Markel v. Union of Orthodox Jewish Congregations of America: Welcome Developments in the Law of Church Autonomy

In its recent decision in Markel v. Union of Orthodox Jewish Congregations of America, the Ninth Circuit took up the “ministerial exception” defense to bar a plaintiff, Yaakov Markel, from pursuing claims related to his employment as a head mashgiach. A mashgiach is an Orthodox Jew appointed by a board of rabbis for the purpose of supervising the preparation of food for compliance with kosher requirements. The employer, Orthodox Jewish Congregations of America (OU), is a nonprofit religious organization serving the Orthodox Jewish community by, among other things, operating a large kosher certification program. Given the dietary requirements of the Orthodox, it was unsurprising that the court unanimously found that the religious tasks of a mashgiach qualified the plaintiff as a “minister” for purposes of the exception.

What was modestly surprising—and an important advance in First Amendment church autonomy doctrine—was that the court did not hesitate to apply the ministerial exception outside of a statutory claim for employment discrimination. Rather than a civil rights claim, plaintiff’s complaint alleged violations of the wage and hour law; it also invoked the torts of fraud and misrepresentation concerning a promised promotion and salary increase. The wider scope for the ministerial exemption is entirely logical. The idea behind the exception is that government has no authority to tell a religious organization whom to employ as its clergy and other ministers, which necessarily entails that the judiciary should not get embroiled in the terms and conditions of an ecclesial employment. That objective is not confined to civil rights claims alleging employment discrimination but applies to all parallel claims that arise out of the same set of operative facts. The plaintiffs’ bar has tried to circumvent the ministerial exception by artful pleading, such as by framing a claim as one of sexual harassment or hostile environment at the workplace, or as breach of the employment contract or a tort. Indeed, a majority of the circuit panel in Markel reached out to overrule a prior Ninth Circuit case  that had refused to dismiss a claim by a novice seeking damages for sexual harassment at the place of his training for the priesthood. A concurrence by Judge Sanchez in Markel would permit a Title VII claim for sexual harassment, so long as the complaint did not seek to overturn an employment decision but only sought an award of damages for past harm. But the majority rightly held that all such claims—including those for past damages—are constitutionally barred by the exception.

The ministerial exception is a subpart of the church autonomy doctrine. As I discuss in my article—Church Autonomy, Textualism, and Originalism: SCOTUS’s Use of History to Give Definition to Church Autonomy Doctrine—in addition to protecting a religious employer’s authority to select and supervise its own ministers and leaders, the Supreme Court has found that the First Amendment’s church autonomy doctrine protects against government interference in disputes over qualifications for church membership and excommunication, the choice of organizational polity, and the civil resolution of religious issues and disputes. The Markel majority claimed that the Supreme Court has taken a “broad” view of who qualifies as a minister or religious functionary. But the concurrence by Judge Sanchez is more in line with the high Court when it observes that the definition of minister is neither broad nor narrow—albeit courts are admonished to be flexible. Occasionally, defense lawyers have asserted that everyone who works for a religious organization is a minister. Such an excess is abusive and hazards a judicial backlash and bad law.

The theory of church autonomy is widely misunderstood, as illustrated by the plaintiff’s arguments in Markel. When faced with OU’s ministerial exception defense, the plaintiff insisted that the claims were entirely “secular.” By this he meant that the elements of his prima facie case did not touch on religion and that OU had failed to show how one of its religious beliefs or practices was curtailed by a mere claim that it had failed to grant the plaintiff a promotion and raise in salary. This argument mistakes church autonomy for a traditional defense under the Free Exercise Clause. The latter is rights-based and does indeed require a showing of religious burden. But church autonomy is about reserving a few discrete zones for the exclusive operation of religious entities. In Markel, that reservation entailed control over the selection and supervision of the mashgiach. Any interference by the government in that sphere is simply not permitted, including a suit over the amount of compensation. To illustrate, assume plaintiff was fired for being late to work. If the plaintiff sued averring uncontradicted evidence that his tardiness had been preauthorized by his direct supervisor, the claim still would be barred by the defense of church autonomy. Church autonomy is not about preventing or remedying a personal religious harm. It is a categorical disempowering of the government, including the civil courts, in a few discrete zones of internal church governance.

