FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTEN BIEL, No. 17-55180
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-04248-
TJH-AS
ST. JAMES SCHOOL, A CORP., a
California non-profit corporation;
DOES, 2–50, inclusive; ST. JAMES OPINION
CATHOLIC SCHOOL, a California non-
profit corporation; DOE 1,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Terry J. Hatter, District Judge, Presiding
Argued and Submitted July 11, 2018
Pasadena, California
Filed December 17, 2018
Before: D. Michael Fisher, * Paul J. Watford,
and Michelle T. Friedland, Circuit Judges.
*
The Honorable D. Michael Fisher, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
2 BIEL V. ST. JAMES SCHOOL
Opinion by Judge Friedland;
Dissent by Judge Fisher
SUMMARY **
Employment Discrimination
The panel reversed the district court’s summary
judgment in favor of the defendant and remanded in an
employment discrimination action under the Americans with
Disabilities Act.
Based on the totality-of-the-circumstances test
articulated by the Supreme Court in Hosanna-Tabor
Evangelical Lutheran Church & School v. E.E.O.C., 565
U.S. 171 (2012), the panel held that the First Amendment’s
ministerial exception to generally applicable employment
laws did not bar a teacher’s claim against the Catholic
elementary school that terminated her employment. The
panel concluded that she did not qualify as a minister for
purposes of the exception. The panel considered whether the
school held the teacher out as a minister, whether her title
reflected ministerial substance and training, whether she
held herself out as a minister, and whether her job duties
included important religious functions.
Dissenting, Judge Fisher wrote that, considering all of
the circumstances of the teacher’s employment, she was a
“minister” for the purposes of the ministerial exception
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BIEL V. ST. JAMES SCHOOL 3
because of the substance reflected in her title and the
important religious functions she performed.
COUNSEL
Andrew S. Pletcher (argued), Cathryn G. Fund, and Joseph
M. Lovretovich, JML Law, Woodland Hills, California, for
Plaintiff-Appellant.
Jack Steven Sholkoff (argued), Ogletree Deakins Nash
Smoak & Stewart P.C., Los Angeles, California; Veronica
Fermin and Richard Chen, Ogletree Deakins Nash Smoak &
Stewart P.C., Costa Mesa, California; for Defendant-
Appellee.
Susan Ruth Oxford (argued), Attorney; Barbara L. Sloan,
Acting Assistant Attorney General; Jennifer S. Goldstein,
Associate General Counsel; James L. Lee, Deputy General
Counsel; Office of the General Counsel, Equal Employment
Opportunity Commission, Washington, D.C.; for Amicus
Curiae Equal Employment Opportunity Commission.
OPINION
FRIEDLAND, Circuit Judge:
Plaintiff Kristin Biel was fired from her fifth grade
teaching position at St. James Catholic School after she told
her employer that she had breast cancer and would need to
miss work to undergo chemotherapy. She now appeals the
district court’s summary judgment ruling that her subsequent
lawsuit against St. James under the Americans with
Disabilities Act (“ADA”) was barred by the First
4 BIEL V. ST. JAMES SCHOOL
Amendment’s “ministerial exception” to generally
applicable employment laws. We hold that, assessing the
totality of Biel’s role at St. James, the ministerial exception
does not foreclose her claim. We therefore reverse and
remand for further proceedings.
I.
Biel received a bachelor’s degree in liberal arts and a
teaching credential from California State University,
Dominguez Hills. After graduating in 2009, Biel worked at
two tutoring companies and as a substitute teacher at several
public and private schools. St. James, a Roman Catholic
parish school within the Archdiocese of Los Angeles, hired
Biel in March 2013 as a long-term substitute teacher. At the
end of that school year, St. James’s principal hired Biel as
the school’s full-time fifth grade teacher. Biel is herself
Catholic, and St. James prefers to hire Catholic teachers, but
being Catholic is not a requirement for teaching positions at
St. James. Biel had no training in Catholic pedagogy at the
time she was hired. Her only such training was during her
tenure at St. James: a single half-day conference where
topics ranged from the incorporation of religious themes into
lesson plans to techniques for teaching art classes.
Biel taught the fifth graders at St. James all their
academic subjects. Among these was a standard religion
curriculum that she taught for about thirty minutes a day,
four days a week, using a workbook on the Catholic faith
prescribed by the school administration. Biel also joined her
students in twice-daily prayers but did not lead them; that
responsibility fell to student prayer leaders. She likewise
attended a school-wide monthly Mass where her sole
responsibility was to keep her class quiet and orderly.
BIEL V. ST. JAMES SCHOOL 5
Biel’s contract stated that she would work “within [St.
James’s] overriding commitment” to Church “doctrines,
laws, and norms” and would “model, teach, and promote
behavior in conformity to the teaching of the Roman
Catholic Church.” St. James’s mission statement provides
that the school “work[s] to facilitate the development of
confident, competent, and caring Catholic-Christian citizens
prepared to be responsible members of their church[,]
local[,] and global communities.” According to the school’s
faculty handbook, teachers at St. James “participate in the
Church’s mission” of providing “quality Catholic education
to . . . students, educating them in academic areas and in . . .
Catholic faith and values.” 1 The faculty handbook further
instructs teachers to follow not only archdiocesan curricular
guidelines but also California’s public-school curricular
requirements.
In November 2013, Biel received a positive teaching
evaluation from St. James’s principal, Sister Mary Margaret,
measuring her performance in aspects both secular (e.g., her
lesson planning strategies) and religious (e.g., displaying
Church symbols in her classroom). The principal’s written
1
The dissent quotes extensively from the faculty handbook to
support its arguments about the extent of Biel’s religious role. It does so
as if there is no dispute that the handbook imposed binding requirements
on Biel’s employment and provided an accurate depiction of her duties.
But St. James did not rely on the faculty handbook in support of its
motion for summary judgment, which might have been because the
handbook’s force and effect were contested—it is at least unclear what
role, if any, the handbook played at the school and whether it actually
reflected what teachers at the school were expected to do in practice. For
example, Biel’s employment agreement referenced “policies in the
faculty handbook,” but said that “the policies do not constitute a
contractual agreement with [Biel].” At this stage of the proceedings, any
factual uncertainties must be viewed in Biel’s favor. See Fresno Motors,
LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014).
6 BIEL V. ST. JAMES SCHOOL
evaluation praised Biel’s “very good” work promoting a safe
and caring learning environment, noted that she adapted her
teaching methods to accommodate her students’ varied
learning styles, and observed that she encouraged social
development and responsibility. The principal also
identified some areas for improvement: for instance, Biel’s
students had many items on their desks and two students
were coloring in the pages of their books.
Less than six months after that evaluation—which was
her first and only formal evaluation at St. James—Biel
learned that she had breast cancer and informed the school
administration that her condition required her to take time
off to undergo surgery and chemotherapy. Sister Mary
Margaret told Biel a few weeks later that she would not
renew Biel’s contract for the next academic year, citing her
belief that Biel’s “classroom management” was “not strict”
and that “it was not fair . . . to have two teachers for the
children during the school year.”
Biel sued St. James in the United States District Court
for the Central District of California, alleging that her
termination violated the ADA, which prohibits employment
discrimination based on disability. See 42 U.S.C.
