¶ 98. {dissenting). There is no majority opinion of this court. Of the five justices who would affirm the circuit court, three (Justice Roggensack, Justice Ziegler, and Justice Gableman) would decide this case on the constitution1 and two (Justice Crooks and Justice Prosser) would decide it on the specific contract at issue in this case. Accordingly, because no opinion has garnered the vote of four justices, nothing set forth in any of the opinions has precedential value.
¶ 99. When I examine the issue certified by the court of appeals, I conclude that DeBruin's common law contract claims do not implicate free exercise concerns and therefore do not require dismissal for failure to state a claim. Further, it would be premature to determine whether the claims would foster an excessive state *133entanglement with religion. Because I would remand this case to the circuit court for further proceedings, I respectfully dissent.
I
¶ 100. The court of appeals certified the case to this court, asking the following question: "In light of the Wisconsin Supreme Court's decision in Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, are religious organizations immune from common law breach of contract lawsuits brought by ministerial employees?" Coulee and other relevant cases address state involvement in a church's decision to hire or fire its ministers. These cases do not address state involvement with other aspects of the employment relationship. Accordingly, I conclude that a narrower question should be addressed: whether, based on the reasoning of Coulee and similar cases, a religious organization is immune from common law contract claims challenging its basis for terminating a ministerial employee.
¶ 101. St. Patrick contends that DeBruin failed to state a claim for relief because her contract claims are precluded by the state and federal constitutions. The First Amendment of the United States Constitution provides, in relevant part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. ..." These two clauses provide distinct protections.
¶ 102. The first clause, "Congress shall make no law respecting an establishment of religion," is referred to as the Establishment Clause. It affords protection against "sponsorship, financial support, and active involvement of the sovereign in religious activity." Lemon *134v. Kurtzman, 403 U.S. 602, 612 (1971); see also State ex rel. Wisconsin Health Facilities Auth. v. Lindner, 91 Wis. 2d 145, 280 N.W.2d 773 (1979). An "excessive entanglement" in violation of the Establishment Clause can arise when the state is required to interpret and evaluate church doctrine. See, e.g., Wisconsin Conference Bd. of Trustees of United Methodist Church, Inc. v. Culver, 2000 WI App 132, ¶ 15, 237 Wis. 2d 343, 614 N.W.2d 523.
¶ 103. The second clause, which declares that "Congress shall make no law.. . prohibiting the free exercise thereof," is referred to as the Free Exercise Clause. It protects the power of religious organizations "to decide for themselves, free from state interference, matters of church governance as well as those of faith and doctrine." Coulee, 320 Wis. 2d 275, ¶ 37.
¶ 104. Additionally, Article I, Section 18 of the Wisconsin Constitution provides, in relevant part, "The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; . . . nor shall any control of, or interference with, the rights of conscience be permitted . . . ." This court has explained that this provision, referred to as the Freedom of Conscience Clause, "serve[s] the same dual purpose of prohibiting the 'establishment' of religion and protecting the 'free exercise' of religion." State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 332, 198 N.W.2d 650 (1972). Nevertheless, it contains more explicit language than the First Amendment of the United States Constitution, providing expansive protections for religious liberty. Coulee, 320 Wis. 2d 275, ¶ 60.
¶ 105. The parties' arguments focus on the Free Exercise Clause and the Freedom of Conscience Clause. Accordingly, I address the constitutional right to free exercise first. Then, I turn to briefly comment upon the *135Establishment Clause concerns that could potentially be implicated by DeBruin's contract claims.
A
¶ 106. St. Patrick asserts that state court adjudication of DeBruin's contract claims would violate its right to free exercise. Based on this court's reasoning in Coulee and the United States Supreme Court's reasoning in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. _, 132 S. Ct. 694 (2012), St. Patrick contends that DeBruin cannot challenge her termination because "[i]t is now crystal clear that the legal analysis of the hiring/firing decisions of religious organizations begins and ends with the question of whether. . . [the] employee was a ministerial employee."
¶ 107. The cases upon which St. Patrick relies do not involve court enforcement of a contractual promise that was voluntarily made by a church. Rather, they involve challenges to claims filed under state and federal anti-discrimination statutes.
¶ 108. In these cases, courts have been called upon to address employment discrimination claims made against religious organizations, and they have drawn a line between ministerial and non-ministerial employees. The court-created "ministerial exception" is an affirmative defense available to religious organizations that precludes discrimination claims filed by their ministerial employees.
