[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
02/17/2000
THOMAS K. KAHN
No. 99-10603 CLERK
________________________
D. C. Docket No. 97-02719-CV-P-W
LEE OTIS GELLINGTON,
Plaintiff-Appellant,
versus
CHRISTIAN METHODIST EPISCOPAL CHURCH, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 17, 2000)
Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges.
BLACK, Circuit Judge:
Appellant Lee Otis Gellington brought this action against his former employer,
Appellee Christian Methodist Episcopal Church, Inc., alleging he was retaliated
against and constructively discharged in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17. The district court granted
summary judgment in favor of Appellee after concluding that the ministerial exception
barred Appellant from bringing suit under Title VII against Appellee. Appellant
appeals, presenting the narrow question of whether the ministerial exception survives
the Supreme Court’s decision in Employment Division, Dep’t of Human Resources of
Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990). We conclude the ministerial
exception to Title VII survives the Supreme Court’s holding in Smith, and accordingly
affirm the order of the district court.
I. BACKGROUND
Appellant is an ordained minister of the Christian Methodist Episcopal (CME)
Church. CME Church is divided into ten Episcopal districts. Beginning in 1995,
Appellant served as a minister in a church located in Mobile, Alabama, which is part
of the Fifth Episcopal district. One of Appellant’s co-workers at the Mobile church
was Veronica Little, who also was employed as a minister. On more than one
occasion, Little confided in Appellant that her immediate supervisor had made sexual
advances toward her, and she asked Appellant for guidance on how to handle this
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situation. Appellant advised and aided Little in preparing an official complaint to the
church elders. Shortly after he aided Little in her complaint, Appellant was reassigned
to a church over 800 miles away from his home at a substantial reduction in salary.
Appellant states that he could not comply with this reassignment and consequently
was forced to resign.
Appellant brought this action, alleging Appellee retaliated against him and
constructively discharged him for aiding Little in her sexual harassment complaint.
Appellee then filed a motion for summary judgment. The district court granted the
motion because it concluded that the ministerial exception to Title VII, created in
McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972), barred Appellant from
bringing his claim against Appellee. Appellant appeals this order.
II. ANALYSIS
We review de novo a grant of summary judgment by the district court, applying
the same standards. See Harris v. H & W Contracting Co., 102 F.3d 516, 518 (11th
Cir. 1996). We view the evidence, and all factual inferences that can reasonably be
drawn from the evidence, in the light most favorable to the nonmoving party. See
Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.
1997).
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There is no question that the district court’s grant of summary judgment would
have been correct prior to 1990. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.
1972), established that Title VII is not applicable to the employment relationship
between a church and its ministers. See id. at 560.1 In McClure, a minister of the
Salvation Army sued the church under Title VII, alleging she was discriminated
against on the basis of sex and discharged because of her complaints regarding this
alleged discrimination. See id. at 555. After noting that the First Amendment has
built a “wall of separation” between church and state, and that there is a long history
of allowing churches to be free from state interference in matters of church
governance, the Fifth Circuit held that it would not apply Title VII to the minister-
church employment relationship. See id. at 558-560. The court reasoned that
applying Title VII to this relationship “would result in an encroachment by the State
into an area of religious freedom which it is forbidden to enter by the principles of the
free exercise clause of the First Amendment.” Id. at 560. The court concluded that
matters such as “the determination of a minister’s salary, his place of assignment, and
the duty he is to perform in furtherance of the religious mission of the church” were
all functions with which the state could not interfere. Id. at 559.
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.
4
Since McClure, many other Circuits also have adopted the ministerial exception
to Title VII. See, e.g., Young v. Northern Illinois Conf. of United Methodist Church,
21 F.3d 184 (7th Cir. 1994) (holding that Free Exercise Clause forbids review of
church’s employment decisions involving clergy); Minker v. Baltimore Annual Conf.
of the United Methodist Church, 894 F.2d 1354 (D.C. Cir. 1990) (concluding that
allowing minister to sue church under ADEA would violate Free Exercise Clause);
Natal v. Christian and Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989) (following
McClure in concluding that clergyman is barred by First Amendment from suing not-
for-profit religious organization for wrongful termination); Rayburn v. General Conf.
of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985) (holding that plaintiff’s
Title VII challenge to denial of pastoral appointment was barred by religion clauses
of First Amendment).