§ 12112(a). Following discovery, St. James moved for
summary judgment, arguing that the First Amendment’s
ministerial exception to generally applicable employment
laws barred Biel’s ADA claims. The district court agreed
and granted summary judgment for St. James.
II.
We review de novo a district court’s grant of summary
judgment. Brunozzi v. Cable Commc’ns, Inc., 851 F.3d 990,
995 (9th Cir. 2017). We also apply de novo review to
determinations of law as well as to mixed questions of law
BIEL V. ST. JAMES SCHOOL 7
and fact that implicate the Religion Clauses. Puri v. Khalsa,
844 F.3d 1152, 1157 (9th Cir. 2017).
III.
A.
Religious organizations enjoy a broad right to select their
own leaders. The Supreme Court confirmed in Hosanna-
Tabor Evangelical Lutheran Church & School v. E.E.O.C.
that, as part of that right, the First Amendment’s
Establishment and Free Exercise Clauses “bar the
government from interfering with the decision of a religious
group to fire one of its ministers.” 565 U.S. 171, 181 (2012);
see also U.S. Const. amend. I. The Court grounded this
principle in a longstanding historical and jurisprudential
concern with “political interference” in “matters of church
government as well as those of faith and doctrine.” Id. at
184, 186 (citations omitted). When the ministerial exception
applies, it categorically bars an employee’s suit under
otherwise generally applicable employment laws. Puri v.
Khalsa, 844 F.3d 1152, 1164 (9th Cir. 2017). When the
ministerial exception does not apply, “courts [may] decide
disputes involving religious organizations,” so long as they,
in accordance with the Religion Clauses, proceed “‘without
resolving [any] underlying controversies over religious
doctrine.’” Id. (quoting Maktab Tarighe Oveyssi Shah
Maghsoudi, Inc. v. Kianfar, 179 F.3d 1244, 1248 (9th Cir.
1999)). These principles guide our analysis here.
Biel does not dispute that St. James, as a part of the
Roman Catholic Archdiocese of Los Angeles, is the type of
religious organization that could potentially invoke the
ministerial exception as a defense. The disagreement here is
over whether Biel’s employment fell within the exception.
8 BIEL V. ST. JAMES SCHOOL
In Hosanna-Tabor, the Supreme Court expressly
declined to adopt “a rigid formula for deciding when an
employee qualifies as a minister,” and instead considered
“all the circumstances of [the plaintiff’s] employment.”
565 U.S. at 190. Hosanna-Tabor is the only case in which
the Supreme Court has applied the ministerial exception, so
its reasoning necessarily guides ours as we consider the
circumstances here.
Hosanna-Tabor involved a former teacher at a Lutheran
school, Cheryl Perich, who alleged that the school fired her
in violation of the ADA after she was diagnosed with
narcolepsy. Id. at 178–79. The Court focused on four major
considerations to determine if the ministerial exception
applied: (1) whether the employer held the employee out as
a minister, (2) whether the employee’s title reflected
ministerial substance and training, (3) whether the employee
held herself out as a minister, and (4) whether the
employee’s job duties included “important religious
functions.” Id. at 192. Based on the totality of the
circumstances, the Court concluded that Perich qualified as
a minister for purposes of the ministerial exception.
First, the evangelical Lutheran church that operated the
school in Hosanna-Tabor “held Perich out as a minister,
with a role distinct from that of most of its members.” Id. at
191. Its congregation granted her the title of “Minister of
Religion, Commissioned” after electing her to that position.
Id. In conjunction with that commission, the “congregation
undertook to periodically review Perich’s ‘skills of ministry’
. . . and to provide for her ‘continuing education as a
professional person in the ministry of the Gospel.’” Id.
Second, to be eligible to become a commissioned
minister, Perich needed a substantial amount of religious
training. She “had to complete eight college-level courses
BIEL V. ST. JAMES SCHOOL 9
in subjects including biblical interpretation, church doctrine,
and the ministry of the Lutheran teacher” and pass an oral
examination by a Lutheran college faculty committee. Id.
She also had to obtain the endorsement of her local Lutheran
synod by submitting letters of recommendation, a personal
statement, and “written answers to various ministry-related
questions.” Id. These training requirements took Perich six
years to complete.
Because of her status as a commissioned minister, Perich
was eligible for, and succeeded in obtaining, a special
category of teaching position: that of a “called” teacher. Id.
at 177–78. In contrast to “lay” teachers who had one-year
renewable terms, called teachers had open-ended contracts
that “could be rescinded only for cause and by a
supermajority vote of the congregation.” Id at 177. The
school hired lay teachers only when called teachers were
unavailable, even though all teachers performed the same
duties in the classroom. Id.
Third, Perich “held herself out as a minister of the
Church.” Id. at 191. She claimed a federal tax benefit
reserved for employees “earning their compensation” in “the
exercise of the ministry.” Id. at 192. And she described
herself as “feel[ing] that God [was] leading [her] to serve in
the teaching ministry.” Id.
Fourth, Perich had an “important role in transmitting the
Lutheran faith to the next generation.” Id. at 192. In addition
to teaching her fourth grade students various secular and
religious subjects, Perich led them in prayer three times a
day. Id. Twice a year, she also led a school-wide chapel
service at which she “cho[se] the liturgy, select[ed] the
hymns, and deliver[ed] a short message based on verses from
the Bible.” Id.
10 BIEL V. ST. JAMES SCHOOL
Only after describing all of these aspects of Perich’s
position did the Supreme Court hold: “In light of these
considerations—the formal title given Perich by the Church,
the substance reflected in that title, her own use of that title,
and the important religious functions she performed for the
Church—we conclude that Perich was a minister covered by
the ministerial exception.” Id.
Biel, by contrast, has none of Perich’s credentials,
training, or ministerial background. There was no religious
component to her liberal studies degree or teaching
credential. St. James had no religious requirements for her
position. And, even after she began working there, her
training consisted of only a half-day conference whose
religious substance was limited. Unlike Perich, who joined
the Lutheran teaching ministry as a calling, Biel appears to
have taken on teaching work wherever she could find it:
tutoring companies, multiple public schools, another
Catholic school, and even a Lutheran school.
Nor did St. James hold Biel out as a minister by
suggesting to its community that she had special expertise in
Church doctrine, values, or pedagogy beyond that of any
practicing Catholic. St. James gave her the title “Grade 5
Teacher.” Her employment was at-will and on a yearlong
renewable contract, unlike Perich’s unlimited term that
could only be ended by a supermajority vote of the
congregation. The dissent’s analysis of Biel’s title focuses
on her duties at the school—as opposed to her education,
qualifications, and employment arrangement—and thus
improperly collapses considerations that the Supreme Court
treated separately. 2 Looking only to what the Court treated
2
The dissent also ascribes the title “Catholic school educator” to
Biel, but nowhere in St. James’s briefing or summary judgment papers
BIEL V. ST. JAMES SCHOOL 11
as relevant to evaluating a job title, there is nothing religious
“reflected in” Biel’s title. Hosanna-Tabor, 565 U.S. at 192.
In contrast to Perich’s “Minister of Religion,
Commissioned,” and “called” teacher titles, it cannot be said
that Grade 5 Teacher “conveys a religious—as opposed to
secular—meaning.” 3 Conlon v. InterVarsity Christian
Fellowship, 777 F.3d 829, 834–35 (6th Cir. 2015).