¶ 109. In Coulee, 320 Wis. 2d 275, ¶ 23, a ministerial employee of a religious school alleged that she was terminated on the basis of age, in violation of the Wisconsin Fair Employment Act. This court characterized the employee's suit as "an effort by the state to *136intrude into the hiring and firing decisions of a religious organization," and it concluded that such an effort violated both the Free Exercise Clause and the Freedom of Conscience Clause. Id., ¶ 62. Regarding the Freedom of Conscience Clause, it explained: "The state simply has no authority to control or interfere with the selection of spiritual leaders of a religious organization with a religious mission." Id., ¶ 88.
¶ 110. The Coulee decision relies heavily on an earlier case from the Fourth Circuit Court of Appeals. In Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985), an employee argued that she had been passed over to fill a ministerial position on the basis of race and sex, and that the church's discriminatory hiring decision violated Title VII of the Civil Rights Act of 1964. The Fourth Circuit concluded that the "introduction of government standards to the selection of spiritual leaders would significantly, and perniciously, rearrange the relationship between church and state," and that "[a]ny attempt by government to restrict a church's free choice of its leaders . . . constitutes a burden on the church's free exercise rights." Id. at 1169, 1168.
¶ 111. Finally, in Hosanna-Tabor, 132 S. Ct. 694, a ministerial employee of a religious school alleged that she had been terminated because of a disability in violation of the Americans with Disabilities Act. The question before the United States Supreme Court was "whether [the] freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment." Id. at 705. The Court recognized the ministerial exception and explained that " [requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. *137Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs." Id. at 706.2
¶ 112. Not one of these cases involved a contract claim brought by a ministerial employee. To the contrary, all three cases either imply or state outright that their reasoning, which is applicable to claims made under anti-discrimination statutes, does not necessarily extend to claims for breach of contract.
¶ 113. In Coulee, this court acknowledged that "a church's [constitutional] authority to make hiring and firing decisions . . . remove[s] the church's decisions in these matters from the jurisdiction of the courts with respect to anti-discrimination laws[.]"3 320 Wis. 2d 275, ¶ 40 (emphasis added). Nevertheless, it cautioned, "We do not mean to suggest that anything interfering with a religious organization is totally prohibited. General laws related to building licensing, taxes, social security, and the like are normally acceptable." Id., ¶ 65.
*138¶ 114. In Rayburn, upon which the Coulee court relied, the Fourth Circuit was more specific with regard to the question we now address. It expressly stated that its analysis would not extend to breach of contract claims: "Of course churches are not — and should not be — above the law. Like any other person or organization, they may be held liable for their torts and upon their valid contracts." 772 F.2d at 1171 (emphasis added).
¶ 115. Most recently, in Hosanna-Tabor, the Supreme Court clearly stated that it "express [ed] no view" on whether its analysis would apply to a breach of contract claim brought against a church by a ministerial employee:
The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.
132 S. Ct. at 710.
¶ 116. I take these courts at their word. DeBruin's contract claims are not precluded by a straightforward application of Coulee, Rayburn, or Hosanna-Tabor.
¶ 117. Nevertheless, St. Patrick asks the court to break new ground and extend the holdings of these cases to DeBruin's contract claims. It argues that "the underpinnings and rationale for why the discrimination laws" cannot restrict a church's decision to terminate a ministerial employee "apply with equal force" to a contract claim. The implication of this argument is *139that, for the same reason the legislature cannot regulate a church's decision to terminate a minister, courts must likewise refrain from adjudicating claims alleging that the church breached terms of an employment contract by terminating a ministerial employee.
¶ 118. I disagree with St. Patrick that the underpinnings and rationale of Coulee, Rayburn, and Hosanna-Tabor apply with equal force to DeBruin's contract claims. The concern underlying these cases is that the enforcement of anti-discrimination laws would "intrud[e] into the mission of religious organizations"4 by introducing "government standards to the selection of spiritual leaders,"5 "restricting] a church's free choice of its leaders,"6 and "depriving the church of control over the selection of those who will personify its beliefs."7 There are crucial differences between the enforcement of an anti-discrimination statute and the enforcement of a contract, and these differences undermine St. Patrick's concerns about state intrusion into its free choice of ministerial employees.
¶ 119. Here, DeBruin's claims do not raise concerns about state "regulation of] the hiring and firing" of ministerial employees, Coulee, 320 Wis. 2d 275, ¶ 84, because the relevant law (contract law) is not a regulatory mandate from the state. The state played no role in St. Patrick's selection of a minister. It did not require St. Patrick to enter into a written employment contract, and it did not mandate any specific contract terms.
