Category: church employment


Rare concurring pronouncements by a minority of the Justices of the United States Supreme Court are not legally binding but may be educational.  The United States Supreme Court hears a mere handful of cases every year and denies certiorari in the rest.  Denials of certiorari are not usually accompanied by any explanation or opinion.  Though rare, sometimes there is a published dissent.  Rarer still, a filed and published concurrence to a denial of certiorari may be interesting enough to note.

In Seattle’s Union Gospel Mission v Woods, 592 US ___ (2022) (concurrence with denial of certiorari), Seattle’s Union was a parachurch organization that engaged in a number of threads of ministry to the poor.  One such thread was a legal aid service.  In order to minister through legal aid, the plaintiff had to hire a lawyer.  All employees, including any lawyer hired, had to agree to the employee handbook.  The handbook imposed a morality clause.  The lawyer applicant was a former summer intern and volunteer for Seattle’s Union.  The lawyer applied and disclosed that he was a bisexual in a same sex relationship.  The applicant could not provide a reference from a local pastor and was not a church member at the time of the application.  The ministry leader met with the lawyer applicant and explained the application could not be considered because of the morals clause in the handbook.  The lawyer submitted an application to “protest” the ministry’s morality clause and then filed suit.  The Washington state trial court dismissed the case based on the Washington anti-discrimination statute’s religious exemption.  The Washington Supreme Court reversed holding the statutory religious exemption violated the Washington state constitution.  The Washington Supreme Court also reversed for a factual finding by the trial court as to whether a lawyer in a ministry to the poor was a “minister” as contemplated by Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171, 189 (2012) and Our Lady of Guadalupe School v Morrissey-Berru, 591 US___ (2020).  Because the decision of the Supreme Court of Washington was interlocutory, and the trial court decision was not yet final, the United States Supreme Court would not accept the case.  The Justices’ concurrence with the denial noted the Washington state trial court had yet to address “whether applying state employment law to require the Mission to hire someone who is not a co-religionist would infringe the First Amendment.”

It can be assumed that the cost of the litigation has thus far been staggering and now must “start over” in the trial court.  The Mission would be well within its rights to simply abolish its legal aid ministry.  It might not clear the Mission of the charge of discrimination, and it might not prevent liability in a jurisdiction like the state of Washington, but it might stop the next case.  It is clear that many courts on the west coast simply no longer consider basic constitutional rights meaningful limits in their quest to suppress religious organizations and persons.  Even statutory exemptions for religious organizations enacted by the Washington legislature are to be set aside, it seems, in the quest of west coast courts for hegemony.


We have repeatedly reported opinions of the United States Court of Appeals for the 9th Circuit that reveal a political agenda at work to suppress a legal one.  In 2019, in flagrant disregard of United States Supreme Court rulings to the contrary, see, Hosanna-Tabor Evangelical Lutheran Church & School v E.E.O.C., 565 US 171 (2012), the 9th Circuit continued holding that Catholic school teachers could still make federal employment law claims even though extra-ordinary dissents among their own ranks resulted.  See, Biel v St. James School, 911 F3d 603 (9th Cir. 2018).  The Supreme Court reversed the 9th Circuit.  Our Lady of Guadalupe School v Morrissey-Beru consolidated with St. James School v Biel, ___US___, 140 S. Ct. 2049 (2020).  The 9th Circuit uses various means to navigate past the First Amendment, the Ecclesiastical Abstention Doctrine, and the Ministerial Exception.

In Cedar Park Assembly of God v Kreidler, Order (WD Wash., 2022) the federal trial court ultimately allowed the Plaintiff’s challenge to state statutes imposing on church employers the duty to include abortion coverage in their medical coverage.  The 9th Circuit reversed a prior ruling of the federal trial that had swept aside a Free Exercise claim but affirmed that the church waived its Establishment Clause claim for failing to brief it in the church’s opening brief before the 9th Circuit.  Sadly, the error of the federal trial court pushed the church to the 9th Circuit and the lawyer for the church either made a drafting error or did not think that issue was before the 9th Circuit.  In any event, treating constitutional level jurisdictional challenges as waivable in an interlocutory appeal, particularly in light of a remand, seems typical of the 9th Circuit.  Also, ignoring the authority of the United States Supreme Court is another hallmark.  This issue was decided in Burwell v Hobby Lobby Stores, Inc., 573 US 682 (2014).  Amazingly, the Burwell opinion is not discussed in the Cedar Park Order by the federal trial court.  In any event, the Free Exercise claim, which is an Establishment Clause claim, are simply some of the names given to First Amendment claims.  The 9th Circuit seems to treat the language of the First Amendment (“Congress shall make no law…”) as subservient to its political agenda.


