THE NOT RELIGIOUS ENOUGH TEST OF THE 9TH CIRCUIT – 2ND VERSE

In December 2018, as reported herein, the United States Court of Appeals for the 9th Circuit decided Biel v St. James School, 911 F3d 603 (9th Cir. 2018), by holding that the school teacher could sue the Catholic school making federal employment law claims. 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.”

An appeal was taken to the 9th Circuit En Banc. This is a not often used procedure by which the three judge panel opinion could be accepted for review by all the sitting judges of the court of appeals for the 9th Circuit. In Biel v St. James School, Slip Op. (9th Cir. 2019), the majority of the 9th Circuit judges did not vote to review the three judge panel decision reported in 2018. However, nine of the 9th Circuit appellate judges dissented from the denial of en banc review. The 9th Circuit is authorized to employ 29 appellate judges appointed by the President and confirmed by the Senate. The dissent criticized the original panel decision in a written opinion, which is unusual. The dissent took the factual position, summarized above, the school teacher was religious enough to trigger First Amendment protections for the Catholic school and disqualify the school teacher from suing pursuant to federal employment statutes. The dissent noted the 9th Circuit was by its opinion at odds with the decision of the other United States Courts of Appeal. Also, the dissent alleged the legal test the 9th Circuit developed conflicted directly with the leading decision of the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v E.E.O.C., 565 US 171 (2012).

Will the nine appellate judges of the 9th Circuit that dissented be a loud enough voice to reach the ears of the United States Supreme Court should an application be made for certiorari by St. James Catholic School? For para-church organizations, including church schools, in the western United States, this could be of serious import. If the 9th Circuit decision stands, employment insurance costs, for example, will rise considerably. Indeed, rates may go up across the nation to funnel resources to litigation costs and settlements arising out West that are insured. Organizations that reduced or even eliminated employment litigation insurance coverage, which would be a bad judgment call in any event, may again find themselves at risk.

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