*140¶ 120. Instead, St. Patrick voluntarily selected its minister, freely negotiated the terms of employment including the circumstances under which the minister could be fired, and willingly agreed that both parties would be bound by those terms. Allowing DeBruin's contract claims to survive a motion to dismiss would merely recognize that St. Patrick, "like any other person or organization," is bound by its contracts. Rayburn, 772 F.2d at 1171. Given that this case does not involve the state attempting to restrict the church's choice of its leaders, I conclude that this case does not implicate the Free Exercise Clause of the United States Constitution.
¶ 121. My conclusion is supported by decisions from other jurisdictions. In Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (D.C. Cir. 1990), the court determined that permitting a pastor's Age Discrimination in Employment Act claim to proceed would violate the Free Exercise Clause. Nevertheless, the court found "compelling" the assertion that the Free Exercise Clause could not bar an action for a breach of an employment contract, id. at 1359, and it held that dismissal of the breach of contract claim was premature, id. at 1361. It explained: "A church is always free to burden its activities voluntarily through contracts," and further that "[a] church, like any other employer, is bound to perform its promissory obligations in accord with contract law." Id. at 1359,1361. Accordingly, the pastor was "entitled to rely upon his employer's representations and to enforce them in a secular court." Id. at 1361.
¶ 122. Similarly, in Petruska v. Gannon University, the court determined that even though a minister's Title VII discrimination claim must be dismissed, the "[ejnforcement of a promise, willingly made and supported by consideration, in no way constitutes a state-*141imposed limit upon a church's free exercise rights." 462 F.3d 294, 310 (3d Cir. 2006). The Third Circuit Court of Appeals explained: "On its face, application of state contract law does not involve government-imposed limits on [the church's] right to select its ministers: Unlike the duties under Title VII and state tort law, contractual obligations are entirely voluntary." Id.
¶ 123. For the same reason, I conclude that permitting DeBruin to maintain contract claims does not control or interfere with St. Patrick's right of conscience in violation of the Wisconsin Constitution. I acknowledge that the Wisconsin Constitution provides broader free exercise protection than the First Amendment. Nevertheless, as explained above, court adjudication of the claims does not "control or interfere with" a church's selection of its ministers. See, Coulee, 320 Wis. 2d 275, ¶ 63.
¶ 124. Instead, if courts routinely dismissed this variety of contract claim, they might create an unnecessary roadblock hampering a church's free exercise ability to select its ministers. There is no dispute that a church, like any other organization, enjoys the freedom to contract. Contract law "promote[s] and facilitate^] the reliance on agreements" through court enforcement of "reasonable expectations that have been induced by the making of a promise." Joseph M. Perillo, Corbin on Contracts § 1.1 at 2 (rev. ed. 1993).8 The underpinning *142of contract law is that competent parties are permitted to bind themselves to voluntary agreements, and such agreements will be enforced by courts (provided that they are not illegal or contrary to public policy). See, e.g., Jezeski v. Jezeski, 2009 WI App 8, ¶ 11, 316 Wis. 2d 178, 763 N.W.2d 176.
¶ 125. If the ministerial exception discussed in Coulee, Rayburn, and Hosanna-Tabor were extended to bar contract claims, then termination clauses would not be worth the paper they were printed on because no civil authority could hold a religious organization to the terms of any such contract it had negotiated with a ministerial employee. Candidates for ministerial positions might be less inclined to enter into these types of employment arrangements in the first instance. A church's ability to recruit the best and brightest candidates for ministerial positions could be undermined because the church would be unable to offer desirable candidates any contractual assurances regarding job security.9
*143¶ 126. I conclude that DeBruin's contract claims should not be dismissed for failure to state a claim. Rather, they should be remanded to the circuit court for further proceedings.
B
¶ 127. I have determined that DeBruin's contract claims do not raise free exercise concerns. Nevertheless, I pause to observe that another constitutional concern, excessive entanglement in violation of the Establishment Clause, could potentially arise if the court proceeded to evaluate St. Patrick's reasons for terminating DeBruin. See Lemon v. Kurtzman, 403 U.S. 602 (1971); State ex rel. Wisconsin Health Facilities Auth. v. Lindner, 91 Wis. 2d 145, 280 N.W.2d 773 (1979).
