Metropolitan News-Enterprise


Wednesday, June 26, 2019


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Ninth Circuit Won’t Rehear ‘Ministerial Exception’ Case

Decision Draws Sharp Dissent From Visiting Jurist Signed by Seven Members of Court


By a MetNews Staff Writer


An order filed yesterday reflects a vote by the majority of the Ninth U.S. Circuit Court of Appeals judges to deny a rehearing en banc in a case in which a three-judge panel, by a vote of 2-1, held that the ministerial exception to employment laws does not bar a suit by a teacher against a Catholic School, prompting a vigorous dissent from that denial in which seven members of the court joined.

Ninth Circuit Judge Michelle T. Friedland wrote the Dec. 17 opinion which reversed a summary judgment granted by District Court Judge Terry J. Hatter of the Central District of California in favor of St. James Catholic School in an employment discrimination case brought by Kristen Biel, who was fired as a fifth-grade teacher. Friedland, joined by her colleague on the court, Paul J. Watford, said the ministerial exception does not apply because Biel is not a minister.

Third Circuit Senior Judge D. Michael Fisher, sitting by designation, dissented. He maintained that an examination of all of Biel’s duties shows that she qualifies as a minister for purposes of the exception.

Fisher wrote yesterday’s dissent and was joined by Ninth Circuit Judges Jay S. Bybee, Consuelo M. Callahan, Carlos T. Bea, Milan D. Smith Jr, Sandra S. Ikuta, Mark J. Bennett, and Daniel Collins.

Fisher, Bybee, Callahan, Bea, Smith and Ikuta were appointed by President George W. Bush and Bennett and Collins are appointees of President Donald Trump.

Supreme Court Case

Friedland—who was named to the court by President Barack Obama, as was Watford—said in her December opinion, that the only U.S. Supreme Court case applying the ministerial exception was Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., decided in 2012. She noted that there, a teacher at a Lutheran school, Cheryl Perich, was fired after she was diagnosed with narcolepsy.

It was determined in that case that the exception did apply. Friedland pointed out that the church had given her the title of minister, she had extensive religious training, she held herself out as a minister, and she taught religious subjects and led prayers.

The jurist wrote:

“Biel, by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.

“Nor did St. James hold Biel out as a minister by suggesting to its community that she had special expertise in Church doctrine, values, or pedagogy beyond that of any practicing Catholic. St. James gave her the title ‘Grade 5 Teacher.’ ”

She added that Biel did not hold herself out as a minister and the only thing she had in common with Perich was that she taught religion in the classroom.

Biel was fired after being diagnosed with cancer.

Dissent From Denial

Fisher said in yesterday’s dissent:

“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 plaintiff s circumstances in Hosarma-Tabor Evangelical Lutheran Church & School v. E.E.O.C….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.”

He noted that five amici had urged the court to grant en banc review.

Ninth Circuit Pattern

The visiting jurist declared:

“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….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.”

Fisher recited that Biel taught religion at least four days a week using materials “grounded in the Catholic Faith,” supervised pratyers twice a day, had an employment contract requiring utmost commitment to the Catholic faith, and was required by a handbook to educate students in the “Catholic faith and values.”

He commented:

“Biel’s religious duties are far more relevant than whether she personally felt she was a minister.”

The jurist said it was unsurprising that Biel, unlike Perich, did not use the title “minister,” quoting Hosanna-Tabor as saying that is “rarely if ever used… by Catholics, Jews, Muslims, Hindus, or Buddhists.”

Fisher declared:

“In applying the ministerial exception, our court should look to the function performed by employees of religious bodies. Doing so would honor the foundational protections of the First Amendment and ensure all religious groups are afforded the same protection.”

Theorder and  dissent came in Biel v. St. James School, 17-55180.


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