The three-judge panel also dismissed plaintiff’s claims against his supervisors and other leaders at OU. Although sued in their individual capacities, the supervisors were acting within the scope of their employment at OU. As such, they enjoyed the same First Amendment immunity as OU. This was not because the supervisors were also ministers or that they were engaged in religious activities when they declined to give plaintiff a raise in salary. Rather, as agents of OU, they enjoyed the same zones of autonomy as the religious entity that employs them.

In a typical case where a plaintiff sues her employer, which in turn invokes the church autonomy defense and moves to dismiss, there immediately arises an issue concerning whether civil discovery should be stayed pending a ruling on the defense. The panel in Markel briefly took up this issue and approved of a Seventh Circuit opinion for how to handle the dilemma. The panel determined that discovery should be allowed on the question of whether plaintiff is a “minister” for purposes of the ministerial exception. That is an interlocutory question of fact to be answered by the trial court. As to the merits, however, discovery should be stayed. This is because to proceed with merits discovery at this stage could by itself constitute a new and additional violation of church autonomy. If the plaintiff is found to be a minister, the plaintiff’s case will be promptly dismissed. But if the plaintiff is found not to be a minister, then the defense will be stricken, and the parties will resume discovery and other trial preparation.

The plaintiff challenged the assertion that OU was a religious organization, a prerequisite to raising the defense of church autonomy. The defendant does not have to be a church to assert church autonomy. All sorts of religious organizations—not just houses of worship—are vested with the defense. Many qualifying entities are social service providers—healthcare and medical clinics, schools and colleges, mission societies operating domestically and abroad.

For purposes of church autonomy doctrine, the definition of a religious organization that can assert the defense was an issue of first impression in Markel. Without discussion, the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC assumed that the church autonomy defense extended to a church-affiliated elementary school. Given the lack of precedent on the issue, the three-judge panel in Markel looked to the religious employer exemption in Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e—1(a) (typically cited as 702(a)). By its plain text, 702(a) exempts religious employers from the requirements of Title VII if the employment practice in question was motivated by the employer’s religion. The exemption extends to a “religious corporation, association, educational institution, or society.” Although Title VII adopts a broad definition of religion, it does not otherwise define who is a religious employer able to invoke 702(a). But there is case law on the matter—including the Ninth Circuit’s opinion in Spencer v. World Vision. The Markel panel was clear that it did not view itself as bound by the 702(a) meaning of exempt religious employers but was only looking for guidance when it came to a definition suitable for the First Amendment’s church autonomy doctrine.

The World Vision test looked to four factors to determine whether the entity in question was a religious organization: 1) whether the organization is organized for a religious purpose, 2) whether it engages primarily in carrying out that religious purpose, 3) whether it holds itself out to the public as carrying out a religious purpose, and 4) whether it does not engage substantially in marketing goods or services. The first three factors are uncontroversial, but the fourth has come in for criticism. The plaintiff in Markel argued that OU failed this fourth factor because part of its activities generated revenue through the sale of kosher products. However, it is not unusual for a religious organization to engage in the sale of goods or services (e.g., sale of literature and other media; workshop fees and training classes; fees for retreat centers and summer camps). The three-judge panel in Markel found that although OU did generate considerable revenue, the proceeds did not inure to any private interest, and it maintained its status as a tax-exempt nonprofit organization. Accordingly, OU met the definition of a religious entity able to invoke the First Amendment immunity of church autonomy.

It is helpful to compare the ministerial exemption grounded in the First Amendment with the religious employer exemption grounded in 702(a) of Title VII. Although there is some overlap between the two exemptions, there are material differences. Religious employers will want to keep both defenses in their arsenal. The most obvious difference is that 702(a) can ostensibly be raised against all employees who sue their religious employer under Title VII, not just against “ministers.”

There are other material differences too. The ministerial exemption is a categorical immunity available to a church or other religious organization when acting within one of the discrete spheres of autonomy: (a) religious questions or disputes; (b) the organization’s election of polity; (c) selecting, employing, and supervising ministers and leaders; and (d) determining the qualification of members, along with member discipline and excommunication. Being grounded in the First Amendment, the defense is available across a variety of federal and state claims. In contrast, the 702(a) exemption is available only when the suit is brought under Title VII. It vests in a religious employer when making an employment decision based on the employer’s religion. When those two criteria are met, under the ascendant reading of 702(a), the employer is exempt from all of Title VII—even claims for retaliation. That better reading of 702(a) was adopted, for example, by Judge Frank Easterbrook in the Seventh Circuit.

All in all, Markel was a good day in the important work of separating church and state, righty understood.