THE “NOT RELIGIOUS ENOUGH” TEST OF THE 9TH CIRCUIT

The Ministerial Exception of the First Amendment, the doctrine that employment laws do not apply to church employment decisions because such decisions involve ecclesiastical decisions shielded from judicial or legislative regulation, only applies to church employees that have a religious function. The history of that limitation on the doctrine, and whether it is actually a limitation consistent with the First Amendment idea of a constitutional level wall between government power and church dominion, is not the focus of this report. Rather, the manner by which the doctrine is applied is once again the question. Generally, the latest statement of the rule and its application is the totality-of-the-circumstances test articulated by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012). The problem with this test is that the totality to be weighed must be weighed subjectively.

In Biel v St. James School, Slip Op., ___ F3d ___ (9th Cir. 2018), the federal trial court dismissed the case because the Plaintiff was a 5th grade teacher in a Catholic elementary school that, at the least, taught religion thirty minutes a day in addition to teaching secular subjects and interwove Catholic religious teachings into other lessons. The Plaintiff alleged her annual contract after one year of service was not renewed in violation of the Americans with Disabilities Act because the Plaintiff anticipated chemotherapy to address breast cancer. The 9th Circuit reversed the trial court because it determined the Plaintiff was insufficiently religious to be found to be ministerial to trigger the doctrine and stated:

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.

The 9th Circuit held that being required to teach Catholic religion thirty minutes a day was “no religious requirement for her position.” Likewise, the requirement, and the apparently mandatory training that went with it, that Catholic religious doctrine be incorporated in other lessons was “no religious requirement for her position.”

It seems rather odd that the 9th Circuit wants to be the leader in curtailing the scope of religious freedom protected by the First Amendment. The “totality” test of Hosanna-Tabor is not a scale upon which to weigh the amount of religion found in an employment relationship but rather based on the “totality” it is a determination whether there is an ecclesiastical component in the employment relationship. If there is an ecclesiastical component, the First Amendment is triggered. Once triggered, the First Amendment should not be any more vulnerable to subjective interpretation than any other constitutional prohibition. Only someone that has never been inside a church elementary school, of any denomination, could possibly fail to see the ecclesiastical component of the employment.

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