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929
F.2d 360
59 USLW 2635,
55 Fair Empl.Prac.Cas. (BNA) 585, 56 Empl. Prac. Dec. P 40,645
(Cite
as: 929 F.2d 360)
United
States Court of Appeals,
Eighth
Circuit
Rev.
Anne SCHARON, Appellant,
v.
ST.
LUKE'S EPISCOPAL PRESBYTERIAN HOSPITALS, a Corporation,
and The Rev. J.
Edwin
Heathcock, Appellees.
No.
90-2070
Submitted
Jan. 9, 1991
Decided
March 25, 1991
Ordained
priest, who had been employed as chaplain at church-affiliated
hospital, brought age and sex discrimination action against
hospital following her discharge. Hospital's motion for
summary judgment was granted by the United States District
Court for the Eastern District of Missouri, 736 F.Supp.
1018, John F. Nangle, Chief Judge, and priest appealed.
The Court of Appeals, Bowman, Circuit Judge, held that applying
Title VII and the Age Discrimination in Employment Act to
age and sex discrimination claims brought by priest against
church-affiliated hospital would foster "excessive government
entanglement" with religion in violation of First Amendment,
as well as violate free exercise clause of First Amendment.
Affirmed.
West
Headnotes
[1]
Civil Rights k143
78k143
[1]
Civil Rights k169
78k169
[1]
Constitutional Law k84.5(12)
92k84.5(12)
Applying
Title VII and the Age Discrimination in Employment Act to
age and sex discrimination claims brought by ordained priest
against church-affiliated hospital following discharge of
priest from her position as chaplain with hospital would
foster "excessive government entanglement" with religion
in violation of First Amendment, as well as violate free
exercise clause of First Amendment. Age Discrimination in
Employment Act of 1967, § 11 et seq., 29 U.S.C.A. § 630
et seq.; Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A.
§ 2000e et seq.; U.S.C.A. Const.Amend. 1.
[2]
Civil Rights k143
78k143
Title
VII applied to employment relationship between ordained
priest and church-affiliated hospital, which discharged
priest from her position as chaplain for hospital, absent
any prohibition by First Amendment. Civil Rights Act of
1964, § 701 et seq., 42 U.S.C.A. § 2000e et seq.; U.S.C.A.
Const.Amend. 1.
[3]
Constitutional Law k84.5(12)
92k84.5(12)
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 courts
to determine meaning of religious doctrine and canonical
law and to impose secular court's view of whether in the
context of particular case religious doctrine and canonical
law support the decision church authorities have made, which
is precisely the kind of judicial second guessing of decision
making by religious organizations that free exercise clause
forbids. U.S.C.A. Const.Amend. 1.
*360
David
M. Heimos, Clayton, Mo., for appellant.
*361
Robert A. Kaiser, St. Louis, Mo., for appellees.
Before
JOHN R. GIBSON, BOWMAN and WOLLMAN, Circuit Judges.
BOWMAN,
Circuit Judge.
This
is an employment discrimination case that runs headlong
into the Religion Clauses of the First Amendment. The Reverend
Anne Scharon, the plaintiff in this cause, appeals from
the order of the District Court [FN1] granting summary judgment
in favor of the defendants. We affirm.
FN1.
The opinion of the District Court is published as
Scharon v. St. Luke's Episcopal Presbyterian Hosps.,
736 F.Supp. 1018 (E.D.Mo.1990).
I.
The
Reverend Anne Scharon, an ordained Episcopal priest, was
employed by defendant St. Luke's Episcopal Presbyterian
Hospitals as a Chaplain from June 1978 until October 2,
1987. She worked in the Department of Pastoral Care, under
the supervision of defendant The Reverend J. Edwin Heathcock,
also an ordained Episcopal priest, who was appointed the
Director of the department in December 1986.
According
the hospital's job description, one of the "principle [sic]
duties and responsibilities" of a Chaplain is to "[p]rovide[
] a religious ministry of pastoral care, pastoral counseling
... and liturgical services for persons in the hospital."
Appendix at 109. Among the requirements for the position
are that a Chaplain have a Master of Divinity degree from
an accredited seminary and be ordained and endorsed by a
"religious faith group." Id. As Chaplain, Scharon
performed a wide variety of duties, both religious and non-
religious. Besides providing counseling for patients, she
performed, along with other religious tasks, over 350 religious
solemn rites in one nine-month period. Id. at 107.