¶ 128. In Establishment Clause cases, the question is whether the court is interfering with "inherently religious matters." Carl H. Esbeck, Religion and the First Amendment: Some Causes of the Recent Confusion, 42 Wm. & Mary L. Rev. 883, 915 (2001). "[Government does not exceed the restraints of the Establishment Clause unless it is acting on, or intruding into, such matters or topics." Id.
¶ 129. As stated above, in both Minker and Petruska, the court refused to dismiss a minister's contract claim under the Free Exercise Clause for failure to state a claim. Nevertheless, both courts cautioned that adjudicating the cases might require court evaluation of the validity of religious doctrine, and both courts speculated that concerns of "excessive entanglement" with religion might ultimately require dismissal of the case on summary judgment.
*144¶ 130. In Minker, 894 F.2d at 1360, the court explained the potential for entanglement as follows: "It could turn out that in attempting to prove his case, [Minker] will be forced to inquire into matters of ecclesiastical policy even as to his contract claim. Of course, in that situation, a court may grant summary judgment on the ground that [Minker] has not proved his case and pursuing the matter further would create an excessive entanglement with religion."
¶ 131. Similarly, in Petruska, 462 F.3d at 312, the court reasoned that maintaining the claim could, but would not necessarily, foster entanglement: "Resolution of this claim does not turn on an ecclesiastical inquiry —or, at least not at the outset. If [the Church's] response to Petruska's allegations raise issues which would result in excessive entanglement, the claims may be dismissed on that basis on summary judgment."
¶ 132. As the above cases forewarn, it is possible that facts would come to light which would require the circuit court to "wade[] into doctrinal waters" and make determinations about "matters of ecclesiastical policy." See Petruska, 462 F.3d at 312; Minker, 894 F.2d at 1360.10 If so, the circuit court could be presented with an argument that summary judgment should be granted because pursuing the matter further would create an excessive entanglement with religion.
¶ 133. At this point, however, the case is before this court on a motion to dismiss for failure to state a *145claim, and there is nothing in the record about why DeBruin was terminated or whether that decision involved any matters of faith and ministry. Any concerns about excessive entanglement would be "speculative," and dismissing DeBruin's claim on this basis would be "premature." See Minker, 894 F.2d at 1360. The circuit court would be well situated to address any entanglement concerns if the parties were given the opportunity to develop the factual record on remand.
II
¶ 134. Justice Roggensack offers a different interpretation of the constitutional provisions at issue here. Unfortunately, this interpretation paints with too broad a brush, is too absolute, and reaches far beyond contracts governing the termination of ministerial employees. The opinion is flawed in three key respects.
¶ 135. First, it conflates the principles underlying the Free Exercise Clause and the principles underlying the Establishment Clause. It makes no distinction between the two. Instead, it borrows freely from free exercise principles and establishment principles alike.
¶ 136. For example, Justice Roggensack's sweeping statement about the meaning of the First Amendment is based on her assessment of Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. 696 (1976). The opinion summarizes that case as follows: "[C]hurch decisions in matters of faith and ministry are so fundamental to the free exercise of religious liberty that civil courts are prohibited from delving into the reasons for religion-based decisions." Justice Roggensack's opinion, ¶ 20. The opinion fails to acknowledge that the Court's analysis in Serbian Eastern Orthodox Diocese provides *146a classic example of the concern, rooted in Establishment Clause jurisprudence, about the entanglements that arise when a civil court is called upon to interpret church doctrine to resolve a case.11
*147¶ 137. In Serbian Eastern Orthodox Diocese, Milivojevich, a defrocked bishop, brought a lawsuit in civil court against his former employer, the Mother Church. He alleged that his defrocking had to be set aside as "arbitrary" because the proceedings against him had not been conducted in accordance with the Church's constitution and penal code.12 The Supreme Court of Illinois rendered its own interpretation of the Church's constitution and penal code, and it concluded that Milivojevich's defrocking was invalid because the Mother Church has not followed its own laws and procedures. 426 U.S. at 712-13.
¶ 138. The United States Supreme Court explained that "the First and Fourteenth Amendments *148permit hierarchical religious organizations to establish their own rules and regulations for internal discipline and government," id. at 724, and that civil courts are bound to accept the Church's decisions "on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law," id. at 713. "To permit civil courts to probe deeply enough into the allocation of power within a hierarchical church so as to decide religious law," the Court held, "would violate the First Amendment in much the same manner as civil determination of religious doctrine." Id. at 709. The Court reversed out of concern that "the State will become entangled in essentially religious controversies." Id. at 709.