Also in contrast to Perich, nothing in the record indicates
that Biel considered herself a minister or presented herself
as one to the community. She described herself as a teacher
and claimed no benefits available only to ministers.
Only with respect to the fourth consideration in
Hosanna-Tabor do Biel and Perich have anything in
common: they both taught religion in the classroom. Biel
taught lessons on the Catholic faith four days a week. She
also incorporated religious themes and symbols into her
overall classroom environment and curriculum, as the school
required. We do not, however, read Hosanna-Tabor to
indicate that the ministerial exception applies based on this
shared characteristic alone. If it did, most of the analysis in
Hosanna-Tabor would be irrelevant dicta, given that
Perich’s role in teaching religion was only one of the four
has St. James ever suggested that this general description of its
employees was part of Biel’s title.
3
We do not suggest that Biel’s lack of a ministerial title is
dispositive, nor do we “ma[ke] ordination status or formal title
determinative of the exception’s applicability.” Hosanna-Tabor
Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 202
(2012) (Alito, J., concurring). But, like the Supreme Court in Hosanna-
Tabor, we look to her title as shorthand for “the substance reflected in
that title.” Id. at 192.
12 BIEL V. ST. JAMES SCHOOL
characteristics the Court relied upon in reaching the
conclusion that she fell within the ministerial exception.
And even Biel’s role in teaching religion was not
equivalent to Perich’s. In Hosanna-Tabor, the Supreme
Court emphasized the importance of assessing both the
amount of time spent on religious functions and “the nature
of the religious functions performed.” 565 U.S. at 194
(emphasis added); see also id. at 204 (Alito, J., concurring)
(“What matters is that [the individual] played an important
role as an instrument of her church’s religious message and
as a leader of its worship activities.”). Biel’s role in Catholic
religious education was limited to teaching religion from a
book required by the school and incorporating religious
themes into her other lessons. Whereas Perich orchestrated
her students’ daily prayers, Biel’s students themselves led
the class in prayers. Biel gave students the opportunity to
lead the prayers and joined in, but she did not teach, lead, or
plan these devotions herself. Similarly, while Perich crafted
and led religious services for the school, Biel’s
responsibilities at St. James’s monthly Mass were only “to
accompany her students,” and “[t]o make sure the kids were
quiet and in their seats.” These tasks do not amount to the
kind of close guidance and involvement that Perich had in
her students’ spiritual lives.
B.
St. James argues that we should reach a contrary
conclusion in light of the Seventh Circuit’s recent decision
in Grussgott v. Milwaukee Jewish Day School, Inc., 882 F.3d
655 (7th Cir. 2018), which held that the ministerial exception
barred a Hebrew teacher’s employment discrimination suit
against a Jewish primary school that fired her after she was
diagnosed with a brain tumor. Even assuming Grussgott was
correctly decided, which we are not sure it was, the plaintiff
BIEL V. ST. JAMES SCHOOL 13
in Grussgott more closely resembled Perich than Biel does.
Although the plaintiff in Grussgott lacked a formal religious
title, she had obtained a certification in a Jewish curricular
program called Tal Am—a curriculum that involved
integrating religious teachings into Hebrew lessons, as the
Seventh Circuit noted in its analysis of the plaintiff’s job
title. Id. at 659. The plaintiff had also “tout[ed] significant
religious teaching experience,” which “was a critical factor
in the school hiring her.” Id. at 659. She also prayed and
performed rituals with her students. Id. at 660. For the
reasons discussed above, Biel’s role was less ministerial than
that of the plaintiff in Grussgott.
The other post-Hosanna-Tabor cases on which St. James
relies are likewise not analogous to this one. All of the
plaintiffs in those cases had responsibilities that involved
pronounced religious leadership and guidance. 4 In contrast,
although Biel taught religion, the other considerations that
guided the reasoning in Hosanna-Tabor and its progeny are
4
See, e.g., Fratello v. Archdiocese of New York, 863 F.3d 190, 205–
08 (2d Cir. 2017) (principal who oversaw daily prayers, supervised
planning for Masses, delivered religious speeches, and was required to
obtain catechist certification and demonstrate “proficiency” in religious
areas); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 835–
36 (6th Cir. 2015) (certified “spiritual director” for an organization with
the mission to evangelize students on college campuses whose duties
included assisting others in finding “intimacy with God and growth in
Christ-like character”); Cannata v. Catholic Diocese of Austin, 700 F.3d
169, 177-78 (5th Cir. 2012) (Church music director who independently
selected music for Mass, trained cantors, and was “a lay liturgical
minister actively participating in the sacrament”); Temple Emanuel of
Newton v. Mass. Comm’n Against Discrimination, 975 N.E.2d 433, 443–
44 (Mass. 2012) (plaintiff who taught only religious subjects at a
synagogue’s religious school that convened only after the regular school
day and on Sundays and did not provide any instruction in non-religious
subjects).
14 BIEL V. ST. JAMES SCHOOL
not present here. Biel did not have ministerial training or
titles. And she neither presented herself as nor was
presented by St. James as a minister. At most, only one of
the four Hosanna-Tabor considerations weighs in St.
James’s favor. No federal court of appeals has applied the
ministerial exception in a case that bears so little
resemblance to Hosanna-Tabor. See, e.g., Grussgott,
882 F.3d at 661 (applying exception where “two of the four
Hosanna-Tabor factors are present”); Conlon, 777 F.3d at
835 (same). We decline St. James’s invitation to be the first.
C.
A contrary rule, under which any school employee who
teaches religion would fall within the ministerial exception,
would not be faithful to Hosanna-Tabor or its underlying
constitutional and policy considerations. Such a rule would
render most of the analysis in Hosanna-Tabor irrelevant. It
would base the exception on a single aspect of the
employee’s role rather than on a holistic examination of her
training, duties, title, and the extent to which she is tasked
with transmitting religious ideas.
Such a rule is also not needed to advance the Religion
Clauses’ purpose of leaving religious groups free to “put
their faith in the hands of their ministers.” Hosanna-Tabor,
565 U.S. at 188. As the Supreme Court recounted in
Hosanna-Tabor, the historical episodes that motivated the
adoption of the Religion Clauses included struggles over
whether the choice of parish ministers would be made by
local vestries or instead by the British monarch, the Bishop
of London, or colonial governors. Id. at 183. The Court
likewise cited First Amendment architect James Madison’s
opinion that the President ought to have no role in the
appointment of the Catholic Church’s leadership in the
territory of the Louisiana Purchase. Id. at 184. Although the
BIEL V. ST. JAMES SCHOOL 15
Supreme Court held that “the ministerial exception is not
limited to the head of a religious congregation,” id. at 190,
the focus on heads of congregations and other high-level
religious leaders in the historical backdrop to the First
Amendment supports the notion that, to comport with the
Founders’ intent, the exception need not extend to every
employee whose job has a religious component. 5
The First Amendment “insulates a religious
organization’s ‘selection of those who will personify its
beliefs.’” Puri, 844 F.3d at 1159 (quoting Hosanna-Tabor,
565 U.S. at 188). But it does not provide carte blanche to
disregard antidiscrimination laws when it comes to other
employees who do not serve a leadership role in the faith.
