[Cite as Fisher v. Archdiocese of Cincinnati, 2014-Ohio-944.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
VICKIE FISHER, : APPEAL NO. C-130295
TRIAL NO. A-1108451
Plaintiff-Appellant, :
vs. : O P I N I O N.
ARCHDIOCESE OF CINCINNATI, :
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 14, 2014
Freking and Betz LLC, Randolph H. Freking and Brian P. Gillan, for Plaintiff-
Appellant,
Graydon Head and Ritchey, LLP, Steven P. Goodin and Nicholas J. Ziepfel, for
Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Following her termination from employment, plaintiff-appellant Vickie
Fisher filed suit against her former employer defendant-appellee the Archdiocese of
Cincinnati (“Archdiocese”), asserting claims for age discrimination, promissory estoppel,
and intentional infliction of emotional distress. The trial court dismissed her claims
based upon the ministerial exception, which is rooted in the First Amendment’s Free
Exercise and Establishment Clauses, and bars employment-discrimination suits by
ministerial employees against their religious employers. See Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC, __U.S.__, 132 S.Ct. 694, 702-709,
181 L.Ed.2d 650 (2012). It also dismissed her claims on a second basis, the ecclesiastical
abstention doctrine, finding that its “inquiry into and second-guessing of the human
resources decisions of church-affiliated organizations [would] offend the First
Amendment’s plain language regarding the separation of church and state.”
{¶2} Fisher’s appeal presents the first opportunity for this court to address the
ministerial exception in light of the United States Supreme Court’s decision in Hosanna-
Tabor. Based upon our review of the record and the law, we conclude that there is no
genuine issue of material fact that Fisher was a ministerial employee, and that her
claims are barred under the ecclesiastical abstention doctrine. We, therefore, affirm the
trial court’s decision granting summary judgment to the Archdiocese.
Fisher’s Employment with the Archdiocese
{¶3} Fisher, a practicing Catholic, was employed at the Gate of Heaven
Cemetery for nearly two decades. The cemetery is wholly-owned and operated by the
Archdiocese. It is a manifestly religious institution established for the sacred purpose of
carrying out the liturgical rite of Catholic burial and the subsequent care of the burial
spaces. The Catechism of the Catholic Church provides that “the Christian funeral is
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a liturgical celebration of the Church. The ministry of the Church in this instance
aims at expressing efficacious communion with the deceased, in the participation in
that communion of the community gathered for the funeral, and the proclamation of
eternal life to the community.” Catechism of the Catholic Church Section 1684. In
the eyes of the Catholic Church, “the burial of the dead is a corporal work of mercy; it
honors the children of God, who are temples of the Holy Spirit.” Id. at Section 2300.
{¶4} When Fisher began her employment at the cemetery in 1989, she
received a copy of the Gate of Heaven Cemetery Employee Handbook. In addition to
identifying all employees as at-will employees, the handbook sets forth the unique
mission of the Catholic cemetery, the management of which requires special sensitivities
to the customs and rites of Catholic religious practice. This mission statement was also
posted on Fisher’s office wall.
{¶5} The mission statement provides that employees must:
* * * acknowledge that the Catholic cemetery is established to carry out
the sacred religious function of the burial, and care for the resting places,
of the deceased members of the Church.
* * * accept the responsibility of implementing this religious function
under the directions and supervision of the Archbishop of the Catholic
Archdiocese of Cincinnati.
* * * believe in, and [be] firmly committed to, the teachings and rich
tradition of the Catholic Church with regard to its deceased members, and
the sacredness of the cemeteries in which their bodies rest.
* * * recognize the deep religious significance of the Corporal Work of
Mercy involved in the burial of the dead, and reverence for the deceased.
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* * * [be] dedicated to the respectful care of the people of God who, even
in death, remain a part of the whole Christian community.
* * * [be] committed to encouraging Catholic prayer and devotion for our
deceased brothers and sisters, especially within our Catholic cemetery.
* * * oppose any effort to minimize or destroy any of the Catholic
teachings which relate to death, burial and devotion to departed souls.
* * * proclaim through our words, work, and example the sacredness of
the Human Body, the Belief in the Resurrection and the Christian Virtue
of Hope.