Appellant argues that although McClure was the law of this Circuit prior to
1990, the ministerial exception to Title VII created in McClure cannot exist
subsequent to the Supreme Court’s decision in Employment Division, Dep’t of Human
Resources of Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990).
In Smith, Alfred Smith and Galen Black challenged a determination that their religious
use of peyote, which resulted in their dismissal from employment, was “misconduct”
disqualifying them from receiving Oregon unemployment compensation benefits. See
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id. at 874, 110 S. Ct. at 1597-98. The claimants argued that Oregon violated the Free
Exercise Clause of the First Amendment when it denied them unemployment benefits
solely because of their sacramental use of peyote, a controlled substance under Oregon
law. See id. The Court held the Free Exercise Clause did not bar Oregon from
prohibiting the religious use of peyote, explaining that “the right of free exercise does
not relieve an individual of the obligation to comply with a valid and neutral law of
general applicability on the ground that the law proscribes. . . conduct that his religion
prescribes.” Id. at 879, 110 S. Ct. at 1600 (citations and internal quotation marks
omitted). The Court also rejected the argument that Oregon at least be forced to
satisfy the compelling interest test before applying a neutral law of general
applicability to religion-based conduct. See id. at 885, 110 S. Ct. at 1603.2
Appellant argues that because Smith held that religious beliefs do not excuse
compliance with a generally applicable law, Appellee cannot evade the legal
obligations imposed by Title VII simply because it is a religious organization.
Appellant contends that because Title VII is a neutral law of general applicability, the
2
Congress attempted to reinstate the compelling interest test with respect to laws of general
applicability that would apply to religious practices in the Religious Freedom Restoration Act of
1993 (RFRA), 42 U.S.C. § 2000bb et seq. The Supreme Court, however, held that RFRA was
unconstitutional as applied to the states because it exceeded the scope of Congress’ power under §
5 of the Fourteenth Amendment. See City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 507 (1997).
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First Amendment does not bar the application of Title VII to Appellee even if its
application would burden the free exercise of religion.
Two Circuits have concluded the ministerial exception survives Smith. The
D.C. Circuit first considered this question in EEOC v. Catholic University of America,
83 F.3d 455 (D.C. Cir. 1996). A Catholic nun brought a Title VII sex discrimination
suit against the University after she was denied tenure. See id. at 459. In addressing
the plaintiff’s claim, the court noted that the “Supreme Court has recognized that
government action may burden the free exercise of religion” in two ways: “by
interfering with a believer’s ability to observe the commands or practices of his faith,
and by encroaching on the ability of a church to manage its internal affairs.” Id. at
460 (citations omitted). The court then noted that the ministerial exception was
developed, in part, to protect churches from the second type of government
interference. See id. at 462. The court reasoned, however, that Smith focused
exclusively on the first prong of the free exercise clause, the individual’s ability to
observe the practices of his or her religion. See id. at 462. Concluding that Smith
therefore was not applicable to the ministerial exception, the court stated “the burden
on free exercise that is addressed by the ministerial exception is of a fundamentally
different character from that at issue in Smith and in the cases cited by the Court in
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support of its holding. . . . [T]he ministerial exception does not present the dangers
warned of in Smith.” Id.
The D.C. Circuit also concluded the Supreme Court’s rejection in Smith of the
compelling interest test did not affect the continuing existence of the ministerial
exception. See id. at 462-63. The court noted that although some of the cases
applying the ministerial exception cited the compelling interest test, the exception was
not based on this test, but rather on a “long line of Supreme Court cases that affirm the
fundamental right of churches to ‘decide for themselves, free from state interference,
matters of church government as well as those of faith and doctrine.’” Id. at 462
(quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North
America, 344 U.S. 94, 116, 73 S. Ct. 143, 154 (1952)). Consequently, the D.C.
