No Cause for Alarm: Bollard v. California Province of the Society of Jesus Does not Destroy First Amendment's "Ministerial Exception" To Civil Rights Act Allowing Churches Freedom To Choose Clergy
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin, as well as sexual harassment in the workplace. A "ministerial exception" to the Act based upon the First Amendment safeguards for religious organizations, allowing churches and ministries to determine the factors they use to choose their ministers and clergy, has been judicially created and recognized for several years. Recently, the United States Court of Appeals for the Ninth Circuit reviewed the scope of this exception in Bollard v. California Province of the Society of Jesus. Rather than limit the scope of the exception or destroy it altogether, the Ninth Circuit's decision preserves the autonomy of religious institutions in choosing their clergy and does not otherwise offend the First Amendment "Free Exercise" clause or the "Establishment" clause of the United States Constitution.
In 1988, John Bollard joined the Jesuit order as a novice. He voluntarily left the order in 1996, alleging he had been sexually harassed for years and his Jesuit superiors had done nothing to prevent it. After receiving a right-to-sue letter from the EEOC, he filed suit in 1997 against the California Jesuits, alleging violations of Title VII and several state law claims.
The United States District Court for the Northern District of California dismissed Bollard's claims based upon the "ministerial exception" to Title VII. Although the Ninth Circuit reversed the District Court, it did so while affirming the "ministerial exception". The court defined the ministerial exception as courts have in the past: it "precludes civil Courts from adjudicating employment discrimination suits by ministers against the church or religious institutions employing them." This protection is based upon the free exercise and establishment clauses of the First Amendment of the United States Constitution, which prevent "impermissible interference by the government."
Under both a free exercise and establishment clause analysis, however, the court determined that such protections were not implicated by the facts alleged by Bollard. Looking at the free exercise clause, the court noted that the Jesuits condemned the alleged harassment as "inconsistent with their values and beliefs." Therefore, a suit alleging such harassment could not interfere with the Jesuit faith, doctrine, or beliefs. The Jesuit order never refused to ordain Bollard, nor do the Jesuits use harassment to choose their clergy. Instead, Bollard voluntarily left the order: therefore, Bollard's suit did not interfere with the Jesuits' selection of ministers. On balance, the court felt that, under a free exercise test, there was little danger that the application of Title VII would interfere with church doctrine or authority, and that there was a strong governmental interest in protecting Bollard from harassment.
The court's analysis was similar under the establishment clause, which forbids excessive substantive and procedural entanglements between church and state. Since, as indicated in the court's free exercise analysis, Bollard's allegations did not implicate the Jesuit's selection of their ministers, there were no significant substantive entanglements - the nature of the harassment and the Jesuits' response would be at issue, not doctrine. Moreover, Bollard was seeking only damages, not reinstatement. Therefore, the court involvement would not be continuing.
Finally, the court acknowledged that the First Amendment limitations would apply to all of Bollard's state law claims on remand. For example, any claims that sought a remedy of reinstatement could not stand, since that would directly interfere with the Jesuit's constitutionally protected choice of ministers. Thus, the Ninth Circuit made it quite clear that the type of remedy sought in either the federal or state claims pursued could very well impact the analysis and result of a Bollard type of case.
Bollard Does Not Endanger a Church's Protected Choice of Clergy or a or Religious Institution's Admission or Dismissal of its Members
The court in Bollard walked a fine line, but on balance walked it well. While it permitted Bollard's Title VII claims to proceed, it did so while acknowledging and preserving the "ministerial exception", allowing churches to choose their own clergy without interference. As the Bollard court stated: "this is not a case about the Jesuit order's choice of representative, a decision to which we would simply defer without further inquiry." For example, if reinstatement had been demanded by Bollard, the court would not have permitted the action to continue: such an action would interfere with the right of the Jesuits to choose their own clergy. This applies equally well to a religious institution's admission or dismissal of members: Bollard stands for the proposition that the courts will not interfere with that choice. Because of this reliance upon the "ministerial exception," Bollard is not a departure from settled law. Courts in the Fourth, Fifth, Seventh, Eighth, and District of Columbia federal circuits, as well as state courts in California, Michigan and New Jersey, have analyzed the ministerial exception by applying it only if the constitutionally protected choice of representative was implicated by the allegations. Bollard is a reaffirmation of the First Amendment protection enjoyed by churches and religious institutions in selecting their ministers and members.
An issue that needs to be monitored as the Bollard case proceeds is how the court will characterize the relationship between the Jesuits and Bollard. Bollard was a seminarian, and Title VII requires an employment relationship in order to be applied. Religious institutions should be concerned that relationships with their members not be characterized legally as employment relationships under Title VII.
