Elvig v. Calvin Presbyterian Church

Page 790

397 F.3d 790

Monica L. McDowell ELVIG, Plaintiff-Appellant, v. CALVIN PRESBYTERIAN CHURCH; Will Ackles, Defendants-Appellees.

No. 02-35805.

United States Court of Appeals, Ninth Circuit.

February 11, 2005.

Judith A. Lonnquist, Esq., Law Office of Judith Lonnquist, Seattle, WA, for Plaintiff-Appellant.

Elizabeth K. Reeve, Reeve Shima, David E. Powell, Seattle, WA, for Defendants-Appellees.

Before: TROTT, FISHER and GOULD, Circuit Judges.

Concurrence by Judge W. FLETCHER; Concurrence by Judge KOZINSKI; Dissent by Judge KLEINFELD; Dissent by Judge GOULD; Dissent by Judge BEA.

ORDER

Judge Fisher has voted to deny the petition for rehearing en banc, and Judges Trott and Gould have voted to grant the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for panel rehearing en banc, filed August 4, 2004, is

DENIED.

W. FLETCHER, Circuit Judge, with whom KOZINSKI, GRABER, and FISHER, Circuit Judges, join, concurring in the order denying rehearing en banc:

Each of the dissents from the denial of rehearing en banc recognizes that our decision in this case follows our earlier decision in Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999). Judge Kleinfeld, Judge Gould, and Judge Bea contend that both Bollard and the case before us constitute constitutionally forbidden intrusions into the employment relationship between a church and its minister. Judge Kleinfeld also contends that our decisions in Bollard and this case conflict with the decisions of our sister circuits.

I disagree with both contentions. I write to emphasize that the rule announced in Bollard and applied in this case is consistent with the constitutional underpinnings of the ministerial exception, and that every court that has addressed a minister's ability to recover damages for sexual harassment has reached the same conclusion we have.

I. Intrusion into the Relationship Between a Church and Its Minister

Title VII does not contain an exception for plaintiffs employed as ministers. Rather, the "ministerial exception" to Title VII is carved out from the statute based on the commands of the Free Exercise and Establishment Clauses of the First Amendment. Because the "ministerial exception" is carved out of the otherwise applicable requirements of Title VII, the scope of the exception is limited to that which is required by the First Amendment. The ministerial exception protects the church's interest in choosing its ministers, and in deciding on the duties to be performed by those ministers. For example the ministerial exception permits the Catholic Church to restrict the priesthood to men, and permits a church to prescribe the duties of a minister, free from scrutiny under Title VII.

In both Bollard and this case, the appeals came to us on motions to dismiss under Rule 12(b)(6) and on the pleadings under Rule 12(c) or 12(h)(2). We therefore assumed the truth of the allegations in the complaints. In Bollard, a Jesuit novice complained of repeated unwelcome homosexual sexual advances during a six-year period by his superiors in the Jesuit order. Bollard brought the offensive conduct to the attention of priests within the Jesuit hierarchy, but got no response. He finally resigned his position and brought suit for damages for sexual harassment under Title VII.

Bollard was not fired from his position as a Jesuit novice. Indeed, the Jesuits were entirely satisfied with his job performance and urged him to stay. Nor did Bollard seek reinstatement or changes in his duties. He sought only compensatory damages for the harm he suffered from the sexual harassment to which he had been subjected. We allowed his suit seeking such damages to go forward.

In this case, Elvig was an associate pastor of Calvin Presbyterian Church. She was subjected to sexual harassment by her superior, the pastor at her church. She complained of the offending conduct to appropriate church authorities, who took no action to stop the harassment. The pastor then retaliated against her for having complained about the harassment. Elvig filed a complaint with the EEOC. She was thereafter terminated from her ministry at Calvin Presbyterian Church, and was prevented from seeking employment as a pastor in other Presbyterian churches.