According
to the defendants, Scharon was fired because Heathcock believed
that she was violating several canonical laws. Heathcock
took this action "with the advice and consent of the Episcopal
Bishop." Appendix at 48. After she was fired, Scharon brought
this case alleging that she was discriminatorily terminated
on the basis of age and sex in violation of the Age Discrimination
in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 630 et
seq. (1988), and Title VII of the Civil Rights Act of
1964 ("Title VII"), 42 U.S.C. § 2000e et seq. (1988). As
to Scharon's ADEA claim, the District Court held that the
ADEA does not apply because there is no clear Congressional
intent to apply the ADEA to chaplain positions in a church-affiliated
hospital. The District Court also held that Scharon's Title
VII claim is precluded, because the resolution of the claim
would require excessive entanglement in religious affairs
in violation of the First Amendment. Scharon appeals both
holdings.
II.
[1][2]
Using the three-part analytical approach developed by the
Supreme Court in N.L.R.B. v. Catholic Bishop of Chicago,
440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), we must
first determine whether the application of the ADEA and
Title VII to the present case "would give rise to serious
constitutional questions." Catholic Bishop, 440 U.S.
at 501, 99 S.Ct. at 1319. Without a doubt, the claims asserted
by Scharon raise such questions. Secondly, we must decide
whether the ADEA and Title VII apply to the case at hand,
because "an Act of Congress ought not be construed to violate
the Constitution if any other possible construction remains
available." Id. at 500, 99 S.Ct. at 1318. For purposes
of our analysis, we proceed on the understanding that both
statutes are applicable. [FN2] Finally, our focus turns
to whether *362 these statutes constitutionally can be applied
to the present facts. Id. at 499, 99 S.Ct. at 1318.
FN2.
It is clear that Title VII applies to the employment
relationship in question here. See Rayburn v. General
Conference of Seventh-Day Adventists, 772 F.2d 1164,
1167 (4th Cir.1985), cert. denied, 478 U.S. 1020,
106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). It is less certain,
however, whether the ADEA applies to this case. Although
the ADEA definition of an employer is virtually identical
to the definition used by Title VII, unlike Title VII
there is no language in the ADEA nor any legislative
history that we are aware of that indicates an intent
by Congress to apply the ADEA to church-affiliated institutions.
If the ADEA does not apply to such employers, as the
District Court held, then Scharon's ADEA claim is foreclosed.
If it does apply to an employer like St. Luke's, then
our approach is the same as our analysis for her Title
VII claim. Our holding today that the First Amendment
forecloses the application of Title VII and the ADEA
to an employment decision by a church-affiliated hospital
concerning a chaplain-employee is limited strictly to
these circumstances. We leave for another day the question
of whether the ADEA definitively applies to such employers
in other contexts.
To
decide this question, we apply another three-part test set
out by the Supreme Court in Lemon v. Kurtzman, 403
U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). For a statute
to withstand scrutiny under the Establishment Clause of
the First Amendment, it first "must have a secular legislative
purpose; second, its principal or primary effect must be
one that neither advances nor inhibits religion ... [and
third] the statute must not foster 'an excessive government
entanglement with religion.' " Lemon, 403 U.S. at
612- 13, 91 S.Ct. at 2111 (citations omitted). It is clear
that both the ADEA and Title VII have a secular purpose,
and that neither has the principal or primary effect of
advancing or inhibiting religion. See Corporation of
the Presiding Bishop of the Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U.S. 327, 335-39, 107 S.Ct. 2862,
2867-70, 97 L.Ed.2d 273 (1987) (holding that Title VII's
exemption for religious organizations discriminating on
the basis of religion meets the Lemon test); Rayburn,
772 F.2d at 1170 n. 6 ("There is no question that Title
VII meets the first two of these tests."). This case thus
turns on whether applying Title VII and the ADEA to the
present situation would require "excessive government entanglement
with religion." We hold that it would.
Scharon
argues that St. Luke's is not a religious institution and
that she was a secular employee, not "clergy." She therefore
claims that the application of Title VII and the ADEA would
not require excessive government entanglement with religion.
Scharon's assertions, however, are untenable. Based on facts
not in dispute, the District Court concluded that St. Luke's
is a church- affiliated hospital, with a " 'substantial
religious character.' " Scharon, 736 F.Supp. at 1019
(quoting Lemon, 403 U.S. at 616, 91 S.Ct. at 2113).
