A rock solid foundation for the wall of separation between church and state in employment decisions concerning clergy.

Federal courts rely on the "ministerial exception" to preclude subject matter jurisdiction over actions by clergy members against religious organizations for employment decisions concerning the hiring, firing, suspension, and placement of clergy. (1) Though the ministerial exception typically arises in Title VII claims, it has been extended to "any state law cause of action that would otherwise impinge on the church's prerogative to choose its ministers or to exercise its religious beliefs in the context of employing its ministers." Bollard v. The California Province of the Society of Jesus, 196 F.3d 940,950 (9th Cir. 1999). (2)

In spite of the fact that the ministerial exception is a long-established principle of First Amendment law, until the recent opinion of Southeastern Conference Association of Seventh-day Adventists, Inc. v. Pastor Keith A. Dennis, 862 So. 2d 842 (Fla. 4th DCA 2004), Florida's state courts have been limited in their adoption of the exception. In Dennis, the Fourth District Court of Appeal held that courts cannot assume subject matter jurisdiction over employment disputes between a religious organization and its clergy. Id. at 844. With this opinion, the appellate court adopted the principles of the ministerial exception, establishing powerful precedent concerning a religious organization's right to be free from court intervention into matters concerning the employment of clergy.

Evolution and Application of Ministerial Exception in Federal Courts

The First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." This portion of the First Amendment contains two clauses: the Establishment Clause and the Free Exercise Clause. Both clauses serve to prohibit unlawful state interference with religious institutions. The Establishment Clause precludes excessive government entanglement with religion. EEOC v. Catholic University of America, 83 F.3d 455,465 (D.C. Cir. 1996). In application, the "[i]nvestigation by a government entity into a church's employment of its clergy" has been found to violate the Establishment Clause because the investigation "would almost always entail excessive government entanglement into the internal management of the church." Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000).

The Free Exercise Clause prohibits government action that encroaches on "the ability of a church to manage its internal affairs." Catholic University of America, 83 F.3d at 460. This protection precludes government interference with church administration and the appointment of clergy. Id. at 463.

McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972), was the first case to articulate the ministerial exception. (3) In McClure, the complainant was a female minister of the Salvation Army, a church. After being terminated, the minister sued the Salvation Army, alleging discriminatory employment practices in violation of Title VII. Id. at 555. In affirming dismissal of the action for lack of jurisdiction, the appellate court found:

The 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. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the internal function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister's salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church.

Id. at 558-59.

Approximately four years after McClure, in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 725 (1976), the U.S. Supreme Court reversed an Illinois Supreme Court finding which had set aside the removal and defrockment of a church bishop. The Illinois Supreme Court found that the removal and defrockment had to be set aside as "arbitrary" because, in the court's opinion, the church proceedings resulting in the removal and defrockment were not conducted according to the church's constitution and penal code. Id. at 708. The Illinois Supreme Court amended its original opinion to hold that, though the bishop had been properly suspended, that suspension terminated by operation of church law when the bishop was not validly tried within one year of his indictment. Id.

In reversing the Illinois Supreme Court's ruling, the U.S. Supreme Court found:

[C]ivil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense "arbitrary" must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly requires the church judicatory to follow, or else in to the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; recognition of such an exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept the ecclesiastical decisions of church tribunals as it finds them.

Id. at 713.

The Supreme Court stated: Indeed, it is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria. Constitutional concepts of due process, involving secular notions of "fundamental fairness" or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance.

Id. at 714-15.

In Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164, 1165 (4th Cir. 1985), the Fourth Circuit Court of Appeals affirmed the district court's finding that a Title VII action against a church by a complainant who had been denied a pastoral position was barred by the religious clauses of the First Amendment. Calling upon the spirit of the Establishment Clause, the Rayburn court reiterated that religious organizations must have "power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Id. at 1167 (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952)). The court went on to state: "The right to choose ministers without government restriction underlies the well-being of religious community, for perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large." Id. at 1167-68 (citation omitted).