{¶6} Fisher started her employment as a Family Service Counselor/Special
Projects Coordinator/Funeral Escort. The written job description for the position
provides that the employee “have a special sensitivity to the mission of the Catholic
cemetery and safeguard the values and ethics of same.” Fisher sold burial services,
coordinated special cemetery events, including Memorial Day Mass, Candlelight
Services, Children’s Services, and was responsible for the conduct of funeral services
held within the cemetery’s chapel or on its grounds. Fisher told families that she was
Catholic and was familiar with the Catholic burial service.
{¶7} Fisher also received faith-based training for the position. The
Archdiocese paid for Fisher to attend a four-year program in Catholic cemetery
management at John Carroll University. The classes, which were presented by the
National Conference of Catholic Cemeteries, required a one-week residency each year
with full days of coursework in human resources and land management, as well as
spirituality and the psychology of death and dying. The courses were provided from a
Catholic theological perspective. Fisher earned a certificate for her completion of the
course during her employment at the Gate of Heaven Cemetery.
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{¶8} In 2005, Fisher was promoted to the newly-created position of
codirector of the cemetery along with another employee, Paula Rooks. In her capacity as
codirector, Fisher gathered with the Gate of Heaven staff every morning and began the
day with a prayer. She routinely interacted with Catholic priests in order to deliver the
proper burial rites and service. She also assisted grieving families and provided them
with spiritual guidance through the burial process. Fisher described her role as
primarily dealing with people and the family service aspect of a burial. She viewed the
faith aspect of her position as significant to her duties and held a sense of mission,
describing the work of the cemetery, itself, as a ministry. Conversely, her codirector
Rooks was viewed as the business manager of the cemetery with a focus on information-
technology issues.
{¶9} In the fall of 2010, Richard Kelly, the Chief Financial Officer for the
Archdiocese, received a complaint from a cemetery employee that the Gate of Heaven
Cemetery was being mismanaged. The employee had alleged that Fisher and Rooks
were involved in selling damaged grave markers for scrap metal and distributing the
cash proceeds to Gate of Heaven employees. A subsequent investigation affirmed the
grave-marker allegation and revealed that Fisher was using profanity with the
employees. Fisher and her codirector, Rooks, were reprimanded.
{¶10} Kelly ultimately decided that the cemetery needed new management.
During Fisher’s and Rooks’ tenure as codirectors, the cemetery had acquired significant
negative equity. Sales were lackluster and an auditor had expressed concern about the
financial health of the cemetery.
{¶11} Kelly decided that the cemetery would operate better under a single on-
site manager, who had more substantive business credentials. He contacted Human
Resources Director William Hancock, and asked him to create a job description for the
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position that reflected these requirements. Hancock reformulated the job description to
require an advanced decree and greater business experience. The Archdiocese’s ad for
the newly created executive director position was posted on the intranet for current
employees, as well in the Catholic Telegraph, a newspaper published by the Archdiocese,
and other local newspaper and industry specific journals.
{¶12} Fisher applied for the new position, emphasizing the spiritual aspects of
her Gate of Heaven position: “I got the most satisfaction personally and spiritually from
my current position * * * Assisting those in pain is personally very fulfilling.” The
Archdiocese eventually hired Debra Crane as the new executive director of the cemetery.
Crane was an experienced attorney and manager, who possessed extensive experience
turning around underperforming businesses. She was also a deeply spiritual woman,
who had left her prior position as general counsel for an insurance company to serve as a
pastor at a nondenominational church.
{¶13} In January 2011, Kelly informed Fisher and Rooks that Crane had been
hired as the new director. Fisher believed that Crane, a non-Catholic, could not handle
the “faith part of the job.” She was equally concerned with what the hiring of a non-
Catholic would mean for the future of the cemetery. In June 2011, Fisher’s position and
several other employees’ positions were eliminated as a result of Crane’s decision to
restructure the Gate of Heaven sales force.