Circuit held that the rejection of the compelling interest test did not alter this “century-
old affirmation of a church’s sovereignty over its own affairs.” Id. at 463.
The Fifth Circuit has also held that the ministerial exception to Title VII
survives Smith. In Combs v. Central Texas Annual Conf. of the United Methodist
Church, 173 F.3d 343 (5th Cir. 1999), the court considered a Title VII sex
discrimination claim brought by a female clergy member against her church. See id.
at 345. In concluding that the suit was barred by the ministerial exception, the court
agreed with both the reasoning and the conclusion of the D.C. Circuit, noting
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Smith’s language is clearly directed at the first strand of free exercise
law, where an individual contends that, because of his religious beliefs,
he should not be required to conform with generally applicable laws.
The concerns raised in Smith are quite different from the concerns raised
by Reverend Comb’s case, which pertains to interference in internal
church management.
Id. at 349. The court reasoned that the constitutional protection of religious freedom
afforded to churches in employment actions involving clergy exists even when such
actions are not based on issues of church doctrine or ecclesiastical law. See id. at 350.
The court also concluded that this “fundamental right of churches to be free from
government interference in their internal management and administration” had not
been affected by the Smith Court’s refusal to apply the compelling interest test. Id.
We agree with the Fifth and D.C. Circuits and hold that the ministerial
exception created in McClure has not been overruled by the Supreme Court’s decision
in Smith. The Smith decision focused on the first type of government infringement on
the right of free exercise of religion—infringement on an individual’s ability to
observe the practices of his or her religion. The second type of government
infringement—interference with a church’s ability to select and manage its own
clergy—was not at issue in Smith. The Court’s concern in Smith was that if an
individual’s legal obligations were contingent upon religious beliefs, those beliefs
would allow each individual “‘to become a law unto himself.’” Smith, 494 U.S. at 885,
9
110 S. Ct at 1603 (quoting Reynolds v. United States, 98 U.S. 145, 167 (1879)). The
ministerial exception does not subvert this concern; it was not developed to provide
protection to individuals who wish to observe a religious practice that contravenes a
generally applicable law. Rather, the exception only continues a long-standing
tradition that churches are to be free from government interference in matters of
church governance and administration. See, e.g., Kedroff v. St. Nicholas Cathedral,
344 U.S. 94, 107, 73 S. Ct. 143, 150 (1952) (“Legislation that regulates church
administration, the operation of the churches, [or] the appointment clergy. . . prohibits
the free exercise of religion”). Also, because the ministerial exception is based on this
tradition and not on strict scrutiny, the Court’s rejection in Smith of the compelling
interest test does not affect the continuing vitality of the ministerial exception.
We noted in McClure “[t]he relationship between an organized church and its
ministers is its lifeblood. The minister is the chief instrument by which the church
seeks to fulfill its purpose.” 460 F.2d at 558-559. An attempt by the government to
regulate the relationship between a church and its clergy would infringe upon the
church’s right to be the sole governing body of its ecclesiastical rules and religious
doctrine.
Furthermore, applying Title VII to the employment relationship between a
church and its clergy would involve “excessive government entanglement with
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religion” as prohibited by the Establishment Clause of the First Amendment. See
Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S. Ct. 2105, 2111 (1971). Investigation
by a government entity into a church’s employment of its clergy would almost always
entail excessive government entanglement into the internal management of the church.
A church’s view on whether an individual is suited for a particular clergy position
cannot be replaced by the courts’ without entangling the government “in questions of
religious doctrine, polity, and practice.” Jones v. Wolf, 443 U.S. 595, 603, 99 S. Ct.
3020, 3025 (1979). The Establishment Clause thus also mandates that churches retain
exclusive control over strictly ecclesiastical matters.
III. CONCLUSION
For the foregoing reasons, we find that the Free Exercise and Establishment
Clauses of the First Amendment prohibit a church from being sued under Title VII by
its clergy. The district court therefore properly granted Appellee’s motion for
summary judgment.
AFFIRMED.
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