The Rayburn court held that the Free Exercise Clause forbids courts from inquiring into whether a religious basis exists for denial of a pastoral position. Id. at 1169. The court stated:

While it is our duty to determine whether the position of associate in pastoral care is important to the spiritual mission of the Seventh-day Adventist Church, we may not then inquire whether the reason for Rayburn's rejection has some explicit grounding in theological belief. Emphasis on the role of an associate in pastoral care rather than the reasons for Rayburn's rejection underscores our constitutional concern for the unfettered right of the church to resolve certain questions. The fact that the Seventh-day Adventist Church does not ordain women, the asserted scriptural basis for that practice, and the influence or lack thereof of this restriction in Rayburn's case do not influence our analysis. In "quintessentially religious" matters, the free exercise clause of the First Amendment protects the act of a decision rather than a motivation behind it. In these sensitive areas, the state may no more require a minimum basis in doctrinal reasoning than it may supervise doctrinal content.

Id. (citation omitted) (quoting Serbian Eastern Orthodox Diocese, 426 U.S. at 720). (4)

Six years later, the Eighth Circuit Court of Appeals, in Scharon v. St. Luke's Episcopal Presbyterian Hospitals, 929 F.2d 360, 363 (8th Cir. 1991), affirmed the district court's finding that determination of an ordained priest's action against a church affiliated hospital for age and sex discrimination would violate the First Amendment. The appellate court held:

Personnel decisions by church-affiliated institutions affecting clergy are per se religious matters and cannot be reviewed by civil courts, for to review such decisions would require the courts to determine the meaning of religious doctrine and canonical law and to impose a secular court's view of whether in the context of the particular case religious doctrine and canonical law support the decisions the church authorities have made. This is precisely the kind of judicial second-guessing of decision-making by religious organizations that the Free Exercise Clause forbids. Id.

In EEOC v. Catholic University of America, 83 F.3d 455,467 (D.C. Cir. 1996), the U.S. Court of Appeals for the District of Columbia affirmed dismissal of a Title VII action by a Catholic nun against the Catholic University of America. In reaching its decision, the court relied upon the ministerial exception, which the court acknowledged "is designed to protect the freedom of the church to select those who will carry out its religious mission." Id. at 462.

In EEOC v. Roman Catholic Diocese of Raleigh, North Carolina, 213 F.3d 795, 801 (4th Cir. 2000), the Fourth Circuit Court of Appeals affirmed the dismissal for lack of subject matter jurisdiction of the EEOC's complaint against a Catholic diocese and a cathedral, brought on behalf of a church employee who held the positions of director of music ministry and part-time elementary school music teacher. The EEOC alleged the church discriminated against the employee on the basis of her gender through a series of adverse employment actions against her. Id. at 797. In support of its finding that the ministerial exception applied to the employee's action, the court reiterated the "general rule" concerning application of the exception, "'if the employee's primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered clergy.'" Id. at 801 (quoting Rayburn, 772 F.2d at 1169).

The same year, in Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000), the 11th Circuit Court of Appeals affirmed summary judgment in favor of a church in an action where an ordained minister sued the church for retaliation and constructive discharge. The minister had helped a coworker prepare a complaint to the church elders, alleging sexual misconduct toward the coworker. Shortly after helping prepare the complaint, the minister was reassigned to a church over 800 miles away from his home, with a substantial reduction in salary. The minister alleged he could not comply with the reassignment, and consequently was forced to resign. Id. at 1301.

The above-cited cases exemplify the federal courts' development and implementation of the ministerial exception. Pursuant to Rayburn, courts can only determine whether a claimant's position is important to the "spiritual mission" of the religious organization. 772 F.2d at 1169. Once the court has made this determination, no other inquiry is permitted. Id. The court is strictly prohibited from requiring the religious organization to provide a religious basis in support of the challenged employment decision. Id. Put another way, once the court has determined the claimant is considered clergy, the court is thereafter divested of jurisdiction over the matter.

Relevant Florida Case Law Prior to Dennis

In 1937, the Florida Supreme Court issued the opinion of Partin v. Tucker, 172 So. 89 (Fla. 1937), and in so doing, acknowledged a religious organization's right to expel members without court intervention. Id. at 92. Partin concerned a dispute over control of church property. Members of a Baptist church became divided upon doctrinal questions, resulting in several church members being excommunicated. The excommunicated members claimed a right of possession to certain church property. Id. at 90.