We cannot read Hosanna-Tabor to exempt from federal
employment law all those who intermingle religious and
secular duties but who do not “preach [their employers’]
5
Indeed, Congress has specified that nothing in the ADA or Title
VII prohibits a religious organization from favoring members of a
particular religion in its hiring decisions. See 42 U.S.C. § 12113(d)(1)
(stating that the ADA “shall not prohibit a religious [organization] from
giving preference in employment to individuals of a particular religion
to perform work connected with the carrying on . . . of its activities.”);
42 U.S.C. § 2000e-1(a) (stating that Title VII “shall not apply to . . . a
religious [organization] with respect to the employment of individuals of
a particular religion to perform work connected with the carrying on . . .
of its activities.”). But Congress did not exempt religious organizations
from the ADA’s or Title VII’s prohibitions on discriminating on the basis
of disability, race, color, sex, or national origin. That choice, coupled
with the presumption of constitutionality enjoyed by congressional
legislation, makes us especially hesitant to invalidate unnecessarily vast
swaths of federal law as applied to many employees of religious
organizations. See United States v. Watson, 423 U.S. 411, 416 (1976)
(recognizing that a “strong presumption of constitutionality [is] due to
an Act of Congress” (quoting United States v. Di Re, 332 U.S. 581, 585
(1948)).
16 BIEL V. ST. JAMES SCHOOL
beliefs, teach their faith, . . . carry out their mission . . . [and]
guide [their religious organization] on its way.” 565 U.S. at
196.
IV.
For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment to St. James and
REMAND. 6
FISHER, Circuit Judge, dissenting:
This appeal concerns whether Kristen Biel, a fifth grade
teacher at a Roman Catholic elementary school, was a
“minister” for the purposes of the ministerial exception.
Contrary to the majority, I conclude that Biel was a minister.
As a result, I would affirm the District Court’s decision that
Biel is barred from bringing an action against St. James
under the Americans with Disabilities Act.
6
On remand, St. James may of course argue that it did not violate
the ADA because its stated pedagogical and classroom management
concerns—not Biel’s medical condition—were the basis for its decision
not to renew Biel’s contract. See Snead v. Metro. Prop. & Cas. Ins. Co.,
237 F.3d 1080, 1093 (9th Cir. 2001) (explaining that a nondiscriminatory
and non-pretextual reason for termination is a defense to an ADA claim).
Contrary to the dissent’s implication, had St. James asserted a religious
justification for terminating Biel, our holding would neither have
commanded nor permitted the district court to assess the religious
validity of that explanation, but rather only whether the proffered
justification was the actual motivation for termination, or whether not
wanting to accommodate Biel’s disability was the motivation.
BIEL V. ST. JAMES SCHOOL 17
I
During Biel’s one year of service as a full-time fifth
grade teacher at St. James, her duties included teaching
religion as well as secular subjects. She taught 30-minute
religion classes four days a week. In her religion class, she
used the curriculum from Coming to God’s Life, a Catholic
textbook chosen by the school principal, Sister Mary
Margaret. Using that curriculum, Biel taught and tested the
students in her religion class about the Catholic sacraments,
the lives of Catholic Saints, Catholic prayers, Catholic social
teaching, Gospel stories, and church holidays. In her secular
classes, she was expected to incorporate Catholic teachings.
She attended, as required by the school, a one day conference
at the Los Angeles Religious Education Congress that
covered methods of incorporating God into lessons.
To get a complete picture of Biel’s role at St. James, we
look at various documents concerning her employment,
including her employment contract, a performance review,
and the faculty handbook. 1 Biel signed an employment
contract with St. James which indicated that her title was
“Grade 5 Teacher.” By signing the contract, Biel indicated
that she understood that St. James’s mission was “to develop
and promote a Catholic School Faith Community within the
1
The faculty handbook is specifically referenced in Biel’s
employment contract: “You shall be familiar with, and comply with the
School’s personnel policies and procedures . . . including policies in the
faculty handbook.” The handbook provides insight into St. James’s
expectations for faculty at the school. Like Biel’s performance review,
the handbook is a reflection of the role St. James intended Biel to fill.
Regardless of whether it imposed contractual obligations on Biel, it is
helpful to our determination of whether the relationship between Biel
and St. James was that of a minister and church or merely an employee-
employer relationship.
18 BIEL V. ST. JAMES SCHOOL
philosophy of Catholic education as implemented at [St.
James], and the doctrines, laws, and norms of the Catholic
Church.” The contract also imposed several requirements on
Biel, mandating that she:
• perform “[a]ll duties and responsibilities
. . . within [St. James’s] overriding
commitment [to developing the faith
community],”
• “model, teach, and promote behavior in
conformity to the teaching of the Roman
Catholic Church,”
• and “participate in School activities
including School liturgical activities, as
requested.”
Sister Mary Margaret conducted an observational review
of Biel’s teaching performance during her first semester as
the fifth grade teacher. Her review included a section
evaluating “Catholic Identity Factors” in which she noted
that there was “visible evidence of signs, sacramental [sic],
traditions of the Roman Catholic Church in the classroom,”
and that the “[c]urriculum include[d] Catholic values infused
through all subject areas.”
In the Faculty/Staff Handbook, the school’s mission
statement was supplemented by nine “basic values” guiding
the school faculty, including:
• Faith – “To personally demonstrate our
belief in God . . . to actively take part in
worship-centered school events”; and
BIEL V. ST. JAMES SCHOOL 19
• Joy – “To delight in and enjoy our noble
position as Catholic educators . . . .”
The handbook also included the “Code of Ethics for
Professional Educators in Catholic Schools” which
explained that “[e]ducation has always been one of the most
important missions of the Church. Its success depends upon
the professional competence, quality, and commitment of
the teacher who chooses to teach in a Catholic school.” This
Code of Ethics detailed various commitments that Catholic
school teachers in the Archdiocese of Los Angeles were
expected to fulfill. It explained that “Catholic school
educators . . . are called to: Promote the peace of Christ in
the world,” and to:
Seek and encourage persons who live a life
consonant with gospel values and Catholic
Church teachings [and] pursue the apostolate
of teaching through the following:
- modeling the faith life and witness to the
Faith Community on the parish, diocesan,
national, and world levels;
- exemplifying the teachings of Jesus
Christ by dealing with children and adults
in true love and justice.
In a section titled “Statement of Principles,” the
handbook listed “religious development” as one of the five
goals of a St. James Catholic education. To achieve this goal,
“[the staff] guide the spiritual formation of the student . . .
and hope to help each child strengthen his/her personal
relationship with God.” The handbook further explained that
staff implement that goal by:
20 BIEL V. ST. JAMES SCHOOL
Teaching the Gospel message and Catholic
doctrine in such a way as to make them
relevant to everyday life . . . Integrating
Catholic thought and principles into secular
subjects . . . Celebrating regularly scheduled
Masses and seasonal prayer . . . Encouraging
student participation in liturgical services . . .
Providing opportunities for developing
personal prayer and shared prayer in the
classroom.
In April of her year as the fifth grade teacher, Biel was
diagnosed with breast cancer. She informed Sister Mary
Margaret of the diagnosis and that she would begin
treatments in May. As described in the majority opinion,
Sister Mary Margaret informed Biel that St. James would not
renew her contract. Biel filed suit under the ADA, and St.
James moved for summary judgment, relying on the
ministerial exception. The District Court found the
ministerial exception barred Biel’s claims and granted the
motion. Biel filed this appeal.
