FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS ALCAZAR,
Plaintiff,
and
CESAR ROSAS, No. 09-35003
Plaintiff-Appellant,
D.C. No.
CV-06-00281-RSM
v.
THE CORPORATION OF THE CATHOLIC OPINION
ARCHBISHOP OF SEATTLE; and
FATHER HORATIO YANEZ,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted En Banc
September 22, 2010—San Francisco, California
Filed December 10, 2010
Before: Alex Kozinski, Chief Judge, Harry Pregerson,
Robert R. Beezer, Diarmuid F. O’Scannlain, Susan P. Graber,
Raymond C. Fisher, Ronald M. Gould, Richard C. Tallman,
Carlos T. Bea, Milan D. Smith, Jr., and N. Randy Smith,
Circuit Judges.
Opinion by Judge Graber
19731
ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 19733
COUNSEL
Eric Schnapper, University of Washington School of Law,
Seattle, Washington; and Lindsay Halm, Schroeter, Goldmark
& Bender, Seattle, Washington, for the plaintiff-appellant.
Michael A. Patterson and Karen A. Kalzer, Patterson
Buchanan Fobes Leitch & Kalzer, Inc., P.S., Seattle, Wash-
19734 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
ington; and M. Colleen Kinerk, Cable, Langenbach, Kinerk &
Bauer, LLP, Seattle, Washington, for the defendants-
appellees.
Allen Ruby, Law Offices of Allen Ruby, San Jose, California;
Eric C. Rassbach, The Becket Fund for Religious Liberty,
Washington, D.C.; and Kathryn Darnell, Metzger Law Group,
PLC, Long Beach, California, for the amici curiae.
OPINION
GRABER, Circuit Judge:
Churches, like all other institutions, must adhere to state
and federal employment laws. But the federal courts have rec-
ognized a “ministerial exception” to that general rule. The
exception exempts a church’s employment relationship with
its “ministers” from the application of some employment stat-
utes, even though the statutes by their literal terms would
apply. A key inquiry, therefore, is whether an employee is a
“minister” for purposes of the exception. Where, as here, the
plaintiff alleges that he “entered the seminary to become a
Catholic priest” and performed his duties “in a ministerial
placement,” “[a]s part of [his] preparation for ordination into
the priesthood,” we hold that he is a “minister” for purposes
of the ministerial exception.
Plaintiff Cesar Rosas appeals from the district court’s grant
of judgment on the pleadings to Defendants Corporation of
the Catholic Archbishop of Seattle and Father Horatio Yanez
on Rosas’ overtime claim brought under Washington’s Mini-
mum Wage Act and from the court’s subsequent decision
denying him leave to amend the complaint to add a minimum
wage claim. In Rosas v. Corporation of Catholic Archbishop
of Seattle, 598 F.3d 668 (9th Cir. 2010), a three-judge panel
affirmed. Among other things, the panel’s opinion announced
ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 19735
a new test for determining whether a person is a “minister”
for purposes of the ministerial exception. Id. at 674-77. We
vacated that opinion and granted rehearing en banc, 617 F.3d
1101 (9th Cir. 2010) (order). On rehearing, we need not and
do not adopt a general test for determining whether a person
is a “minister” because, on the facts as alleged, Rosas is a
minister under any reasonable interpretation of the exception.
We therefore vacate Part IV-C of the panel’s opinion, which
announced a new test. We adopt that opinion in all other
respects, including its holding that the exception applies to the
minimum-wage claim at issue.1
[1] The Fifth Circuit first recognized the ministerial excep-
tion nearly 40 years ago. McClure v. Salvation Army, 460
F.2d 553, 558-61 (5th Cir. 1972). It is now “well entrenched”
in the federal courts of appeals. See Rweyemamu v. Cote, 520
F.3d 198, 206 (2d Cir. 2008) (collecting cases). As we have
explained, the ministerial exception derives from both the
Free Exercise and Establishment Clauses of the First Amend-
ment. Werft v. Desert Sw. Annual Conference of United Meth-
odist Church, 377 F.3d 1099, 1101 (9th Cir. 2004) (per
curiam). “The Free Exercise Clause rationale for protecting a
church’s personnel decisions concerning its ministers is the
necessity of allowing the church to choose its representatives
using whatever criteria it deems relevant.” Bollard, 196 F.3d
at 947. “Indeed, the ministerial relationship lies so close to the
heart of the church that it would offend the Free Exercise
1
We need not revisit our case law concerning the kinds of employment
decisions covered by the ministerial exception. See, e.g., Elvig v. Calvin
Presbyterian Church, 375 F.3d 951 (9th Cir. 2004) (holding that the min-
isterial exception partially foreclosed a sexual harassment suit); Bollard v.