In addressing the excommunication of the members, the Florida Supreme Court held, "When a religious congregation, such as is here involved, at a regular conference meeting ... expels members, that action is final and the courts cannot interfere to reinstate them." Id. at 92. As support for this holding, the court quoted with approval from State ex rel. Johnson et al. v. Tulane Ave. Baptist Church, 144 So. 639 (La. App. 1932):

By the great weight of authority the civil courts will not interfere in church government, or discipline, in ecclesiastical or spiritual relation with their members. The church authorities and such tribunals as they may set up for themselves are supreme in all spiritual matters and may arbitrarily expel from membership any individual with or without cause, as long as no civil rights are involved. In other words, the question of who shall be admitted to fellowship in any religious sect or order is one which concerns only the particular sect or order, and they are not required to worship with anyone whose presence is not agreeable. This is true, whether the expulsion of the individual be in disregard of the usage and practice of the church or not. Id. at 92-93.

Partin did not involve an employment decision concerning clergy. Therefore, the court did not address a religious organization's right to make employment decisions concerning clergy free from court intervention. However, the constitutional principles acknowledged in Partin established a solid building site for Dennis.

In 1998, in the matter of Goodman v. Temple Shir Ami, 712 So. 2d 775 (Fla. 3d DCA 1998), the Third District Court of Appeal affirmed that portion of the trial court's order dismissing a rabbi's claim against his former temple for both breach of a second employment contract and for defamation. The background to Goodman began with the negotiation of an alleged second contract to continue the rabbi's employment with the temple. During the course of these negotiations, the temple's board of directors met to discuss concerns about the rabbi. These concerns included disagreements over religious concepts. During the meeting, one board member divulged that he had conducted an investigation of the rabbi. The investigation was purported to have revealed that the rabbi had committed a crime by striking the senior rabbi at a Chicago temple. Id. at 776.

The temple's board of directors voted against renewing the rabbi's contract. Thereafter, members of the temple were advised of the board's action, which included repetition of the statements made regarding the investigation into the rabbi. The rabbi filed suit, seeking relief against the temple for, inter alia, breach of the second contract and defamation. Id. at 777.

The trial court dismissed the rabbi's entire action for lack of subject matter jurisdiction, finding with respect to the temple:

There is no serious question that the causes of action against Temple Shir Ami are constitutionally barred. In this case there were meetings, and at the meetings a decision was made concerning Rabbi Goodman's continued employment. That decision is ecclesiastical in nature, involving the selection of the Temple's spiritual leader, and for this reason the Court has no jurisdiction over the claims against Temple Shir Ami.

Id.

In affirming dismissal of the counts against the temple for breach of the second contract and for defamation, the Third District Court of Appeal found, "[i]n order for the trial court to have resolved these disputes, it would have had to immerse itself in religious doctrines and concepts that 'determine' whether the religious disagreements were a 'valid' basis for the termination of [the rabbi's] services." Id, at 777. The appellate court went on to find, "Inquiring into the adequacy of the religious reasoning behind the dismissal of a spiritual leader is not a proper task for a civil court." Id. (5)

Because Goodman relied upon the principle of constitutional law that employment disputes between a spiritual leader and a religious organization cannot be resolved by the courts, it is arguably the strongest Florida opinion prior to Dennis to adopt the principles of the ministerial exception. However, the court wrote little law into the opinion, leaving open for interpretation the breadth of the opinion's application. Fortunately, Dennis clearly identifies the constitutional prohibition against subject matter jurisdiction over employment disputes between clergy and religious organizations. 862 So. 2d at 843-844.

Dennis is also significant because it comes in the wake of two landmark First Amendment opinions from the Florida Supreme Court: Malicki v. Doe, 814 So. 2d 347 (Fla. 2002); and Doe v. Evans, 814 So. 2d 370 (Fla. 2002). In these opinions, the Florida Supreme Court permitted trial courts to maintain subject matter jurisdiction over actions by parishioners against religious organizations for the alleged negligent hiring, retention, and supervision of ministers, where the ministers were claimed to have committed acts of sexual misconduct against parishioners.