Trial Court Proceedings
{¶14} In October 2011, Fisher filed suit against the Archdiocese alleging age
discrimination, promissory estoppel, and intentional infliction of emotional distress. In
December 2011, the trial court stayed the case pending a ruling from the United States
Supreme Court in Hosanna-Tabor. One week after the Supreme Court’s ruling in
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Hosanna-Tabor, the trial court lifted the stay. The Archdiocese then moved pursuant to
Civ.R. 56 for summary judgment on all of Fisher’s claims.
{¶15} On May 4, 2013, the trial court granted the Archdiocese summary
judgment on two separate grounds. First, the trial court held that “there is no genuine
issue of material fact that Fisher is a ‘ministerial employee’ as defined by the United
States Supreme Court’s ruling in Hosanna-Tabor, given that her training and job duties
at the Gate of Heaven Cemetery expressly involved religious doctrine and practices, and
her role is ‘ministerial.’ ” Second, the trial court found that “separate and apart from the
‘ministerial exception’ * * * judicial inquiry into and second-guessing of the human
resources decisions of church-affiliated organizations offends the First Amendment’s
plain language regarding the separation of church and state.” As a result, it “saw no role
for itself under these circumstances as a matter of law,” and dismissed all of Fisher’s
claims. Fisher has timely appealed.
Summary Judgment Standard
{¶16} In a single assignment of error, Fisher argues that the trial court erred
in granting the Archdiocese summary judgment. We review a trial court’s grant of
summary judgment under Civ.R. 56 de novo. Esber Beverage Co. v. LaBatt USA
Operating Co., L.L.C., __Ohio St.3d __, 2013-Ohio-4544, __N.E.2d __,¶ 9. Under
Civ.R. 56(C), summary judgment is proper when
(1) [n]o genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and (3)
it appears from the evidence that reasonable minds can come to but
one conclusion, and viewing such evidence most strongly in favor of
the party against whom the motion for summary judgment is made,
the conclusion is adverse to that party.
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Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1997).
The Ministerial Exception
{¶17} The Free Exercise and Establishment Clauses provide that “Congress
shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof.” The First Amendment to the U.S. Constitution. Lower federal
courts interpreting these clauses have long recognized a ministerial exception that is
grounded in the First Amendment and “bar[s] the government from interfering with
the decision of a religious group to fire one of its ministers.” Hosanna-Tabor, 132
S.Ct. at 702, 705, 181 L.Ed.2d 650.
{¶18} In Hosanna-Tabor, the United States Supreme Court affirmed the
exception and clarified “that the [ministerial] exception operates as an affirmative
defense to an otherwise cognizable claim, [instead of] a jurisdictional bar.” Id. at 706,
709 at fn.4. The Supreme Court then examined whether the exception applied to an
employee who had performed mixed secular and ministerial duties. Id. at 709. The
plaintiff in Hosanna-Tabor, Cheryl Perich, was a “called” teacher at a school operated
by Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”), “a
member congregation of the Lutheran Church-Missouri Synod, the second largest
Lutheran denomination in America.” Id. at 699. Teachers at Hosanna-Tabor were
classified as either “called” or “lay” teachers. Both performed the same duties, but
“ ‘called’ teachers [we]re regarded as having been called to their vocation by God
through the congregation.” Id.
{¶19} Perich began her employment as a lay teacher, but was later asked to
become a called teacher. Id. at 700. She accepted and “received a ‘diploma
vocation,’ designating her as a commissioned minister.” Id. Sometime later, she
became ill, was diagnosed with narcolepsy, and eventually terminated. Id. When the
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EEOC sought to bring a claim on her behalf under the Americans with Disabilities
Act, the parties disputed whether the claim was barred by the ministerial exception.
Id.
{¶20} In determining whether the ministerial exception applied, the
Supreme Court expressly stated that “the ministerial exception is not limited to the
head of a religious congregation.” Id. at 707. The court, however, refrained from
“adopt[ing] a rigid formula for deciding when an employee qualifies as a minister,”
instead choosing to examine the circumstances of Perich’s employment to determine
if the exception applied. Id.