II
The ministerial exception is an affirmative defense that
“precludes application” of employment discrimination laws,
like the ADA, to “claims concerning the employment
relationship between a religious institution and its
ministers.” Hosanna-Tabor Evangelical Lutheran Church &
Sch. v. E.E.O.C., 565 U.S. 171, 188 (2012). I agree with the
majority, that the Supreme Court’s holding and reasoning in
Hosanna-Tabor guides our analysis here.
The ministerial exception flows from the First
Amendment; “[t]he Establishment Clause prevents the
Government from appointing ministers, and the Free
BIEL V. ST. JAMES SCHOOL 21
Exercise Clause prevents it from interfering with the
freedom of religious groups to select their own.” Id. at 184.
The exception bars discrimination claims because “the
ministerial relationship lies so close to the heart of the church
that it would offend the Free Exercise Clause simply to
require the church to articulate a religious justification for its
personnel decisions.” Bollard v. Cal. Province of the Soc’y
of Jesus, 196 F.3d 940, 946 (9th Cir. 1999); see also N.L.R.B.
v. Catholic Bishop of Chi., 440 U.S. 490, 502 (1979) (In
discussing jurisdiction over religious schools, the Court
observed “[i]t is not only the conclusions that may be
reached by the Board which may impinge on rights
guaranteed by the Religion Clauses, but also the very process
of inquiry leading to findings and conclusions.”).
The purpose of the exception is to “ensure[] that the
authority to select and control who will minister to the
faithful—a matter ‘strictly ecclesiastical’—is the church’s
alone.” Hosanna-Tabor, 565 U.S. at 194–95 (citation
omitted) (quoting Kedroff v. St. Nicholas Cathedral of
Russian Orthodox Church in N. Am., 344 U.S. 94, 119
(1952)). Selection of such persons is a “core matter of
ecclesiastical self-governance with which the state may not
constitutionally interfere.” Bollard, 196 F.3d at 946. 2
2
The majority suggests that because the ADA and Title VII lack a
religious organization exemption, courts must take care not to
“invalidate unnecessarily vast swaths of federal law as applied to many
employees of religious organizations.” Maj. Op. at 15 n.5. However, the
ministerial exception is grounded in the First Amendment and operates
independently of any exception granted by Congress. In Bollard, we held
that “[d]espite the lack of a statutory basis for the ministerial exception,
and despite Congress’ apparent intent to apply Title VII to religious
organizations as to any other employer, courts have uniformly concluded
that the Free Exercise and Establishment Clauses . . . require a narrowing
22 BIEL V. ST. JAMES SCHOOL
The term “minister” is a term of art broader than the
word’s ordinary meaning. It “encompasses more than a
church’s ordained ministers.” Alcazar v. Corp. of the
Catholic Archbishop of Seattle, 627 F.3d 1288, 1291 (9th
Cir. 2010). This is especially important because in our
religiously diverse society, the ministerial exception
recognized in Hosanna-Tabor must transcend the Protestant
Christian concept of “ministers” to protect self-governance
of all organizations of religious purpose. Hosanna-Tabor,
565 U.S. at 198 (Alito, J., concurring).
In Hosanna-Tabor, the teacher was a minister within the
Protestant Christian framework, serving at an Evangelical
Lutheran church and school. Courts must take care to apply
the principles from Hosanna-Tabor without discounting
ministerial relationships in contexts that do not bear the
obvious linguistic markers that were available for the
Court’s consideration in Hosanna-Tabor. The ministerial
exception “insulates a religious organization’s ‘selection of
those who will personify its beliefs’” regardless of whether
they bear the standard markers of a minister. Puri v. Khalsa,
844 F.3d 1152, 1159 (9th Cir. 2017) (quoting Hosanna-
Tabor, 565 U.S. at 188). The totality of the circumstances
approach serves that end, and “[a]s the Supreme Court has
made clear, there is no ‘rigid formula for deciding when an
employee qualifies as a minister.’” Id. (quoting Hosanna-
Tabor, 565 U.S. at 190).
construction” to prevent “constitutionally impermissible interference by
the government.” 196 F.3d at 945. We must apply the ministerial
exception in this case “in order to reconcile the statute with the
Constitution” regardless of whether the ADA contains an exception. Id.
at 947.
BIEL V. ST. JAMES SCHOOL 23
To determine whether Biel is a minister for purposes of
the exception, I proceed in three parts. First, I will
summarize and examine the Supreme Court’s analysis of the
exception in Hosanna-Tabor. Second, I will consider how to
weigh the four Hosanna-Tabor factors in the context of this
case. Finally, I consider all of the circumstances of Biel’s
employment and conclude that the ministerial exception
applies.
A. Analytical framework provided by the Supreme
Court in Hosanna-Tabor
In Hosanna-Tabor, the Supreme Court concluded that a
“called teacher” at a Lutheran elementary school was a
minister for the purposes of the ministerial exception.
565 U.S. at 190. The Court evaluated “all the circumstances
of her employment.” Id. Within that totality of the
circumstances approach, the Court considered four factors:
“[1] the formal title given [to the teacher] by the Church,”
which the majority describes as whether the employer held
out the employee as a minister, “[2] the substance reflected
in that title, [3] her own use of that title, and [4] the important
religious functions she performed for the Church.” Id. at 192.
These factors indicate the importance of fact-intensive
analysis in the application of the ministerial exception.
Justice Alito, joined by Justice Kagan, concurred to
clarify that the employee’s function, rather than his or her
title or ordination status, is the key. Hosanna-Tabor,
565 U.S. at 198 (Alito, J., concurring). He went on to write
that the exception “should apply to any ‘employee’ who . . .
serves as a messenger or teacher of [the organization’s]
faith.” Id. at 199. He explained that “[r]eligious autonomy
means that religious authorities must be free to determine
who is qualified to serve in positions of substantial religious
importance,” which includes “those who are entrusted with
24 BIEL V. ST. JAMES SCHOOL
teaching and conveying the tenets of the faith to the next
generation.” Id. at 200. Finally, Justice Alito described the
previous approach of the appellate courts, including this
Court, as a functional approach looking more at the functions
of individuals than at their titles, and concluded that “[t]he
Court’s opinion today should not be read to upset this
consensus.” Id. at 204.
Justice Thomas also concurred, explaining that, in his
view, courts applying the ministerial exception must “defer
to a religious organization’s good-faith understanding of
who qualifies as its minister.” Id. at 196 (Thomas, J.,
concurring). Justice Thomas reasoned that a “religious
organization’s right to choose its ministers would be hollow
. . . if secular courts could second-guess the organization’s
sincere determination that a given employee is a ‘minister.’”
Id. at 197. This approach, he maintained, best serves the
goals of the Free Exercise and Establishment Clauses
because it does not risk causing religious groups—especially
those outside of the mainstream—“to conform [their] beliefs
and practices regarding ‘ministers’ to the prevailing secular
understanding” for fear of being denied the exception. Id.
(citing Corp. of Presiding Bishop of Church of Jesus Christ
of Latter-day Saints v. Amos, 483 U.S. 327, 336 (1987)).
Since the publication of Hosanna-Tabor, we and other
circuits have relied on a “totality-of-the-circumstances test.”