¶ 139. By resting her opinion in part on entanglement principles borrowed from Serbian Eastern Orthodox Diocese,13 Justice Roggensack decides an issue not before the court — the application of the Establishment Clause in this case. St. Patrick's motion to dismiss was not based upon the Establishment Clause or any concern about excessive entanglement. Instead, it was based on the Free Exercise Clause and the Freedom of Conscience Clause of the Wisconsin Constitution.
¶ 140. Likewise, the circuit court's decision, the court of appeals' certification, and St. Patrick's argument do not present an Establishment Clause issue. When it dismissed DeBruin's claim, the circuit court ruled that it was precluded by Coulee (a Free Exercise Clause and Freedom of Conscience Clause case) from addressing DeBruin's contract claims. The court of appeals certified the case to this court, asking the *149following constitutional question: "In light of the Wisconsin Supreme Court's decision in Coulee . . . , are religious organizations immune from common law breach of contract lawsuits brought by ministerial employees?"
¶ 141. During St. Patrick's briefing in this court, it stridently asserted that the Establishment Clause principle of excessive entanglement had nothing to do with the controversy, and that it did not matter whether its reason for terminating DeBruin was religious or secular. It explained:
Ms. DeBruin attempts to avoid the Coulee decision by basing her argument on an analysis of federal court cases that mainly interpret the application of the 'Establishment Clause' of the First Amendment of the U.S. Constitution and its 'excessive entanglement' test....
Ms. DeBruin's analysis of the reason for her firing is not relevant to St. Patrick's Motion to Dismiss. As explained above, the Court in Coulee held that the "Freedom of Conscience Clauses" or the "Free Exercise Clause" should apply to the hiring and firing decisions of a religious organization. This analysis is based on the two prong test [set forth in Coulee].... Ms. DeBruin's entire 'excessive entanglement' analysis is not on point to this case.
¶ 142. Justice Roggensack's opinion should not conflate free exercise and establishment principles, particularly when St. Patrick has rejected the Establishment Clause as a basis for its claim and has declined to brief the issue. In so doing, the opinion confuses the interests that are protected by these two clauses, as well as the analyses that are conducted under these two clauses.
¶ 143. The second flaw in Justice Roggensack's opinion is that it unreasonably presumes that all deci*150sions to terminate a ministerial employee will implicate "religious controversies" regarding "matters of faith and ministry." Justice Roggensack's opinion, ¶ 20. It asserts, without reservation: "[I]nquiry into the validity of a religious institution's reasons for the firing of a ministerial employee will involve consideration of ecclesiastical decision-making." Id., ¶ 29 (emphasis added).
¶ 144. Yet, many decisions to terminate a ministerial employee are likely to be much more mundane. In this very case, there is not at this point any allegation that DeBruin was terminated for an ecclesiastical or religious reason.
¶ 145. In making its unsubstantiated assumption that all contract claims by ministers challenging their termination will involve entanglement in "matters of faith and ministry," Justice Roggensack's opinion overlooks Minker and Petruska, two cases that are directly on point. Both cases thoroughly discuss the differences between statutory discrimination claims and contract claims and provide a reasoned explanation for why a contract claim would not violate the Free Exercise Clause but might ultimately implicate Establishment Clause concerns.14 Minker, 894 F.2d at 1359-61; Petruska, 462 F.3d at 310-11. Both cases explain that speculating on a motion to dismiss whether entanglements will arise is premature. Minker, 894 F.2d at 1360; Petruska, 462 F.3d at 311-12. Both cases state that a determination about entanglement will depend upon the facts and allegations of the specific case, and that *151the case can be dismissed on summary judgment if and when entanglements arise.15
¶ 146. Third, Justice Roggensack's opinion makes sweeping pronouncements that could extend far beyond the confines of this case. These pronouncements are too absolute because they would preclude the enforcement of a mutually agreed upon contract. Further, if adopted by a majority of the court, they could have implications for a church's ability to contract in other settings.
¶ 147. The opinion proclaims that "church decisions in matters of faith and ministry are so fundamental to the free exercise of religious liberty that civil courts are prohibited from delving into the reasons for religion-based decisions." Justice Roggensack's opinion, ¶ 20. "Included within the decisions protected by the First Amendment," the opinion contends, "are the hiring and firing of ministerial employees." Id., ¶ 22.