Cal. Province of Soc’y of Jesus, 196 F.3d 940 (9th Cir. 1999) (holding that
the ministerial exception did not apply in a sexual harassment suit); cf.
Am. Friends Serv. Comm. Corp. v. Thornburgh, 961 F.2d 1405 (9th Cir.
1992) (holding that the application of the employer sanctions provisions
of the Immigration Reform and Control Act of 1986 to a Quaker organiza-
tion did not violate the First Amendment). If the ministerial exception
applies here, Rosas’ claim for additional wages fails.
19736 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
Clause simply to require the church to articulate a religious
justification for its personnel decisions.” Id. at 946. Similarly,
“applying [a] statute to the clergy-church employment rela-
tionship creates a constitutionally impermissible entanglement
with religion [in violation of the Establishment Clause] if the
church’s freedom to choose its ministers is at stake.” Id. at
948-49.
The paradigmatic application of the ministerial exception is
to the employment of an ordained minister which, in cases
involving Roman Catholicism, would include priests. See,
e.g., Minker v. Balt. Annual Conference of United Methodist
Church, 894 F.2d 1354, 1358 (D.C. Cir. 1990) (holding that
an ordained Methodist minister “is clearly a minister” for pur-
poses of the exception). But the ministerial exception encom-
passes more than a church’s ordained ministers. See, e.g.,
Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999); EEOC
v. Catholic Univ. of Am., 83 F.3d 455, 461 (D.C. Cir. 1996).
Federal courts have grappled with determining whether a par-
ticular church employee, though not ordained, nevertheless
should be considered a “minister” for purposes of the ministe-
rial exception. See, e.g., Starkman, 198 F.3d at 175-77 (choir
director); Catholic Univ., 83 F.3d at 463 (Catholic nun); Ray-
burn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d
1164, 1168 (4th Cir. 1985) (“associate in pastoral care”).
The circuit courts have not adopted a uniform general test
for making that determination. Some courts utilize the “pri-
mary duties” test, which asks whether the employee’s primary
duties are religious in nature. Skrzypczak v. Roman Catholic
Diocese of Tulsa, 611 F.3d 1238, 1243-44 (10th Cir. 2010);
EEOC v. Hosanna-Tabor Evangelical Lutheran Church &
Sch., 597 F.3d 769, 778 (6th Cir. 2010), petition for cert.
filed, 79 U.S.L.W. 3286 (U.S. Oct. 22, 2010) (No. 10-553);
Catholic Univ., 83 F.3d at 463; Rayburn, 772 F.2d at 1168-69.
Others appear to use a version of the “primary duties” test,
though without expressly adopting it. Petruska v. Gannon
Univ., 462 F.3d 294, 304 n.6, 306-07 & n.10 (3d Cir. 2006);
ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 19737
Scharon v. St. Luke’s Episcopal Presbyterian Hosps., 929
F.2d 360, 362-63 (8th Cir. 1991). At least one court has opted
for a multi-factor test. Starkman, 198 F.3d at 175-77; see also
Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1039-41
(7th Cir. 2006) (discussing several factors).
[2] For our part, we have declined to adopt any particular
test. In EEOC v. Pacific Press Publishing Ass’n, 676 F.2d
1272 (9th Cir. 1982), we analogized to the Fifth Circuit’s case
law elaborating on McClure to conclude that a secretary was
insufficiently like a minister to trigger the exception. See id.
at 1277-78 (citing EEOC v. Sw. Baptist Theological Semi-
nary, 651 F.2d 277, 283-85 (5th Cir. 1981); EEOC v. Miss.
Coll., 626 F.2d 477, 484 (5th Cir. 1980)). The secretary’s role
did not “go to the heart of the church’s function in the manner
of a minister or a seminary teacher,” and her employment was
not “the type of critically sensitive position within the church
that McClure sought to protect.” Id. at 1278. Accordingly, we
stated that “[t]he facts of the present case do not require this
court to examine in depth the scope of the [ministerial]
exemption.” Id.; see also EEOC v. Fremont Christian Sch.,
781 F.2d 1362, 1369 (9th Cir. 1986) (applying McClure with-
out announcing a general test).