Grussgott v. Milwaukee Jewish Day Sch., Inc., 882 F.3d 655,
661 (7th Cir. 2018), cert. denied, ___ S. Ct. ___ (2018); see
Puri, 844 F.3d at 1160 (holding that, on the pleadings, the
exception did not apply because of insufficient proof of
religious duties, lack of presentation of the individuals as
religious leaders, and absence of religious substance in the
positions); Conlon v. InterVarsity Christian Fellowship,
777 F.3d 829, 835 (6th Cir. 2015) (finding only two of the
BIEL V. ST. JAMES SCHOOL 25
four factors applicable, but still holding that the “ministerial
exception clearly applies”); Fratello v. Archdiocese of New
York, 863 F.3d 190, 204–05 (2d Cir. 2017) (“Hosanna-
Tabor . . . neither limits the inquiry to [the four factors it
enumerates] nor requires their application in every case.”). I
will do the same here.
B. The Four Factors
i. Formal title
Biel argues that she is not a minister because nothing in
her formal title, Grade 5 Teacher, reflects a ministerial role.
“[A]n employee is more likely to be a minister if a religious
organization holds the employee out as a minister by
bestowing a formal religious title.” Puri, 844 F.3d at 1160.
In Hosanna-Tabor, this factor weighed in favor of applying
the exception because the school employed both “lay” and
“called” teachers, and the plaintiff was “called.” 565 U.S. at
177–78. “When Hosanna-Tabor extended her a call, it issued
her a ‘diploma of vocation’ according her the title ‘Minister
of Religion, Commissioned.’” Id. at 191. Here, Biel never
received any diploma or commissioning from the parish
comparable to the teacher in Hosanna-Tabor. Her title is
apparently secular.
However, as the majority recognizes, a title is merely an
expression of how an employer holds its employee out to the
community. Part of St. James’s expression of Biel’s role in
the school is her designation as a “Catholic school
educator[]” in the school’s Code of Ethics. The Code
conveyed to the community that Catholic school educators
such as Biel would, among other things, “[p]romote the
peace of Christ in the world.” Biel’s title is presumably both
“Catholic school educator[]” and “Grade 5 Teacher,” the
26 BIEL V. ST. JAMES SCHOOL
former contextualizing the latter. St. James thus holds Biel
out as a distinctively Catholic Grade 5 Teacher.
This first factor could therefore indicate that Biel was a
minister. In fact, some of the “called” language that was
important to determining that the teacher in Hosanna-Tabor
was a minister is also present in the faculty handbook in this
case. For instance, in the Code of Ethics, under
“Commitment to the Community,” the handbook reads “As
Catholic school educators, we are called to . . . [p]romote the
peace of Christ in the world.” (emphasis added).
Although it seems strained to read Biel’s title as “Grade
5 Teacher” without considering references in the handbook
to St. James’s teachers as “Catholic school educators,” such
a reading may be appropriate at this stage in order to draw
reasonable inferences in Biel’s favor. Therefore, in the
Hosanna-Tabor analysis, I consider Biel’s title to be secular.
This factor therefore weighs against recognizing her as a
minister. However, her title is not dispositive. Id. at 193
(“[A] title, by itself, does not automatically ensure
coverage.”); id. at 202 (Alito, J., concurring) (a ministerial
title is “neither necessary nor sufficient.”).
ii. Substance reflected in the title
In Hosanna-Tabor, this factor weighed in favor of
applying the exception. The called teacher’s title of
“commissioned minister” reflected “a significant degree of
religious training,” including college-level theology,
“followed by a formal process of commissioning.”
Hosanna-Tabor, 565 U.S. at 191. In contrast, Biel received
no religious commissioning and her formal education
consisted of a university degree in liberal studies and a
teaching certification. She was not required to be endorsed
by the parish or to go through extensive training.
BIEL V. ST. JAMES SCHOOL 27
The majority focuses narrowly on educational and
practical training for the second factor in the Hosanna-Tabor
analysis. However, I do not understand this second factor to
be limited to education and practical training. The substance
reflected in a title is broader than mere educational or
practical prerequisites. See Grussgott, 882 F.3d at 659–660.
Considering other elements under the second factor
facilitates the ministerial exception’s application to different
religions, including those that may not require formal
training for ministers. It also compliments Justice Thomas’s
emphasis on the religious organization’s own sincere
determination of who ministers the faith. Hosanna-Tabor,
565 U.S. at 196–97 (Thomas, J., concurring). If we expected
all ministers to receive formal religious education, we would
improperly restrict the exception.
Instead, I conclude that the substance underlying Biel’s
title at St. James consists of the school’s expectation, to
which Biel specifically consented in her employment
contract, that she propagate and manifest the Catholic faith
in all aspects of the role. Importantly, the substance of Biel’s
title of Grade 5 Teacher encompassed the role of religion
teacher.
The approach of analyzing the second factor as reflective
of how the religious organization understood an employee’s
role is also consistent with at least two of our sister Circuits’
interpretations. In Fratello, the Second Circuit ultimately
concluded that a “lay principal” of a Catholic elementary
school was a minister. 863 F.3d at 206, 210. In evaluating
this title, the court observed that though the principal was
“not strictly required to meet any formal religious-education
requirements, the substance reflected in that title as used by
the defendants and conveyed to the plaintiff entails
proficiency in religious leadership.” Id. at 208. Similarly, the
28 BIEL V. ST. JAMES SCHOOL
Seventh Circuit in Grussgott held that the second factor
weighed in favor of applying the exception to a Hebrew
language teacher at a Jewish school, not only because of her
religious training, but also because “the substance of [the
teacher’s] title as conveyed to her and as perceived by others
entails the teaching of the Jewish religion to students.”
882 F.3d at 659–60.
The majority distinguishes Grussgott based on the
teacher’s Tal Am certification, but in Grussgott, the Seventh
Circuit specifically noted that there was nothing in the record
indicating what the Tal Am certification entailed beyond
completion of seminars. Id. at 659. Though the Seventh
Circuit found that the teacher’s Tal Am certification was not
material to its analysis, the court nevertheless held that the
teacher’s curriculum and experience teaching religion
“support[ed] the application of the ministerial exception” at
the second factor. Id. at 660. Contrary to the majority’s
conclusion, this case is not distinguishable from Grussgott
based on a certification that may or may not have indicated
any significant degree of education or training. The Seventh
Circuit’s consideration of curriculum and teaching
experience under the second Hosanna-Tabor factor supports
the conclusion that this factor encompasses more than just
training.
Even more explicitly than in Grussgott, the substance of
Biel’s title as the Grade 5 Teacher encompasses her
responsibility for all facets of her pupils’ education, which
unquestionably includes religion class and imparting the
substantive teachings of the Catholic faith. In addition to her
role as the religion teacher, Biel agreed in her contract that
she “understood that the mission of the School [was] to
develop and promote a Catholic School Faith Community
within the philosophy of Catholic education as implemented
BIEL V. ST. JAMES SCHOOL 29
at the School, and the doctrines, laws and norms of the
Catholic Church.” The faculty handbook extensively
prescribes how the faculty should model the Catholic faith
and promote religious development. Additionally, Biel was
required to attend a Catholic education conference, which
focused on incorporating religion into lesson plans. Finally,
her contract was approved by both St. James’s principal,
Sister Mary Margaret, and the pastor of the parish, and it
clarified that her role as a fifth grade teacher included
teaching religion, specifically the Catholic faith. Because all
of these expectations were included in Biel’s role and in the
title given to her by St. James, I conclude that her title
reflected significant religious substance. This factor
therefore weighs in favor of applying the exception.
iii. Biel’s own use of the title
“[A]n employee who holds herself out as a religious
leader is more likely to be considered a minister.” Puri,
844 F.3d at 1160. In Hosanna-Tabor, the teacher “held
herself out as a minister of the Church” in several ways,
including “accepting the formal call to religious service,”
“claim[ing] a special housing allowance on her taxes”
available only to ministers, and indicating, post-termination,
“that she regarded herself as a minister at Hosanna-Tabor.”