{¶21} In performing its examination, the court noted that Perich held the
title of “Minister of Religion, Commissioned” and performed some ministerial duties
in the course of her employment. Id. at 707. The court commented that “although
such a title, by itself, does not automatically ensure coverage, the fact that an
employee has been ordained or commissioned as a minister is surely relevant, as is
the fact that a significant religious training and a recognized religious mission
underlie the description of the employee’s position.” Id. at 710.
{¶22} The court also examined Hosanna-Tabor’s treatment of Perich. It
found that the school had “held [her] out as a minister with a role distinct from that
of most of its members.” Id. at 707. It also examined how Perich had presented
herself. It found that Perich had “held herself out as a minister of the church by
accepting the formal call to religious service,” by claiming a housing tax exemption
available only for ministers, and by referring to herself as a minister. Id. at 707-708.
{¶23} After examining the circumstances of Perich’s employment, the court
found that Perich’s job duties “reflected a role in conveying the Church’s message
and carrying out its mission.” Id. at 708. The Supreme Court held that the
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ministerial exception applied, even though Perich had performed mixed ministerial
and secular functions, and the ministerial duties had consumed only a small amount
of her time―approximately 45 minutes a day. Id. Finally, the court noted that
“though relevant, it cannot be dispositive that others not formally recognized as
ministers by the church can perform the same functions.” Id. at 708.
{¶24} The court, however, stated that it was “express[ing] no view on
whether someone with Perich’s duties would be covered by the ministerial exception
in the absence of other considerations [it] had discussed,” nor was it expressing any
“view on whether the ministerial exception bars other types of suits, including
actions by employees alleging breach of contract or tortious conduct by their
employers.” Id. at 708, 710. The court concluded that there would be “time enough
to address the applicability of the exception to other circumstances, if and when they
ar[o]se.” Id. at 710.
{¶25} Justices Thomas and Alito wrote separate concurring opinions. Justice
Kagan joined Justice Alito’s concurrence. Justice Thomas agreed with the majority’s
decision to eschew a bright-line test or multi-factor analysis, noting that “whether an
employee is a minister is itself religious in nature and the answer will vary widely.” Id. at
710-711 (Thomas, J., concurring). He was concerned that attempts to formulate such a
test would “risk disadvantaging those religious groups whose beliefs, practices, and
membership are ‘outside of the mainstream’ or unpalatable to some.” Id. at 711. He
found Hosanna-Tabor’s sincere belief that Perich was a minister sufficient for him to
conclude her suit properly barred by the ministerial exception. Id.
{¶26} Justice Alito, who was joined by Justice Kagan, wrote separately to
“clarify his understanding of the significance of formal ordination and designation as a
‘minister’ in determining whether an employee of a religious group falls within the
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ministerial exception.” Id. at 711 (Alito, J., concurring). He noted that “[t]he First
Amendment protects the freedom of religious groups to engage in certain key religious
activities, including the conducting of worship services and other religious ceremonies
and rituals, as well as the critical process of communicating the faith. Accordingly
religious groups must be free to choose the personnel who are essential to the
performance of these functions.” Id. at 712.
{¶27} Justice Alito urged courts to focus upon these key functions performed
by the persons who work for religious institutions when determining whether the
ministerial exception applies. In his opinion, the ministerial exception should apply to
“any employee who leads a religious organization, conducts worship services, or
important religious ceremonies or rituals, or serves as a messenger or teacher of its
faith.” Id. at 711-712.
{¶28} Post Hosanna-Tabor, federal and state courts have found parochial
school teachers, music directors, and seminary professors to be “ministers” under
Hosanna-Tabor’s framework. See Herzog v. St. Peter Lutheran Church, 884
F.Supp.2d 668 (N.D.Ill.2012); Cannata v. Catholic Diocese of Austin, 700 F.3d 169,
176 (5th Cir.2012); Kirby v. Theological Seminary, No. 2010-CA-001798-MR, 2012
Ky.App. Unpub. LEXIS 1007 (July 27, 2012); Kant v. Theological Seminary, No.
2011-CA-000004-MR, 2012 Ky. App. Unpub. LEXIS 1014 (July 27, 2012).