[3] The parties and amici have suggested that we adopt a
test of general applicability—either the test created by the
three-judge panel, a test of their own creation, or one of the
tests used by our sister circuits. We decline that invitation. We
leave for another day the formulation of a general test
because, under any reasonable construction of the ministerial
exception, Rosas meets the definition of a minister.
[4] We hold that the First Amendment considerations rele-
vant to an ordained minister apply equally to a person who,
though not yet ordained, has entered into a church-recognized
seminary program to become a minister and who brings suit
concerning employment decisions arising from work as a
seminarian. The principle of “allowing the church to choose
19738 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
its representatives using whatever criteria it deems relevant,”
Bollard, 196 F.3d at 947, necessarily applies not only to those
persons who already are ordained ministers, but also to those
persons who are actively in the process of becoming ordained
ministers. Similarly, we can no more ask the church for a reli-
gious justification for its decisions concerning seminarians
(ordained ministers in training) than we can ask the church “to
articulate a religious justification for its personnel decisions”
concerning its ordained ministers. Id. at 946.
[5] Here, according to the complaint, Rosas “entered the
seminary to become a Catholic priest in 1995 in Mexico” and,
“[a]s part of [his] preparation for ordination into the priest-
hood, the Catholic Church required [him] to engage in a min-
isterial placement outside their diocese.” For his ministerial
placement, Rosas was “placed in St. Mary Parish in Marys-
ville, Washington,” where he “was hired to do maintenance of
the church and also assisted with Mass.” Because Rosas affir-
matively alleges that he was a seminarian and seeks to chal-
lenge the church’s wage payments concerning his work as a
seminarian, we hold that Rosas is a “minister” for purposes of
the ministerial exception.
Our holding today is limited. We do not address the extent
of any ministerial exception concerning minors; at all relevant
times, Rosas was an adult. Additionally, we agree with the
courts that have held that, if a church labels a person a reli-
gious official as a mere “subterfuge” to avoid statutory obli-
gations, the ministerial exception does not apply. Tomic, 442
F.3d at 1039. Here, there is no allegation or suggestion of bad
faith or subterfuge.
Similarly, the ministerial exception may not apply to a sem-
inarian who obtains employment with a church outside the
scope of his seminary training. Here, Rosas challenges the
church’s wages for his duties as a seminarian. As part of his
seminary training, he alleges, he was placed at St. Mary Par-
ish where he performed duties such as maintenance and
ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 19739
assisting with mass. Fairly read, Rosas’ complaint alleges that
he performed those duties as part of his seminary training.
We acknowledge that it is theoretically possible to read the
complaint as alleging that the church hired Rosas for mainte-
nance purposes independent of his participation in the semi-
nary program. Rosas alleges that he “was hired to do
maintenance of the church and also assisted with Mass.” One
could read that allegation as follows: The church placed
Rosas at St. Mary Parish to perform some seminarian duties,
such as “assist[ing] with Mass,” and that, in Rosas’ spare
time, he applied for a secular maintenance position at the
church and “was hired to do maintenance of the church.”
Even if that theoretical possibility were sufficient to survive
Defendants’ motion to dismiss—a proposition that we doubt
—other indicators suggest that such a strained reading is
incorrect.
[6] After the district court held that the ministerial excep-
tion applied and dismissed the complaint, Rosas sought to file
an amended complaint. With one exception, the proposed
amendments did not alter any of the allegations concerning
employment at St. Mary Parish as a part of the seminary train-
ing. The proposed amended complaint added a new sentence:
After the original allegation that “[h]e was hired to do mainte-
nance at the church and also assisted with mass,” Rosas
sought leave to add: “Plaintiff Rosas worked eight to nine
hours a day, seven days a week and was paid $225 per week.”
The proposed amendment makes clear that Rosas’ employ-
ment was not part seminarian, part secular—it was all part of
his seminary training, for which he was paid a comprehensive
weekly wage. That some of his duties may have encompassed
secular activities is of no consequence. A church may well
assign secular duties to an aspiring member of the clergy,
either to promote a spiritual value (such as diligence, obedi-
ence, or compassion) or to promote its religious mission in
some material way. The ministerial exception applies notwith-
standing the assignment of some secular responsibilities.
19740 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
[7] In conclusion, Rosas challenges the sufficiency of his
wages for duties performed as part of his seminary training to
become an ordained Roman Catholic priest. Because the min-
isterial exception applies to those claims, we affirm the dis-
trict court’s dismissal of the complaint.
AFFIRMED.