While it is abundantly clear that courts will not intervene in nearly all claims regarding employment of clergy, the question arises about whether the clergyman (or clergywoman) that loses employment with a secular employer because of the loss of clergy credentials.  In that instance, is there a viable claim?

In Iwuchukwu v Archdiocese for the Military, Memorandum Opinion (D. DC, 2022), the Plaintiff was a clergyman but employed by a federal agency and terminated.  The employment required the Plaintiff, serving as a chaplain, to have the credentials of clergy without which the employment was summarily terminated.  The federal agency was not named as a Defendant.  The denomination claimed it revoked the credentials based on an unresolved allegation of sexual misconduct at a prior employment a decade earlier.  The Plaintiff submitted a polygraph examination report that seemed to confirm the Plaintiff’s denial of the allegation.  Also, some years before this case, the Plaintiff filed a complaint against the federal agency with the Equal Employment Opportunity Commission (“EEOC”) alleging a hostile work environment.  Plaintiff claimed revocation of his clergy credentials was in retaliation and had nothing to do with the clergy credentials.  In effect, Plaintiff was arguing his claims were reviewable under Neutral Principles of Law.  The federal trial court dismissed the case as barred by the Ecclesiastical Abstention Doctrine because religious organizations could unilaterally decide who would speak for them as clergy.  The court also noted the federal employment discrimination statute exempted religious organization employers.

Because many clergymen and clergywomen work in alternative employments with parachurch organizations or even secular entities, the facts presented in the reported case may be less unique than might be expected.  For example, many hospitals have chaplains.  Clergy that are accused of sexual misconduct are not well served by relying on denominations or parachurch organizations to clear them.  Innocent accused clergy have no choice but to immediately seek a judicial declaration of innocence if reputable counsel believes there is a reasonable chance for a favorable outcome, or expect the loss of their former career.


Sometimes you cannot get the lyrics out of your head:

Gimme a head with hair
Long, beautiful hair
Shining, gleaming
Streaming, flaxen, waxen

Give me down to there (Hair!)
Shoulder length or longer hair (Hair!)
Here baby, there mama
Everywhere daddy daddy

Hair (Hair! Hair! Hair! Hair! Hair! Hair!)
Grow it, show it
Long as I can grow it
My hair

I let it fly in the breeze
And get caught in the trees
Give a home for the fleas in my hair
A home for fleas
A hive for the buzzin’ bees (buzzin’ beeeeeeeesssss)
A nest for birds
There ain’t no words
For the beauty, the splendor, the wonder
Of my…

Hair (Hair! Hair! Hair! Hair! Hair! Hair!)
Grow it, show it
Long as I can grow it
My hair

Hair lyrics © Emi U Catalog Inc., Channel H Productions, 1969, sung by the Cowsills (the “bubblegum pop” band of the 1960s that may have inspired the television show The Partridge Family).

In Markowski v BYU, Memorandum Decision and Order Granting Summary Judgment (D. Utah, 2022), the Plaintiff was employed as a trainer of full-time missionaries.  Her specialty was use of social media.  The Defendant university’s dress code applied to employees and probably students.  The Plaintiff cut her hair short.  Six weeks later, Plaintiff was informed her hair cut was “not feminine enough” and “was too masculine.”  There was a complaint about her eyebrows as well.  Although Plaintiff indicated she would grow her hair out, she was fired.  To qualify for her position, the Plaintiff had completed her own eighteen-month missionary assignment and the training required for the mission.  She also had other required training.  Her job required her to teach church doctrine using the parent church’s social media systems.  Plaintiff claimed discrimination on the basis of sex because male employees were allowed to bleach their hair blond, disparate treatment, and “failing to fulfill traditional sex stereotypes.”  The federal trial court granted summary judgment to the Defendant.  The court held that Plaintiff’s position had a “vital role in advancing the religious mission” of the Defendant and the position was “explicitly religious in nature.”  Thus, the Ministerial Exception barred the claim.  The court relied upon Hosanna-Tabor Evangelical Lutheran Church & Sch. v EEOC, 565 US 171 (2012).  The court held the position performed “vital religious duties” and was barred.  For this aspect of the Ministerial Exception inquiry the court relied on Our Lady of Guadalupe School v Morrissey-Berru, 140 S.Ct. 2049 (2020).

Explicit dress codes can be enforced on ministerial staff and nearly all employees.  Most secular businesses and government offices can do so, too, so this should come as no surprise to even new and young employees.  Most churches in the US appear to have abandoned all dress codes, at least during worship services, although less so for professional clergy in some denominations and traditions, but this should not mislead anyone to think that they are unenforceable in the denomination and or tradition that still recognizes the necessity of dress codes.  The case reminded this author of a more innocent time when changing hair styles were the subject of controversy and song lyrics.