565 U.S. at 191–92. Here, although Biel taught her students
the tenets of the Catholic faith, she did not present herself to
the public as a minister. See Conlon, 777 F.3d at 835
(concluding that this factor was not present when the
employee did not have a “public role of interacting with the
community as an ambassador of the faith”). This factor
therefore weighs against concluding that Biel was a minister.
30 BIEL V. ST. JAMES SCHOOL
iv. Important religious functions performed
In Puri, this Court emphasized that employees who have
“a role in conveying the Church’s message and carrying out
its mission” are likely ministers “even if [they] devote[] only
a small portion of the workday to strictly religious duties.”
Puri, 844 F.3d at 1160 (internal citation and alterations
omitted). In Hosanna-Tabor, the teacher was responsible for
“‘leading others toward Christian maturity’ and ‘teaching
faithfully the Word of God, the Sacred Scriptures, in its truth
and purity and as set forth in all the symbolical books of the
Evangelical Lutheran Church.’” 565 U.S. at 192 (alterations
omitted) (quoting the record). The Hosanna-Tabor teacher
taught religion four days a week, led her students in prayer
three times a day, took students to school-wide chapel
services once a week, and led that chapel service
approximately twice a year. Id. Based on those duties, the
Supreme Court concluded that “[a]s a source of religious
instruction, [the teacher] performed an important role in
transmitting the Lutheran faith to the next generation.” Id.
The Court indicated that it would be error to give too much
weight to secular duties performed in addition to religious
ones or to the fact that “others not formally recognized as
ministers . . . perform the same functions.” Id. at 193.
Biel’s duties as the fifth grade teacher and religion
teacher are strikingly similar to those in Hosanna-Tabor.
She taught religion class four times a week based on the
catechetical textbook Coming to God’s Life. In that class, she
was responsible for instructing her students on various areas
of Catholic teachings, including Catholic sacraments,
Catholic Saints, Catholic social teaching, and Catholic
doctrine related to the Eucharist and the season of Lent. She
prayed Catholic prayers with her students twice each day and
BIEL V. ST. JAMES SCHOOL 31
attended monthly school mass with her class. 3 Additionally,
she, like all teachers at St. James, was evaluated on
incorporating “signs, sacramental [sic], [and] traditions of
the Roman Catholic Church in the Classroom” and
“infus[ing] [Catholic values] through all subject areas.” “As
a source of religious instruction, [she] performed an
important role in transmitting the [Catholic] faith to the next
generation.” Id. at 192. For these reasons, this factor weighs
heavily in favor of considering Biel to be a minister. Biel
was “expected to model, teach, and promote behavior in
conformity to the teaching of the Roman Catholic Church”
according to her employment contract, and was subject to
termination if she failed to meet that expectation.
This analysis comports with the approach of the Seventh
Circuit which held that a Hebrew language teacher
“performed ‘important religious functions’ for the school”
when she “taught her students about Jewish holidays, prayer,
and the weekly Torah readings . . . [and] practiced the
religion alongside her students by praying with them and
performing certain rituals.” Grussgott, 882 F.3d at 660
(quoting Hosanna-Tabor, 565 U.S. at 192). The duties of the
teacher in Grussgott are found in Biel’s case as well. My
3
The majority interprets Biel’s testimony to be that she joined her
students in prayer, but did not lead the fifth graders in prayer. However,
the record indicates that Biel’s prayer leaders led the class in prayer: “I
had prayer leaders. The prayers that were said in the classroom were said
mostly by the students. We had prayer leaders.” The faculty handbook
set the expectation that Biel would “[p]rovid[e] opportunities for
developing personal prayer and shared prayer in the classroom.” Under
“Daily Prayer” in the “Staff Guidelines and Responsibilities” section of
the faculty handbook, there is a school-wide policy of beginning and
ending the day with prayer. To accept Biel’s testimony that she merely
joined the fifth graders in their prayers minimizes significant portions of
the record.
32 BIEL V. ST. JAMES SCHOOL
conclusion on this factor is also consistent with the Sixth
Circuit’s approach in Conlon, which ruled that job duties
such as “assist[ing] others to cultivate ‘intimacy with God
and growth in Christ-like character through personal and
corporate spiritual disciplines’” constituted important
religious functions. 777 F.3d at 835.
It is clear that Biel’s job duties “reflected a role in
conveying the Church’s message and carrying out its
mission.” Hosanna-Tabor, 565 U.S. at 192. However, Biel
argues that whatever her duties were, she executed them in a
decidedly secular manner. She claims that her religious
instruction was straight out of a textbook—just like with
secular classes—and that her only job at mass was “to make
sure the kids were quiet and in their seats.” Appellant’s Br.
at 47. Her claim that she executed her duties in a secular
manner directly conflicts with her contractual agreement to
“integrate Catholic thought” into subjects, “celebrate
regularly scheduled Masses . . . with students,” and
“encourage student participation in liturgical services.” In
fact, under “Staff Guidelines and Responsibilities” in the
handbook, teachers are specifically expected to do more than
merely keep their elementary students quiet during mass—
they are expected to prepare their students for mass:
“Teachers prepare their students to be active participants at
Mass, with particular emphasis on Mass responses.” Biel
indicated that her students participated in mass by presenting
the gifts, i.e., the Eucharist. Biel’s students were trained to
present the gifts, and Biel was available to review the
practice with them if necessary. Biel’s role at mass was also
to personally demonstrate her faith through active
participation in “worship-centered school events.” Biel’s
role as an “exemplar[] of practicing” Catholics would not
make her a minister if that were her only religious function.
See E.E.O.C. v. Miss. College, 626 F.2d 477, 485 (5th Cir.
BIEL V. ST. JAMES SCHOOL 33
1980). But because the determination of who is a minister is
a totality of the circumstances test, I consider “all the
circumstances of her employment” in the assessment of her
role. Hosanna-Tabor, 565 U.S. at 190.
Biel’s argument that she performed her duties in a
secular manner invites the very analysis the ministerial
exception demands we avoid. The courts may not evaluate
the relative importance of a ministerial duty to a religion’s
overall mission or belief system. The very duties that Biel
attempts to trivialize, e.g. teaching Church doctrine and
requiring participation and attentiveness during mass, could
easily be considered essential to the faith and its conveyance
to the next generation, and she very well could have been
terminated for failures in this area.