{¶29} Fisher argues that the ministerial exception does not apply because
her duties at the Gate of Heaven Cemetery were not religious; the Archdiocese did
not hold her position out as a religious position; her position required no religious
training; and her position did not include conveying the church’s message. We
disagree.
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{¶30} Both the cemetery’s mission statement and employee handbook
required Fisher to acknowledge “the religious function” that she was performing and
the ultimate authority of the Archbishop in such matters. Fisher was responsible for
coordinating services in the chapel, working with grieving families, coordinating
services with various parishes, and attending grave-site services. She interacted with
clergy on a daily basis, and employed her status as a person “of the faith” to console
grieving families. Fisher conducted these duties in a liturgical setting replete with
religious statuary, photographs of the Pope and Archbishop, and a dispensary for
Rosaries.
{¶31} Fisher also underwent multi-year, doctrine-specific training at a
Jesuit Catholic University to better perform her job. She was involved in the
preparation and performance of religious rituals. As codirector of the cemetery, she
served in an indisputable leadership position, acting as the face of the Catholic
Church to thousands of grieving families. And like the plaintiff in Hosanna-Tabor,
she saw herself as part of a larger ministry.
{¶32} Fisher argues that because the Archdiocese replaced her with Crane,
who was a non-Catholic, the Archdiocese has conceded that status as a priest or
minister or membership in the Catholic Church was not a requirement for the
executive director of the cemetery. But Fisher has not cited any authority to support
her argument that Crane’s duties are relevant to a determination of Fisher’s status as
a “ministerial” employee. Rather, courts apply an analysis that is personal to the
individual plaintiff. See Hosanna-Tabor, 132 S.Ct. at 707-710, 181 L.Ed.2d 650,
(examining the facts and circumstances of Perich’s employment); see also Cannata,
700 F.3d at 176 (rejecting plaintiff’s argument that his position as a “music director”
could not have been a “lay minister position” in the Catholic Church because the
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church had previously hired an “openly gay music director” and hired non-Catholic
music directors at other churches within the diocese). Even if this court were to
consider Crane’s duties, the record shows that Crane is serving in a reformulated
position―one that now emphasizes business acumen―and therefore, any
comparison of Crane’s duties would not be dispositive of Fisher’s status as a
ministerial employee.
{¶33} The Catholic faith, like many other religions, has a focus on “life after
death.” The Archdiocese introduced evidence that burial rituals and beliefs, as
articulated in the Catechism of the Catholic Church, are central to its faith. The
cemetery’s mission statement and handbook expressly required Fisher to recognize
the importance of this “religious function.” Fisher’s role at the Gate of Heaven
Cemetery, moreover, helped further the mission of the Catholic Church in this
regard. Because Fisher’s job duties, training, and performance during her tenure at
the Gate of Heaven Cemetery demonstrate that she was a ministerial employee, the
Archdiocese was entitled to summary judgment on Fisher’s age-discrimination
claim.
{¶34} At oral argument, Fisher argued that the ministerial exception applied
only to discrimination claims, and thus, did not bar her promissory-estoppel and
intentional-infliction-of-emotional-distress claims. The Supreme Court in Hosanna-
Tabor, “expresse[d] no view on whether the exception bar[red] other types of suits,
including actions by employees alleging breach of contract or tortious conduct by
their religious employers.” 132 S.Ct. at 710, 181 L.Ed.2d 650. Several state courts,
however, have applied the ministerial exception to common-law claims, when they
stem directly from the individual’s employment and are inextricably entangled with
the employee’s discrimination claim. See Kant, No. 2011-CA-000004-MR, 2012
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Ky.App. Unpub. LEXIS 1014; Givens v. St. Adalbert Church, No.
HHDCV1260324595, 2013 Conn. Super. LEXIS 1704 (Conn Super. Ct. July 25,
2013); DeBruin v. St. Patrick Congregation, 2012 WI 94, 343 Wis.2d 83, 816
N.W.2d 878. Here, Fisher’s remaining claims for promissory estoppel and
intentional infliction of emotional distress are inextricably entangled with her age-
discrimination claim. As a result, the trial court properly granted summary
judgment to the Archdiocese on those claims as well.
