dissenting.
I respectfully dissent. Susan Black’s sexual harassment claim against St. John’s Lutheran Church in civil court was properly dismissed by the trial court because of the United States Constitution’s prohibition against excessive governmental entanglement with religion.
The First Amendment of the United States Constitution provides:
*722Congress shall make no law respecting an establishment of religion * * *.
U.S. Const., amend. I. The Fourteenth Amendment of the United States Constitution makes the establishment clause applicable to the states.
The Supreme Court has developed a three-part test for implementing the establishment clause. Governmental action must have a secular purpose; its primary or principal effect must be one that neither advances nor inhibits religion; and the action must not foster an excessive governmental entaglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). If the challenged governmental action fails any one of the three Lemon factors, it must fall. This state court can not step in to salvage unconstitutional governmental action.
The focus of this case is Black’s sexual harassment action against St. John’s Lutheran Church under the Minnesota Human Rights Act, Minn.Stat. Ch. 363 (1988). The core of her claim involves how St. John’s Lutheran Church disciplines, transfers, and terminates its religious personnel. Her cause of action against St. John’s, by definition, fosters excessive governmental entanglement with religion. Black is free, as the trial court found (and not challenged on appeal), to pursue her claims against Reverend William Snyder, her supervising pastor. It is her derivative lawsuit against respondent St. John’s Lutheran Church that is the problem.
Black reported the alleged sexual harasment by William Snyder to the church council, members of the personnel committee, and the Synod. Both the Church and the Synod investigated Black’s complaint. No direct disciplinary action was taken against William Snyder as a result of these investigations. Logic dictates that after an investigation the “lack” of direct disciplinary action is a form of discipline itself. A church’s right to look at a pastor’s actions, and decide that they warrant suspension or firing, or do not warrant suspension or firing, are protected by the first amendment prohibition against excessive government entanglement on church matters.
Simply put, Black’s lawsuit against St. John’s is based on what she perceives to be inadequate supervision and discipline of a fellow religious.
The majority contends that Black’s sexual harassment claim against St. John’s is unrelated to pastoral qualifications or issues of church doctrine because she seeks only monetary damages and any remedy would not require extensive court oversight. I disagree. The majority opinion concedes the viability of Minker v. Baltimore Annual Conference, 894 F.2d 1354 (D.C.1990), Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F.2d 360 (8th Cir.1991), and the other cited cases upholding dismissal of suits brought by clergy against their church based on types of discrimination such as age or gender. But the majority misuses Minker where it claims that Minker allows this sexual harassment suit because the plaintiff seeks only monetary damages. Minker says exactly the opposite (if we can equate gender discrimination with age discrimination, and I find no case that states a difference between discriminations for purposes of a first amendment analysis). Minker, a pastor, had an age discrimination case against his church which the Minker court found barred by the first amendment regardless of its merits. Minker held, in part,
(1) maintenance of age discrimination suit would violate free exercise clause; (2) court lacked jurisdiction to hear minister’s claim that church constitution created enforceable agreement that church would not discriminate against him on basis of age in making appointments;
Minker, 894 F.2d at 1354. That holding parallels Black’s gender discrimination claim against St. John’s.
On an issue which we do not have present in Black’s case, the Minker court had to pass on Minker’s claim of some type of oral contract to provide him with a different and better congregation in exchange for the consideration of continued work on temporary assignment. The court held *723that Minker’s church, “like any other employer,” is bound to perform promissory obligations in accord with contract law. Id. at 1361. That is neither a new nor an unusual holding, nor is it relevant to Black’s discrimination claim at issue. Contrary to the majority, I find Minker squarely supporting the trial court’s dismissal of Black’s claim.
Allowing Black’s sexual harassment claim to be tried in a civil court requires court supervision over St. John’s disciplinary decision regarding William Snyder. The hierarchy of the Church and Synod has discretion to discipline its pastoral members. “[Q Questions of discipline and the composition of the church hierarchy are at the core of ecclesiastical concern.” Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 717, 96 S.Ct. 2372, 2384, 49 L.Ed.2d 151 (1976) (emphasis added).
Here, Black complained to the Church and Synod hierarchy of pastoral misconduct. The misconduct complaint was investigated, and the Church and Synod hierarchy exercised their discretion by not formally disciplining Snyder. One could argue that something more should have been done, but we are restrained by the establishment clause from interjecting government oversight into the ecclesiastical decision process on whether to discipline or remove a pastoral member.
Not only may a church adopt its own idiosyncratic reasons for appointing pastors, but also it “has a legitimate claim to autonomy in the elaboration and pursuit of that goal.”
Minker, 894 F.2d at 1357.
The supreme court stated:
[T]he rule of action which should govern the civil courts * * * is, that, whenever the questions of discipline * * * have been decided by * * * these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final * * *.
Milivojevich, 426 U.S. at 710, 96 S.Ct. at 2381 (emphasis added).
Litigating Black’s claim that the Church and Synod’s decision not to discipline William Snyder amounts to sexual harassment will require an improper examination of St. John’s internal church values regarding pastoral qualifications. St. John’s balanced the value to itself of continued pastoral service by Snyder versus discipline by removal or transfer versus the transfer or termination of Pastor Black.
The working relationship between pastors Snyder and Black, the future location of where they will exercise their pastoral duties, and the discipline, if any, of each are “inextricably linked to doctrine, religious mission, and the exercise of control by the church.” In re Hill-Murray Federation of Teachers v. Hill-Murray High School, 471 N.W.2d 372, 378 (Minn.App.1991).
The Ohio Civil Rights Commission could not exercise jurisdiction over a religious school and its hiring practices because it would result in excessive government entanglement with religion. See generally Dayton Christian Schools, Inc. v. Ohio Civil Rights Comm’n, 766 F.2d 932, 961 (6th Cir.1985).
Regardless of the merits of Black’s claims that St. John’s Lutheran Church was lax in training and discipline and that somehow that laxness contributed to Pastor Snyder’s sexual harassment of her, I suggest her civil remedies are limited to her ongoing lawsuit against Pastor Snyder. I dissent and would affirm the trial court’s dismissal of all cause of action as to St. John’s Lutheran Church.