Malicki concerned an action by two parishioners against a priest, a church, and an archdiocese. 814 So. 2d at 352. The complaint alleged the priest "fondled, molested, touched, abused, sexually assaulted and/or battered" the parishioners on the premises of the church. Id. As to the church defendants, the parishioners sued for negligent hiring, retention, and supervision of the priest. Id. The trial court dismissed the claims against the church defendants on constitutional grounds. Id. at 353. The Third District Court of Appeal reversed the dismissal, and the Florida Supreme Court approved the Third District's finding. Id. at 353-65.

The Supreme Court summarized the matters at issue in Malicki:

The general issue presented in this case is whether, in the name of the First Amendment, religious institutions can be shielded from otherwise cognizable tort claims caused by their agents and employees. In the context of this case, the specific question is whether the First Amendment bars a secular court's consideration of the parishioners' claims of negligent hiring and supervision against the Church Defendants based upon the claim that Malicki "fondled, molested, touched, abused, sexually assaulted and/or battered" the minor and adult parishioners.

Id. at 353.

In reaching its opinion, the court reconfirmed that "the First Amendment prevents courts from resolving internal church disputes that would require adjudication of questions of religious doctrine." Id. at 355. As the Rayburn court had done 15 years earlier, the Florida Supreme Court quoted Kedroff v. St. Nicholas Cathedral when reiterating, "the First Amendment provides churches with the 'power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'" Malicki, 814 So. 2d at 356 (quoting Kedroff, 344 U.S. 94, 116 (1952)). The court thereafter proceeded to make a critical distinction, stating, "Intrachurch disputes, however, must be distinguished from disputes between churches and third parties." Id.

The Florida Supreme Court cited federal law to evidence the constitutional line in the sand drawn between protected internal disputes and unprotected third party suits. Id. at 356-357. The court quoted General Counsel on Finance and Administration of the United Methodist Church v. Superior Court of California, 439 U.S. 1355, 1372-73 (1978):

There are constitutional limitations on the extent to which a civil court may inquire into and determine matters of ecclesiastical cognizance and polity in adjudicating interchurch disputes.... But this Court has never suggested that those constraints similarly apply outside the context of such intraorganization disputes.... [Serbian Eastern Orthodox Diocese and other related cases] are premised on a perceived danger that in resolving intrachurch disputes the State will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs.

Malicki, 814 So. 2d at 356-57 (citation omitted).

The court also stated:

A court must determine whether the dispute "is an ecclesiastical one about 'discipline, faith, internal organization, or ecclesiastical rule, custom or law,' or whether it is a case in which [it] should hold religious organizations liable in civil courts for 'purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization.'"

Id. at 357 (quoting Bell v. Presbyterian Church, 126 F.3d 328, 331 (4th Cir. 1997)). (6)

Having acknowledged the importance of insulating a religious organization from court intervention into internal matters, the Florida Supreme Court spoke directly to the facts of Malicki, stating:

We reject the contention that the First Amendment may be invoked to bar the adjudication of this dispute because this case is not an internal church matter. Rather, this is a dispute between church officials and two parishioners who allege that they were injured as a result of the negligence of the church officials.

Id. at 360.

The court went on to hold that the "core inquiry in determining whether the Church Defendants are liable will focus on whether they reasonably should have foreseen the risk of harm to third parties.... a neutral principle of tort law." Id. at 364. The court thereafter summarized the holding in Malicki as follows:

Because the underlying claim arises from the alleged sexual assault and battery of a minor and adult parishioner by a priest, and because the claim for negligence involves whether the Church Defendants knew or should have known of the tortious conduct, we conclude the First Amendment may not be invoked to bar the parishioners from seeking redress for the alleged tortious conduct of the Church Defendants.

Id.

