Henry could achieve the same effect—through the same means—by getting a church janitor or bookkeeper to bring the same claim. Yet the latter kind of suit is clearly not barred by the ministerial exception, which only applies to those ‘serving the function of ministers.’”

The case is Elvig v. Calvin Presbyterian Church, 02-35805.


Copyright 2005, Metropolitan News Company