¶ 148. I read Justice Roggensack's bottom line as follows. Even if a church voluntarily enters into a contract limiting the church's options to terminate a ministerial employee, that contract is unenforceable because it involves a "church decision in matters of faith and ministry." See id., ¶¶ 20, 27-28. In other words, a church's ability to arbitrarily fire ministers is so sacrosanct that the church cannot contract around it.
¶ 149. If this rationale were correct, what other kinds of contracts involve "matters of faith and ministry" and would therefore be unenforceable in civil *152courts? Justice Roggensack acknowledges that there are "matters for which a religious institution may contract that would be appropriate to enforce in the courts," but only those that do not involve "internal church decision[s] that affectD the faith and mission of the church itself." Id., ¶ 26 n.8. The rule of law offered by Justice Roggensack appears to be incredibly broad.
¶ 150. Such a broad rule of law would unquestionably harm those who enter into contracts with the church. I conclude that it would likewise harm the church itself. As discussed above, it is the certainty that a contract can be enforced in court that gives it value, and the freedom to contract rests on the assumption that valid contracts will be enforced. Once that assumption is undermined, a contract is worth no more than the paper upon which it is printed.
Ill
¶ 151. Finally, I turn to address the opinions offered by Justice Crooks and Justice Prosser. They would decide this case based on an interpretation of the contract. As a result, their opinions avoid making determinations about the constitutional issues raised in this appeal. I appreciate the reluctance to unnecessarily decide issues of constitutional importance. However, constitutional avoidance is not a good fit here, given that the basis of the motion before the circuit court, the circuit court's decision,16 the certification of the court of *153appeals, and the arguments advanced by the parties all involve constitutional issues.
¶ 152. Nevertheless, both Justice Crooks and Justice Prosser avoid the issue before the court and adopt an interpretation of the contract. Justice Crooks contends that the termination clause is illusory and therefore the entire contract is unenforceable.17 Justice Prosser contends that although the employment contract is enforceable as a whole, the termination clause is illusory because it promises nothing.
¶ 153. I am not persuaded by their interpretations of the termination clause. An important canon of construction is that courts should avoid interpretations of a contract term that render the promise unenforceable because it is illusory. Instead, courts bend over backwards to give contract terms meaning. See Variance, Inc. v. Losinske, 71 Wis. 2d 31, 36-37, 237 N.W.2d 22 (1976) ("This court must assume that the parties attempted to enter into a legal and enforceable contract, and an interpretation favoring legality and enforceability should be adopted.").18
*154¶ 154. I conclude that there is an alternative interpretation of the termination clause that would give it meaning. The contract does not provide that DeBruin can be terminated for "any cause, as determined by the Parish." Instead, it provides that she "shall not be discharged ... without good and sufficient cause, which shall be determined by the PARISH."
¶ 155. In the context of a decision to terminate an employee, the phrase "good and sufficient" cause is defined in Wisconsin's common law to mean an employee's failure to perform duties under the contract. See Millar v. Joint School Dist. No. 2, 2 Wis. 2d 303, 312, 86 N.W.2d 355 (1957) (holding that a school board could dismiss a teacher "before the expiration of his term of service for good and sufficient cause. If a teacher fails to perform his duties under his contract, the board may discharge him from further service."); see also Kernz v. J.L. French Corp., 2003 WI App 140, ¶ 12, 266 Wis. 2d 124, 667 N.W.2d 751 (asserting that Millar provided a common law definition of "good and sufficient cause.").
*155¶ 156. It should be unsurprising that the contract gives the termination decision to St. Patrick. After all, it always falls to the employer, rather than the employee, to decide whether an employee will be terminated. The fact that the termination clause gives St. Patrick the right to decide whether there is "good and sufficient cause" does not necessarily render that clause illusory.
¶ 157. Instead, it can be interpreted as an agreement that St. Patrick will evaluate the facts to determine whether the common law definition of "good and sufficient cause" has been met when making a termination decision. That is, under this alternative interpretation, St. Patrick must determine whether DeBruin "fail[ed] to perform [her] duties under the contract," and it will not terminate her unless the answer is yes.19
¶ 158. Both Justice Crooks and Justice Prosser fail to address the common law definition of the contract phrase "good and sufficient cause." This common law definition presents a reasonable alternative interpretation that should be considered, particularly in light of the principle that courts should "assume that the parties attempted to enter into a legal and enforceable contract" and adopt "an interpretation favoring legality and enforceability." See Variance, 71 Wis. 2d at 36-37.