Similar to Malicki, Doe v. Evans concerned an action by a parishioner against a church, a diocese, and the bishop of the diocese, for the alleged sexual misconduct of a reverend. Evans, 814 So. 2d at 372. The parishioner claimed that during the course of marital counseling, the reverend became involved with the parishioner in a "romantic manner." Id. The parishioner sued the church defendants for, inter alia, negligent hiring and supervision of the reverend. The Fourth District Court of Appeal affirmed the trial court's dismissal of the counts against the church defendants. Id. Relying upon Malicki, the Florida Supreme Court reversed dismissal of the negligent hiring and negligent supervision claims. (7)

In Malicki, the Florida Supreme Court expressly joined the majority of state and federal jurisdictions that have found under similar circumstances that the First Amendment does not provide a shield behind which religious organizations may avoid liability for harm caused to parishioners arising from the sexual misconduct of clergy. 814 So. 2d at 351. This function, coupled with the language in Malicki concerning the First Amendment protecting internal church disputes, evidences that Malicki and Evans do not expose religious organizations to liability beyond the narrow factual scenario of when a religious organization is sued by a third party for injuries arising from the negligent hiring, retention, and/or suspension of a clergy member. (8) Regardless, the possibility remains that there will be efforts to misapply the holdings in Malicki and Evans to other disputes concerning the employment of clergy. Though Dennis does not cite Malicki or Evans, the exacting language of Dennis dispels attempts to apply the holdings to employment disputes between religious organizations and clergy.

Southeastern Conference Association of Seventh-day Adventists v. Dennis

Relying entirely upon federal law, the Fourth District Court of Appeal found, in a unanimous opinion, that courts lack subject matter jurisdiction over employment disputes between religious organizations and clergy. Dennis, 862 So. 2d at 844. Because of this opinion, Florida jurisprudence now has a succinct and unwavering adoption of the ministerial exception.

Dennis is the product of a petition for writ of prohibition filed by the Southeastern Conference Association of the Seventh-day Adventists, challenging the trial court's jurisdiction over a minister's action against the church for the alleged negligent failure by the church to follow internal policies and procedures when investigating allegations of sexual misconduct lodged against the minister. At the trial level, the conference was one of several defendants sued by the minister. However, the conference was the only party sued in count I of the complaint, titled "Negligence against Southeastern Conference Association of Seventh-day Adventists, Inc." The count alleged that the minister was suspended from his position as a result of the conference's negligent handling of allegations brought by a person in the minister's congregation charging the minister with having committed the offense of making sexually suggestive

comments.

The minister contended that the conference breached its duty to him by failing to comply with the conference's own employee handbook and by not obtaining a verified complaint prior to suspending the minister. The minister also alleged "unreasonable delay" and the "failure to disseminate correct information" as the basis for recovery. The minister claimed that as a result of the conference's alleged actions or inactions, he "was unable to return to full pastoral duties." Count I concluded by listing the minister's purported injuries, which were alleged to include that the minister had been "denied or refused ... rights and privileges" as a member of the church and as a minister.

The Southeastern Conference moved for summary judgment, arguing that under the First Amendment, the trial court lacked subject matter jurisdiction over count I. The motion was denied. The conference thereafter filed a petition for writ of prohibition with the appellate court. The court ultimately granted the petition, finding the Palm Beach County Circuit Court lacked jurisdiction over the dispute because resolution of count I would entangle the court in the ecclesiastical and ministerial decisions of the church. Dennis, 862 So. 2d at 843.

The appellate court defined the issue on appeal as "whether the circuit court can adjudicate a claim against a religious organization based on its alleged negligence in suspending one of its clergy." Id. at 844. Finding that the trial court could not assume subject matter jurisdiction over this matter, the appellate court stated: "Courts may not consider employment disputes between a religious organization and its clergy because such matters necessarily involve questions of internal church discipline, faith, and organization that are governed by ecclesiastical rule, custom, and law." Id. at 844.

The court found that "[w]hether an individual is qualified to be a clergy member of a particular faith is a matter to be determined by the procedures and dictates of that particular faith." Id. at 844.

With respect to a minister's relationship to his or her religious organization, the court stated: "The interaction between a church and its pastor is an essential part of church government. In particular, 'a minister's employment relationship with his church implicates 'internal church discipline, faith, and organization, all of which are governed by ecclesiastical rule, custom, and law." Id. at 844 (quoting Lewis v. Seventh-day Adventists Lake Region Conference, 978 F.2d 940, 942 (6th Cir. 1992) (citation omitted)).