We declined to allow damages to Elvig for having been terminated, or for having been prevented from seeking ministerial employment at other churches. We held that those actions came within the ministerial exception to Title VII, and that damages for these actions would have constituted an unconstitutional intrusion into the ministerial relationship. On the other hand, following Bollard, we allowed Elvig to seek damages for the sexual harassment and retaliation to which she was subjected:

[T]he termination of Elvig's ministry and her inability to find other pastoral employment are consequences of protected employment decisions. Consequently, a damage award based on lost or reduced pay Elvig may have suffered from those employment decisions would necessarily trench on the Church's protected ministerial decisions. The same would be true of emotional distress or reputational damages attributable to those decisions. On the other hand, Elvig may recover for emotional distress and reputational harm caused by the sexual harassment itself — or by retaliatory harassment — because such harassment implicates... decisions the ministerial exception does not protect.

Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 966 (9th Cir.2004).

Our holdings in Bollard and this case were narrow: (1) In Bollard, the plaintiff did not seek reinstatement or damages based on a failure to reinstate. In this case, we did not allow Elvig a remedy that would have compelled the Church to permit her to seek other ministerial employment, and did not allow damages resulting from Elvig's termination and inability to obtain other ministerial employment. (2) In neither Bollard nor this case did we require the defendant churches to articulate a religious justification for their decisions to hire, fire, promote, or proscribe the duties of ministers. In Bollard, we noted that the church explicitly disavowed any religious justification for the homosexual sexual harassment to which Bollard had been subjected, leaving unaddressed the question of whether sexual harassment based on a religious justification was constitutionally protected. In this case, the church did not assert a religious justification for the sexual harassment to which Elvig claimed she was subjected; it denied that it occurred at all.

Judge Kleinfeld contends that the availability of damages against a church for sexual harassment necessarily interferes with the church's constitutionally protected decision to hire and retain its ministers. He writes,

[T]o prevent lawsuits alleging sexual harassment, churches will fire ministers who they think expose them to risk of damage awards and hire those who they think will not. So the Elvig majority's opinion does indeed impinge on churches' hiring and firing decisions.

Kleinfeld dissent at 799. This argument proves too much. Under Judge Kleinfeld's reasoning, an altar boy's suit against the church for sexual abuse by a minister is constitutionally forbidden. Damages in such suits are likely to be higher than the limited damages available in Title VII sexual harassment suits brought by ministers. In addition, the number of sexual abuse suits brought by parishioners dwarfs the few sexual harassment suits that have been, and are likely to be, brought by ministers. The effect of sexual abuse suits brought by parishioners on the employment practices of the church is thus almost certain to be far greater than the effect of sexual harassment suits by ministers. Yet it is clearly established law that such suits are not constitutionally barred, see, e.g., Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 430-31 (2d Cir.1999); Nutt v. Norwich Roman Catholic Diocese, 921 F.Supp. 66, 72-74 (D.Conn.1995); Moses v. Diocese of Colorado, 863 P.2d 310, 319-21 (Colo.1993), and I do not believe that Judge Kleinfeld would advocate a change in that law.

Judge Kleinfeld contends that the precedents allowing suits seeking to redress sexual abuse by a minister can be distinguished because "criminal and civil law applicable to sexual abuse of a parishioner does not regulate a church's selection, training, and supervision of its own ministers." Kleinfeld dissent at 804. But under his own reasoning, this is not so. If the threat of damage awards in suits arising out of sexual abuse of parishioners is even greater than in Title VII sexual harassment suits (as I believe it is), such suits not only "regulate a church's selection, training, and supervision of its own ministers," to use Judge Kleinfeld's phrase. They "regulate" to an even greater extent than sexual harassment suits. Yet Judge Kleinfeld recognizes that sexual abuse suits are permissible under the First Amendment. So it cannot be that the First Amendment prohibits suits simply because they have the potential to affect (or "regulate") churches' hiring and firing decisions.

The First Amendment does not exempt religious institutions from all statutes that regulate employment. For example, the First Amendment does not exempt religious institutions from laws that regulate the minimum wage or the use of child labor, even though both involve employment relationships. See Employment Div. v. Smith, 494 U.S. 872, 888, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (citing Tony and Susan Alamo Foundation v. Sec'y of Labor, 471 U.S. 290, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985) (minimum wage); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88...