For more information on this and other issues affecting faith-based organizations contact Buchanan Ingersoll's Carta Group - a disciplinary group of attorneys and non-legal experts serving churches, synagogues, religious institutions and religiously affiliated hospitals, universities, community centers and social service organizations. The Carta Group represents such clients in matters related to governance, First Amendment, bankruptcy, labor, capital financing, dispute resolution and other legal issues uniquely affecting religious organizations.
In 1988, John Bollard joined the Jesuit order as a novice. He voluntarily left the order in 1996, alleging he had been sexually harassed for years and his Jesuit superiors had done nothing to prevent it. After receiving a right-to-sue letter from the EEOC, he filed suit in 1997 against the California Jesuits, alleging violations of Title VII and several state law claims.
The United States District Court for the Northern District of California dismissed Bollard's claims based upon the "ministerial exception" to Title VII. Although the Ninth Circuit reversed the District Court, it did so while affirming the "ministerial exception". The court defined the ministerial exception as courts have in the past: it "precludes civil Courts from adjudicating employment discrimination suits by ministers against the church or religious institutions employing them." This protection is based upon the free exercise and establishment clauses of the First Amendment of the United States Constitution, which prevent "impermissible interference by the government."
Under both a free exercise and establishment clause analysis, however, the court determined that such protections were not implicated by the facts alleged by Bollard. Looking at the free exercise clause, the court noted that the Jesuits condemned the alleged harassment as "inconsistent with their values and beliefs." Therefore, a suit alleging such harassment could not interfere with the Jesuit faith, doctrine, or beliefs. The Jesuit order never refused to ordain Bollard, nor do the Jesuits use harassment to choose their clergy. Instead, Bollard voluntarily left the order: therefore, Bollard's suit did not interfere with the Jesuits' selection of ministers. On balance, the court felt that, under a free exercise test, there was little danger that the application of Title VII would interfere with church doctrine or authority, and that there was a strong governmental interest in protecting Bollard from harassment.
The court's analysis was similar under the establishment clause, which forbids excessive substantive and procedural entanglements between church and state. Since, as indicated in the court's free exercise analysis, Bollard's allegations did not implicate the Jesuit's selection of their ministers, there were no significant substantive entanglements - the nature of the harassment and the Jesuits' response would be at issue, not doctrine. Moreover, Bollard was seeking only damages, not reinstatement. Therefore, the court involvement would not be continuing.
Finally, the court acknowledged that the First Amendment limitations would apply to all of Bollard's state law claims on remand. For example, any claims that sought a remedy of reinstatement could not stand, since that would directly interfere with the Jesuit's constitutionally protected choice of ministers. Thus, the Ninth Circuit made it quite clear that the type of remedy sought in either the federal or state claims pursued could very well impact the analysis and result of a Bollard type of case.
Bollard Does Not Endanger a Church's Protected Choice of Clergy or a or Religious Institution's Admission or Dismissal of its Members
The court in Bollard walked a fine line, but on balance walked it well. While it permitted Bollard's Title VII claims to proceed, it did so while acknowledging and preserving the "ministerial exception", allowing churches to choose their own clergy without interference. As the Bollard court stated: "this is not a case about the Jesuit order's choice of representative, a decision to which we would simply defer without further inquiry." For example, if reinstatement had been demanded by Bollard, the court would not have permitted the action to continue: such an action would interfere with the right of the Jesuits to choose their own clergy. This applies equally well to a religious institution's admission or dismissal of members: Bollard stands for the proposition that the courts will not interfere with that choice. Because of this reliance upon the "ministerial exception," Bollard is not a departure from settled law. Courts in the Fourth, Fifth, Seventh, Eighth, and District of Columbia federal circuits, as well as state courts in California, Michigan and New Jersey, have analyzed the ministerial exception by applying it only if the constitutionally protected choice of representative was implicated by the allegations. Bollard is a reaffirmation of the First Amendment protection enjoyed by churches and religious institutions in selecting their ministers and members.
An issue that needs to be monitored as the Bollard case proceeds is how the court will characterize the relationship between the Jesuits and Bollard. Bollard was a seminarian, and Title VII requires an employment relationship in order to be applied. Religious institutions should be concerned that relationships with their members not be characterized legally as employment relationships under Title VII.
For more information on this and other issues affecting faith-based organizations contact Buchanan Ingersoll's Carta Group - a disciplinary group of attorneys and non-legal experts serving churches, synagogues, religious institutions and religiously affiliated hospitals, universities, community centers and social service organizations. The Carta Group represents such clients in matters related to governance, First Amendment, bankruptcy, labor, capital financing, dispute resolution and other legal issues uniquely affecting religious organizations.
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