Calling upon well-established precedent concerning a religious organization's right to self government, the court further held: "Civil Courts must accept 'the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law." Id. at 844 (quoting Serbian E. Orthodox Diocese v. Milivojevieh, 426 U.S. 696, 713 (1976)). "[W]here religious organizations establish rules for their internal discipline and governance, and tribunals for adjudicating disputes over these matters, 'the Constitution requires that civil courts accept their decisions as binding upon them.'" Id. (quoting Crowder v. S. Baptist Convention, 828 F.2d 718, 726 (11th Cir. 1987)).

The Fourth District Court of Appeal concluded Dennis by stating, "[C]ivil courts must abstain from deciding ministerial employment disputes or reviewing decisions of religious judicatory bodies concerning the employment of clergy, 'because such state intervention would excessively inhibit religious liberty.'" Id. at 844 (quoting Lewis v. Seventh-day Adventists Lake Region Conference, 978 F.2d 940, 942 (6th Cir. 1992)).

Under Dennis, employment disputes in Florida between clergy persons and their religious organizations are per se religious matters, protected from court review. The sole exception to this rule of law may be cases where an employment contract exists between the parties. (9) Furthermore, where a religious organization has adjudicated matters affecting discipline, faith, internal organization, or ecclesiastical rule, Dennis stands for the proposition that courts are prohibited from assuming subject matter jurisdiction over actions challenging the religious organization's findings. 862 So. 2d at 844.

In terms of the continued evolution of constitutional law in Florida, Dennis accomplishes three things. First, Dennis stands as an open adoption of the principles of the ministerial exception by a Florida appellate court. (10) Though the opinion does not specifically refer to the phrase "ministerial exception," the court does reference the "ecclesiastical abstention doctrine," which has been relied upon to preclude subject matter jurisdiction over employment disputes between clergy and religious organizations. 862 So. 2d at 843-844. (11)

Second, Dennis is the first published opinion in the wake of Malicki and Evans where a court enforced a religious organization's First Amendment right to be free from court intervention into matters concerning the employment of clergy. Thus, Dennis protects against efforts to push the constitutional limits of Malicki and Evans.

Finally, Dennis is itself a powerful tool for practicing attorneys because it provides scholarly analysis of the fundamental constitutional principles that arise when a religious organization's employment decisions concerning clergy are challenged. Through this authoritative opinion, the Fourth District Court of Appeal has established a solid foundation in Florida for the wall of separation between church and state regarding employment decisions concerning clergy.

(1) Defining the ministerial exception, the court in EEOC v. Catholic University of America, 83 F.3d 455,467 (D.C. Cir. 1996) held: "The ministerial exception is judicial shorthand for two conclusions: the first is that the imposition of secular standards on a church's employment of its ministers will burden the free exercise of religion; the second, that the state's interest in eliminating employment discrimination is outweighed by a church's constitutional right of autonomy in its own domain."

In the more recent opinion of Miller v. Bay View United Methodist Church, 141 F. Supp. 2d 1174, 1180-1181 (E.D. Wis. 2001), the court defined the aim of the ministerial exception as "preventing the introduction of government standards into a religious institution's selection of its own clergy."

(2) The ministerial exception also has been applied to bar ADA and ADEA claims. See Starkman v. Evans, 198 F.3d 173, 177 (5th Cir. 1999) (relying on ministerial exception to affirm summary judgment in favor of church in ADA action brought by choir director); Sanchez v. Catholic Foreign Society of America, 82 F. Supp. 2d 1338, 1343 (M.D. Fla. 1999) (relying upon ministerial exception in granting summary judgment in favor of church in ADEA action by priest).

(3) See EEOC v. Roman Catholic Diocese of Raleigh, North Carolina, 213 F.3d 795, 800 (4th Cir. 2000) (finding the ministerial exception was first articulated in McClure); Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164, 1168 (4th Cir. 1985) (same).

(4) EEOC v. Catholic University of America, 83 F.3d 455,464-465 (D.C. Cir. 1996), relied upon much of this language from Rayburn to find "It]hat the University did not assert any religious basis for denying Sister McDonough's tenure does not affect our conclusion; nor does the fact that her application never reached the ecclesiastical levels of review." 83 F.3d at 464-465. See also EEOC v. Roman Catholic Diocese of Raleigh, North Carolina, 213 F.3d 795, 801 (4th Cir. 2000) (holding the ministerial exception "precludes any inquiry whatsoever into the reasons behind a church's ministerial employment decision").