¶ 159. In sum, I would deny the motion to dismiss for failure to state a claim. At this stage, it is premature to determine whether the claims foster excessive entanglement with religion. Unlike the several opinions above, I would remand for further proceedings. Accordingly, I respectfully dissent.
*156¶ 160. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.
Hereinafter, Justice Roggensack's opinion.
See also Combs v. Central Tex. Annual Conf. of United Methodist Church, 173 F.3d 343, 350 (5th Cir. 1999) (holding that the free exercise clause prohibited application of Title VII to a church's decision to terminate a minister) ("[I]n investigating employment discrimination claims by ministers against their church, secular authorities would necessarily intrude into church governance in a manner that would be inherently coercive, even if the alleged discrimination were purely nondoctrinal.") (emphasis added).
The United States Supreme Court later clarified that the ministerial exception operates not as a jurisdictional bar, but rather, as an affirmative defense to an otherwise cognizable claim. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694, 709 n.4 (2012).
Coulee Catholic Schools v. LIRC, 2009 WI 88, ¶ 55, 320 Wis. 2d 275, 768 N.W.2d 868.
Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985).
Id. at 1168.
Hosanna-Tabor, 132 S. Ct. at 706.
An 1875 statement by Sir George Jessel, which has been described as "perhaps the most famous judicial statement about freedom of contract," identifies contract enforcement as a key component of the freedom of contract: "[M]en of full age and competent understanding shall have the utmost liberty of contracting, and [] their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by Courts of justice." Todd D. Rakoff, Is Freedom, From, Contract Neces*142sarily a Libertarian Freedom?, 2004 Wis. L. Rev. 477, 479-80 (quoting Printing & Numerical Registering Co. v. Sampson, 19 L.R.-Eq. 462, 465 (VC. 1875)); see also Harry N. Scheiber, The State and Freedom of Contract 1 (1998) (defining the "institution of contract" as "the legal form in which agreements and promises are made, with the purpose of making them enforceable by the courts").
At oral argument, St. Patrick acknowledged that its position was "absolute" and that, "if push comes to shove,.. . the First Amendment, it trumps the right to contract.. .." It could not identify any contractual assurances that a church could offer a prospective ministerial employee regarding job security. Instead, it could only offer the following advice: "I would make sure that [a prospective ministerial employee] is very comfortable with the people that she wants to work for. That would the *143first thing. You would have to meet the people and be very comfortable with your employer."
See also Black v. St. Bernadette Congregation of Appleton, 121 Wis. 2d 560, 564, 360 N.W.2d 550 (Ct. App. 1984) (Wisconsin courts may not "review the merits of a termination [of a minister] based on ecclesiastical reasons" but "[t]he determination of whether an ecclesiastical question exists must be made by the court.") (citing Olston v. Hallock, 55 Wis. 2d 687, 698, 201 N.W.2d 35 (1972); Wisconsin v. Yoder, 406 U.S. 205 (1972)).
A plethora of scholars of the First Amendment and church-state relations identify Serbian Eastern Orthodox Diocese as a classic Establishment Clause case, even though the opinion's First Amendment analysis did not specifically identify the separate clauses. An examination of the opinion reveals that the Court's analysis was based on the Establishment Clause principle of entanglement. See, e.g., Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 Iowa L. Rev. 1, 58 (1998) ("In cases such as Kedroff and [Serbian Eastern Orthodox Diocese], the Establishment Clause kept the prerogatives vested in religion from being undermined by the government's interference with a church's affairs."); Steven K. Green, Religious Discrimination, Public Funding, and Constitutional Values, 30 Hastings Const. L.Q. 1, 17,17 n.79 (Fall 2002) (citing Serbian Eastern Orthodox Diocese as an example of the "concern" that "the State will become entangled in essentially religious controversies"); Constance Frisby Fain, Minimizing Liability for Church-Related Counseling Services: Clergy Malpractice and First Amendment Religion Clauses, 44 Akron L. Rev. 221, 244 n.161 (2011) (citing Serbian Eastern Orthodox Diocese near the top of a list "of cases that have addressed or applied the 'excessive entanglement' test [from Lemon] or the Establishment Clause in general"); Carl H. Esbeck, Religion and the First Amendment: Some Causes of the Recent Confusion, 42 Wm. & Mary L. Rev 883, 916 n.106 (2001) (citing Serbian Eastern Orthodox Diocese for the proposition that "courts are without competence to adjudicate essentially doctrinal disputes for, inter alia, avoidance of entanglement"); Carl H. Esbeck, Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause, 13 Notre Dame J. L. Ethics & Pub. Pol'y 285, 305-06 & n.61 (1999) (citing Serbian Eastern Orthodox Diocese at the top of the list of cases demonstrating that "the Court has deemed the entanglement excessive when the regulation intrudes on inherently religious matters"); *147Steven K. Green, Of (Un)equal Jurisprudential Pedigree: Rectifying the Imbalance Between Neutrality and Separationism, 43 B.C. L. Rev. 1111, 1122 (2002); David K. DeWolf, State Action Under the Religion Clauses: Neutral in Result or Neutral in Treatment?, 24 U. Rich. L. Rev. 253, 269 (1990).
