Ministerial Exemption Covers Organist, But Not Chaplain?

Posted 5:36 AM by Michael Fox

One of the current hot topics in discrimination law is the "ministerial exception" to Title VII discrimination laws. Yesterday's decision, Petruska v. Gannon University (3rd Cir. 5/24/06) sets up, at least superficially, very different outcomes in opinions authored by two of the country's most distinguished appellate jurists. Judge Posner of the 7th Circuit earlier this year found that a discrimination claim by a church organist fell because of the ministerial exception, a court created exception to Title VII designed to prevent constitutional problems of interference with church affairs. See my April 4th post, The Words of the Gospel Set to Messiah or to 3 Blind Mice?

In Petruska, Judge Becker, conducts both a scholarly survey of the rationale for the ministerial exception and tailors for his court what he calls a "carefully tailored version." By contrast to Judge Posner's result, applying his "carefully tailored version" of the ministerial exception, Judge Becker allows a dismissed Chaplain of a Catholic College to pursue her claim of gender discrimination and retaliation, at least for now. His view of was not shared by his colleague, Judge Smith, who wrote in dissent:

Although the majority professes to adopt a “carefully tailored version of the ministerial exception” to Title VII, Maj. Op. at 3, in fact, by treating ministers like lay employees, it effectively refuses to recognize any ministerial exception, placing this Court at odds with every other federal court of appeals to consider the issue. The majority holds that “where a church discriminates for reasons unrelated to religion, . . . the Constitution does not foreclose Title VII suits.” Maj. Op. at 4. It concludes that because Gannon has not–or at least not yet–articulated a “religious belief, religious doctrine, or internal regulation” as a basis for its decision to restructure, adjudication of Petruska’s claims does not offend the First Amendment. Id. I disagree with the majority’s fundamental premise that a church’s choice regarding who performs particular spiritual functions is not necessarily a religious decision. Rather, in my view, such a decision is, by its very nature, a religious one.

In his 60 page opinion, Judge Becker discusses in some detail the three different rationales that other circuits have utilized to justify such an exeption. Those three are:

• Government scrutiny
• Selection of clergy
• Inquiry into religious doctrine

Although the theoretical view is fascinating, perhaps most telling is Judge Becker's recognition that the implementation of his decision will not necessarily be easy: "We recognize that this process will often require a nuanced analysis of whether a piece of evidence calls religious doctrines into question, but we are confident that the excellent district courts in this Circuit are up to the task."

Having never had a case involving the ministerial exemption I have only a passing knowledge of the issue, but from Judge Becker's careful opinion, and the dissent, it appears certain to me that this is an issue that will soon claim attention of the Supreme Court. For anyone who is involved in such litigation or represents religious institutions or their employees, this is a very important case.

Ironically, it may well be Judge Becker's last opinion as although authored by him it was not released until five days after his death.

Update: One June 20th, the 3rd Circuit granted rehearing, not en banc, but because of the death of Judge Becker and "circumstances have arisen which require Judge Richard L. Nygaard to recuse," the case will be reheard by the one dissenting judge and two randomly selected judges.

2nd Update: Completing its full reversal from the original opinion, the reconstituted panel held that:

This Court has not previously ruled on the viability or the scope of the ministerial exception. Today, we join seven of our sister circuits in adopting the exception and hold that it applies to any claim, the resolution of which would limit a religious institution’s right to choose who will perform particular spiritual functions.

Petruska v. Gannon University (9/6/06) [pdf].

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