Ecclesiastical Abstention Doctrine
{¶35} In addition to finding that Fisher was a “ministerial” employee, the
trial court also granted summary judgment to the Archdiocese on a separate ground,
namely that its adjudication of Fisher’s claims would require it to intrude into the
Archdiocese's internal affairs.
{¶36} In Watson v. Jones, 80 U.S. 679, 20 L.Ed. 666 (1872), the United
States Supreme Court held that the First Amendment bars the government from
interfering in the internal affairs of a church. Several federal and state courts have
recognized that Watson and its progeny set forth a separate basis for dismissing an
employee’s claims that is independent from the protections afforded by the
ministerial exception. McCallum v. Billy Graham Evangelistic Assn., 824 F.Supp.2d
644 (W.D.N.C.2011); Weiter v. Kurtz, No. 2011-CA-001058-MR, 2012 Ky.App.
Unpub. LEXIS 937 (Dec. 14, 2012). In Ohio, this exception is commonly referred to
as the “ecclesiastical abstention doctrine.” See, e.g., Smith v. White, 2d Dist.
Montgomery No. 25622, 2014-Ohio-130, ¶ 2.
{¶37} In Weiter v. Kurtz, for example, an at-will bookkeeper/receptionist
claimed that she had been wrongfully terminated for opposing the church’s
reassignment of a priest. Weiter at *2-3. While the Kentucky Court of Appeals
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concluded that she was not a ministerial employee, it nonetheless dismissed her claims
for wrongful termination and outrage on the basis that they involved ecclesiastical
concerns and were therefore, not appropriate for the court to determine under the First
Amendment. Id. at *23.
{¶38} Similarly, here, the resolution of Fisher’s claims would invariably
interject this court into the Archdiocese’s internal affairs. As set forth earlier in
paragraphs 3 through 7, and 30 through 34, the manner in which the Archdiocese
chooses to carry out its funeral rites clearly falls within the realm of ecclesiastical
decision-making. Thus, the Archdiocese was entitled to summary judgment on
Fisher’s claims for this additional reason. We, therefore, overrule Fisher’s sole
assignment of error and affirm the trial court’s judgment dismissing her claims.
Judgment affirmed.
DINKELACKER, P.J, concurs.
DEWINE, J., concurs separately.
DEWINE, J., concurring separately.
{¶39} I agree that the facts of this case amply demonstrate that Ms. Fisher’s
claims are barred by the First Amendment under what is commonly referred to as
the ministerial exception. Accordingly, I concur in judgment and in paragraphs 1-34
of the majority’s opinion.
{¶40} I write separately only because I fear that the final paragraphs of the
opinion may engender some confusion. The majority affirms the trial court’s
decision on the “separate ground” that adjudication of the dispute would intrude into
the Archdiocese’s internal affairs. It bases this “separate ground” on Watson v.
Jones, 80 U.S. 679, 20 L.Ed. 666 (1872), and its “progeny.” But, as the Supreme
Court has just recently reminded us, the line of cases delineating the ministerial
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exception are progeny of Watson. Hosana-Tabor Evangelical Lutheran Church and
School v. EEOC, __U.S.__, 132 S.Ct. 694, 704, 181 L.Ed.2d 650 (2012). Under the
ministerial exception, the state impermissibly interferes with the internal affairs of a
church when it dictates who the church may choose as a minister.
{¶41} The cases the majority cites deal with situations where religious
freedom protections apply even where an employee has been found not to be a
minister because adjudication of the dispute might nonetheless entangle the courts
in matters of church doctrine. Weiter v. Kurtz, No. 2011-CA-001058-MR, 2012
Ky.App. LEXIS 937, *18-19 (Dec. 14, 2012); McCallum v. Billy Graham Evangelistic
Assn., 824 F.Supp.2d 644, 651-652 (W.D.N.C.2011). It is certainly true that the Free
Expression and Establishment Clauses allow for autonomy in religious matters in
areas that extend beyond the selection of a church’s ministers. But here, having
found that Ms. Fisher is a minister for purposes of the exception, there is no need to
ponder whether a broader exception might apply to her employment-based claims if
she were not a minister.
Please note:
The court has recorded its own entry this date.
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