Contrary to Justice Roggensack's assertion, the Minker case supports my conclusion that Serbian Eastern Orthodox Diocese is based on the Establishment Clause principle of entanglement. The Minker court cites Serbian Eastern Orthodox Diocese for the proposition that "courts may not consider provisions whose enforcement would require 'a searching and therefore impermissible inquiry' into church doctrine." Minker v. Baltimore Area Annual Conference of United Methodist Church, 894 F.2d 1354, 1360 (D.C. Cir. 1990).
The Mother Church was "governed according to the Holy Scriptures, Holy Tradition, Rules of the Ecumenical Councils, the Holy Apostles, the Holy Faiths of the Church, the Mother Church Constitution adopted in 1931, and a 'penal code' adopted in 1961." Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. 696, 699 (1976). The United States Supreme Court observed that "[t]hese sources of law are sometimes ambiguous and seemingly inconsistent." Id.
Additionally, the opinion finds support in the Petruska court's discussion of "ecclesiastical inquiry" without acknowledging that this portion of the Petruska opinion addressed the Establishment Clause and concerns about the potential for entanglement. Justice Roggensack's opinion, ¶ 29.
By contrast, Justice Roggensack's opinion glosses over any distinction between statutory discrimination claims and contract claims with the conclusory assertion that "beginning with a contract analysis would cause a court to diminish the priority given to the policies that drive the First Amendment and would lead a court to err." Justice Roggensack's opinion, ¶ 26.
Justice Roggensack's opinion does not even attempt to distinguish these cases, except to note that they did not analyze the more protective language of the Wisconsin Constitution. Id., ¶ 20 n.6. Yet the bulk of the Justice Roggensack's analysis is based not on the Wisconsin Constitution, but rather, on federal case law interpreting the United States Constitution.
In passing, the circuit court commented that the termination clause might be illusory. Nevertheless, the circuit court did not base its dismissal of DeBruin's claims on an interpretation of the termination clause. It expressly stated that its decision to dismiss was not based on the contract, and that any remarks about the contract would be "just surplusage." Under *153the circuit court's interpretation of Coulee, it could not "make further inquiry" into the meaning of the contract. "I don't think I get that far," the court explained.
In Devine v. Notter, 2008 WI App 87, ¶ 4, 312 Wis. 2d 521, 753 N.W.2d 557, the court of appeals explained that "[a]n illusory promise is a promise in form only: one that its maker can keep without subjecting him- or herself to any detriment or restriction. An archetypal example of an illusory promise is the statement that 'I promise to do as you ask if I please to do so when the time arrives.'"
See also Pacemaker Yacht Co. v. N.L.R.B., 663 F.2d 455, 459 (3d Cir. 1981) (quoting Retail Clerks Local 455 v. NLRB, 510 F.2d 802, 806 n.15 (D.C. Cir. 1975) (referencing the "settled rule of contract interpretation that contract language should *154not be interpreted to render the contract promise illusory or meaningless.")); Walsh v. Schlecht, 429 U.S. 401, 408 (1977) ("Since a general rule of construction presumes the legality and enforceability of contracts, ambiguously worded contracts should not be interpreted to render them illegal and unenforceable where the wording lends itself to a logically acceptable construction that renders them legal and enforceable."); Gibson v. Neighborhood Health Clinics, Inc., 121 F.3d 1126, 1131 (7th Cir. 1997) ("Indiana courts will not find that there was a lack of obligation on the part of one party when 'a reasonable and logical interpretation will render the contract valid and enforceable.' "); Bank of N. Carolina, N.A. v. Rock Island Bank, 570 F.2d 202, 207 (7th Cir. 1978) ("A construction that will sustain an instrument will be preferred to one that will defeat it.")
Because there is no factual development on this issue at this point in the litigation, we cannot know why DeBruin was terminated.