Consideration of her claims in federal court would
require the evaluation of “the importance and priority of the
religious doctrine in question, with a civil factfinder sitting
in ultimate judgment of what the accused church really
believes, and how important that belief is to the church’s
overall mission.” Hosanna-Tabor, 565 U.S. at 206 (Alito, J.,
concurring). We must avoid entangling the courts in this sort
of analysis. In Alcazar, this Court cited a Seventh Circuit
case that discussed the kind of government interference in
religious affairs that the ministerial exception is designed to
avoid. 627 F.3d at 1292 (citing Tomic v. Catholic Diocese of
Peoria, 442 F.3d 1036, 1040 (7th Cir. 2006), abrogated by
Hosanna-Tabor, 565 U.S. 171)). The Tomic court explained
that if a suit were allowed to go forward between a minister
and a church, the church would defend its adverse
employment decision with a religious reason. The employee
would argue that the religious reason was a farce, and the
real reason was one prohibited by statute. In response the
church would provide evidence of the religious reason,
34 BIEL V. ST. JAMES SCHOOL
which the employee would dispute. The court would then
have to “resolve a theological dispute” in the course of its
adjudication of the claim. Tomic, 442 F.3d at 1040 (citing
DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171 (2d Cir.
1993)). The Religion Clauses do not permit such
entanglement in the affairs of religious organizations.
The Seventh Circuit rejected a similar argument in
Grussgott when the Hebrew teacher attempted to portray her
role as teaching from a “culturally” Jewish perspective rather
than a religious perspective. For example, the teacher
attempted to distinguish between “leading prayer, as
opposed to ‘teaching’ and ‘practicing’ prayer with her
students.” 882 F.3d at 660. Her argument did not prevail
because a teacher’s “opinion does not dictate what activities
the school may genuinely consider to be religious.” Id.
Similarly here, how Biel subjectively approached her duties
is not relevant, let alone determinative.
C. Consideration of all the circumstances
Because the Supreme Court refused “to adopt a rigid
formula,” this Court should not treat the four Hosanna-
Tabor factors as a strict test. Hosanna-Tabor, 565 U.S. at
190. Instead, the Court should take a step back and consider
whether “all the circumstances of [Biel’s] employment”
require that her claims be barred by the ministerial
exception. Id.
In reconciling the four factors with the totality of the
circumstances approach, the Seventh Circuit reasoned that
where two factors weighed in favor of the exception and two
weighed against, “it would be overly formalistic” to simply
BIEL V. ST. JAMES SCHOOL 35
“call [the] case a draw.” Grussgott, 882 F.3d at 661. 4 I agree.
See also Conlon, 777 F.3d at 835 (applying ministerial
exception when two factors were present); Cannata v.
Catholic Diocese of Austin, 700 F.3d 169, 177 (5th Cir.
2012) (“Application of the exception . . . does not depend on
a finding that [the employee] satisfies” the four factors.). The
Seventh Circuit in Grussgott ultimately applied the
ministerial exception because “[t]he school intended [the
teacher] to take on a religious role, and in fact her job
entailed many functions that simply would not be part of a
secular teacher’s job.” 882 F.3d at 661. The court held that
“it [was] fair to say that, under the totality of the
circumstances in this particular case, the importance of [the
teacher’s] role as a ‘teacher of faith’ to the next generation
outweighed other considerations.” Id. (alteration omitted)
(quoting Hosanna-Tabor, 565 U.S. at 199 (Alito, J.,
concurring)). So too here.
In considering the complete picture of Biel’s
employment, I am struck by the importance of her
stewardship of the Catholic faith to the children in her class.
Biel’s Grade 5 Teacher title may not have explicitly
announced her role in ministry, but the substance reflected
in her title demonstrates that she was a Catholic school
educator with a distinctly religious purpose. The religious
purpose of Catholic school educators is not new to the
federal courts. The Supreme Court has long “recognized the
critical and unique role of the teacher in fulfilling the mission
of a church-operated school.” Catholic Bishop, 440 U.S. at
501 (discussing Lemon v. Kurtzman, 403 U.S. 602, 617
(1971)). Biel expressly acknowledged this purpose in her
4
The Seventh Circuit described the Hebrew teacher’s title and
whether she held herself out as a minister as “formalistic factors . . .
greatly outweighed by [her] duties and functions.”
36 BIEL V. ST. JAMES SCHOOL
contract, and committed herself to performing all “duties and
responsibilities . . . within [the] overriding commitment” of
St. James to “develop and promote a Catholic School Faith
Community within the philosophy of Catholic education.”
Biel acknowledged that her continued employment was
dependent upon her demonstrated ability to do so. Drawing
all inferences in Biel’s favor, it is still impossible to ignore
that her position at St. James was pervaded by religious
purpose.
Looking at each of the Hosanna-Tabor factors, and
considering the evidence in its totality without adherence to
a formulaic calculation, it appears that Biel was a minister,
though perhaps not as obviously as the teacher in Hosanna-
Tabor. However, the teacher in Hosanna-Tabor was within
the Protestant Christian framework, and therefore the
terminology of her employment very neatly fit within the
ministerial exception. We must not make the mistake of
tethering the exception too close to the Protestant Christian
concept of ministers. See Hosanna-Tabor, 565 U.S. at 198
(Alito, J., concurring).
The ministerial exception protects the relationship
between a church and its ministers. It does not require a
church to assert a religious reason for an employment
decision. I fear that the majority’s opinion will undermine
this protection. The majority holds that “had St. James
asserted a religious justification for terminating Biel, our
holding would neither have commanded nor permitted the
district court to assess the religious validity of that
explanation, but rather only whether the proffered
justification was the actual motivation for termination.” Maj.
Op. at 2 n.6. But the majority misses the point of the
ministerial exception, which is to shield the relationship
between a church and its ministers from the eyes of the court
BIEL V. ST. JAMES SCHOOL 37
without requiring the church to provide a religious
justification for an adverse employment decision. Hosanna-
Tabor, 565 U.S. at 194–95 (“The purpose of the exception is
not to safeguard a church’s decision to fire a minister only
when it is made for a religious reason. The exception instead
ensures that the authority to select and control who will
minister to the faithful . . . is the church’s alone.”).
***
This case demonstrates that the First Amendment’s
guarantees are not without cost. The ADA protects some of
the most vulnerable people in our society from
discrimination. It is an incredibly important statutory
protection. But “[t]he First Amendment, of course, is a
limitation on the power of Congress,” and any exercise of
statutory rights under the ADA requires the courts “to decide
whether that [is] constitutionally permissible under the
Religion Clauses of the First Amendment.” Catholic Bishop,
440 U.S. at 499. We are necessarily bound by the Supreme
Court’s adoption of the ministerial exception, and its
guarantee of noninterference in religious self-governance. If
the exception is to provide sufficient protection for religious
freedom, courts must give the exception a broad application.
Puri, 844 F.3d at 1159.
In light of these considerations, Hosanna-Tabor, and all
the circumstances of this case, I would conclude that the
ministerial exception does apply to Biel in her capacity as
the fifth grade teacher at St. James because of the substance
reflected in her title and the important religious functions she
performed. These factors outweigh her formal title and
whether she held herself out as a minister. Ultimately, Biel
was “entrusted with teaching and conveying the tenets of the
faith to the next generation.” Hosanna-Tabor, 565 U.S. at
200 (Alito, J., concurring). Those responsibilities render her
38 BIEL V. ST. JAMES SCHOOL
the “type of employee that a church must be free to appoint
or dismiss in order to exercise the religious liberty that the
First Amendment guarantees.” Id. at 206.
III
For the above reasons, I respectfully dissent. I would
affirm the ruling of the District Court.