The First Amendment of the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That would seem clear. Indeed, in the seminal case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), federal employment law was held inapplicable to church employees if 1) the employee was “held out as a minister;” 2) the employee had the title of “minister” (or its equivalent); 3) the employee accepted a “formal call to religious service;” and 4) the employee had “a role in conveying the Church’s message and carrying out its mission.” Id., at 191-192. The foregoing formula was not to be applied mechanistically and, indeed, not every element had to be satisfied.

In Su v Stephen Wise Temple, Slip Op. (CA App., 2019) the appellate court reversed a summary judgment granted against the Labor Commissioner of California and remanded the matter for further proceedings. The Jewish temple employed forty teachers in its pre-school. The teachers need not be Jewish but were required to introduce children to “Jewish life, religious ritual and Judaic observance.” But, even though the teachers were “transmitting Jewish religion and practice to the next generation,” they were not “sufficiently central to a religious institution’s mission.” Therefore, the Ministerial Exception did not apply. The opinion does not state whether the pre-school teachers were complainants. However, the only issue raised by the Labor Commissioner in the case was whether the teachers were provided with “rest breaks, uninterrupted meal breaks, and overtime pay.”

The California court seemed oblivious to the reality that determining the pre-school teachers were not “sufficiently central to a religious institution’s mission” required an inherently ecclesiastical inquiry. The California appellant court was oblivious to the reality that it invaded First Amendment prohibited territory by holding that the “significant secular component” outweighed the religious instruction is listed at length. Moreover, and most offensive to the First Amendment, the California appellate court admitted “the pre-school is part of the Temple’s religious and educational mission, and it fulfills a religious obligation of the Temple. The [pre-school] exists to instill and foster a positive sense of Jewish identity and to develop in children favorable attitudes towards the values and practices of Judaism.” Thus, the California appellate court unleashed the California Labor Commissioner to make certain the pre-school teachers had the correct breaks, meal time, and over time pay to accomplish their admittedly religious mission.

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