(5) The appellate court reversed the dismissal of the rabbi's claim against the temple for sums unpaid under the original contract. Id. at 777. The rabbi sought sums for services as a rabbi and for reimbursement of expenses for attending a Chicago conference. Id.

(6) In Bell, the appellate court affirmed dismissal of a reverend's action against various religious organizations for claims alleged to have arisen from the termination of the reverend's employment. Bell, 126 F.3d at 333. The court held the religious organizations' decision to expend funds raised for religious purposes in a manner that brought an end to the reverend's employment was protected from attack in civil court by the First Amendment. Id. at 331-33.

(7) Evans also concerned a count for breach of fiduciary duty. In reversing dismissal of this count, the Court stressed, "liability in this case rests on the assertion of an abuse of a marital counseling relationship through an inappropriate sexual relationship." Id. at 375. Seeking guidance from federal law and out-of-state law, the Court found "the evaluation of whether a fiduciary relationship arose and whether a religious organization breached this duty does not require an adjudication of religious doctrine or beliefs." Id. One of the federal cases heavily relied upon by the Court to reach this conclusion was Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir. 1999). Id. at 374-375. Martinelli concerned an action by a parishioner against a diocese for alleged sexual abuse imposed upon the parishioner by a priest during the parishioner's childhood. Martinelli, 196 F.3d at 415-416.

(8) Further evidence that Malicki and Evans do not undermine the ministerial exception is found in that portion of Malicki where the Court quotes from Bear Valley Church of Christ v. DeBose, 923 P.2d 1315, 1132 (Colo. 1996), "[w]hile claims for illegal hiring or discharge of a minister inevitably involve religious doctrine, that is not the case for a claim of negligent hiring of a minister." 814 So. 2d at 363.

(9) See Goodman v. Temple Shir Ami, 712 So. 2d 775, 777 (Fla. 3d D.C.A. 1998)(holding rabbi could recover sums owed under original contract for services as a rabbi and for expenses for attending a Chicago conference); Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354, 1359 (D.C. Cir. 1990) (reversing dismissal of count for alleged breach of oral promise to find minister a different congregation, holding "[a] church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court"). But see Lynch v. Church of Today, 2001 WL 765883, *2 (Mich. Ct. App. 2001) (finding ecclesiastical abstention doctrine prevented trial court from exercising jurisdiction over contract action against church arising from minister's termination) (unpublished).

(10) Dennis cites Rayburn and Gellington, two strong ministerial exception cases. 862 So. 2d at 844.

(11) See Dobrota v. Free Serbian Orthodox Church, 952 P.2d 1190, 1195 (Ariz. Ct. App. 1998) (holding rule of ecclesiastical abstention precluded trial court from hearing priest's tort claims against church because claims were inseparable parts of the process of divesting the priest of his authority); Rashedi v. General Board of Church of Nazarene, 54 P.3d 349, 323 (Ariz. Ct. App. 2003) (finding ecclesiastical abstention doctrine precludes civil courts from inquiring into ecclesiastical matters such as employment disputes between a religious organization and its clergy); Lynch v. Church of Today, 2001 WL 765883, *2 (Mich. Ct. App. 2001) (finding ecclesiastical abstention doctrine prevented trial court from exercising jurisdiction over contract action against church arising from minister's termination) (unpublished); Abt v. Moore, 2003 WL 1880136, *2 (Mich. Ct. App. 2003) (finding doctrine of ecclesiastical abstention supported dismissal of action challenging employment of minister) (unpublished).

Ronald P. Ponzoli, Jr., practices with the law firm of Richman Greer Well Brumbaugh Mirabito & Christensen, P.A., in the firm's West Palm Beach office. His practice includes complex commercial litigation, personal injury litigation, and appellate work. Mr. Ponzoli successfully represented the Southeastern Conference Association of Seventh-day Adventists, Inc., on appeal in the matter of Southeastern Conference Association of Seventh-day Adventists, Inc. v. Pastor Keith A. Dennis.