We agree with that conclusion. The hospital's Board of Directors
consists of four church representatives and their unanimously
agreed-upon nominees. Appendix at 53, 55-56. Its Articles
of Association may be amended only with the approval of
the Episcopal Diocese of Missouri of the Protestant Episcopal
Church in the United States of America and the local Presbytery
of the Presbyterian Church (U.S.A.). Id. at 56. Importantly
for our purposes, St. Luke's was acting as a religious institution
as Scharon's employer, and Scharon's position as a Chaplain
at St. Luke's was "clergy." While St. Luke's provides many
secular services (and arguably may be primarily a secular
institution), in its role as Scharon's employer it is without
question a religious organization. As mentioned earlier,
the job description of the Chaplain position at St. Luke's
states that a Chaplain "[p]rovides a religious ministry
of pastoral care, pastoral counseling ... and liturgical
services for persons in the hospital." Appendix at 109.
According to the job description, such work is seventy percent
of a Chaplain's duties. Id. It cannot seriously be
claimed that a church-affiliated hospital providing this
sort of ministry to its patients is not an institution with
"substantial religious character." Lemon, 403 U.S.
at 616, 91 S.Ct. at 2113.
Similarly,
the position of Chaplain at St. Luke's cannot be characterized
as secular. Besides performing the aforementioned duties,
Scharon was required to have been ordained by a "religious
faith group." Appendix at 109. Her supervisor, The Reverend
Heathcock, was an ordained priest. Id. at 47. As
a Chaplain, Scharon performed numerous formal religious
ceremonies. Id. at 107. It is without consequence
that she also may have performed many secular duties. She
was not a secular employee who happened to perform some
religious duties; she was a spiritual employee who also
performed some secular duties. Her *363 position as Chaplain
is primarily a "ministerial" position; the performance of
secular activities in that role does not diminish its religious
nature. Cf. Rayburn, 772 F.2d at 1168 (fact that
a lay minister performs same duties as a pastor does not
diminish the religiosity of the pastor's position).
Scharon
also argues that excessive entanglement can be avoided in
this case because the defendants' claims that religious
issues were the basis for her termination are merely a pretext
for the actual motive behind her dismissal. Therefore, she
asserts, government involvement with religion can be avoided
by focusing solely on the issues of age and sex discrimination.
However, as the Supreme Court said in Catholic Bishop,
440 U.S. at 502, 99 S.Ct. at 1319, "[t]he resolution of
such charges ... will necessarily involve inquiry into the
good faith of the position asserted by the clergy-administrators....
It is not only the conclusions that may be reached ... which
may impinge on rights guaranteed by the Religion Clauses,
but also the very process of inquiry." See also Minker
v. Baltimore Annual Conference of United Methodist Church,
894 F.2d 1354, 1356-57 (D.C.Cir.1990) (In rejecting a minister's
ADEA claim, the court noted that the "determination of 'whose
voice speaks for the church' is per se a religious
matter.... We cannot imagine an area of inquiry less suited
to a temporal court." (citation omitted)); Rayburn,
772 F.2d at 1169 ("the First Amendment protects the act
of a decision rather than the motivation behind it."). To
allow Scharon's case to continue would necessarily lead
to the kind of inquiry into religious matters that the First
Amendment forbids.
[3]
It follows that the decision of the District Court based
on the "excessive entanglement" test of Lemon (an
Establishment Clause-type of analysis) must be affirmed.
In addition, we believe that the Free Exercise Clause of
the First Amendment also prohibits the courts from deciding
cases such as this one. 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 decision 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. See Serbian Eastern Orthodox Diocese for the
United States and Canada v. Milivojevich, 426 U.S. 696,
713, 96 S.Ct. 2372, 2382, 49 L.Ed.2d 151 (1976); Minker,
894 F.2d at 1356-57; Natal v. Christian and Missionary
Alliance, 878 F.2d 1575, 1576- 77 (1st Cir.1989);
Rayburn, 772 F.2d at 1167-69; Kaufmann v. Sheehan,
707 F.2d 355, 358-59 (8th Cir.1983); McClure v. Salvation
Army, 460 F.2d 553, 558-61 (5th Cir.), cert. denied,
409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972). [FN3]
FN3.
We are mindful of the potential for abuse our holding
theoretically may invite; namely, the use of the First
Amendment as a pretextual shield to protect otherwise
prohibited employment decisions. But we think that saving
grace lies in the recognition that courts consistently
have subjected the personnel decisions of various religious
organizations to statutory scrutiny where the duties
of the employees were not of a religious nature.
See Dole v. Shenandoah Baptist Church, 899 F.2d
1389 (4th Cir.), cert. denied, 498 U.S. 846,
111 S.Ct. 131, 112 L.Ed.2d 99 (1990); E.E.O.C. v.
Fremont Christian School, 781 F.2d 1362 (9th Cir.1986);
Volunteers of Am.-Minn.-Bar None Boys Ranch v. N.L.R.B.,
752 F.2d 345 (8th Cir.), cert. denied, 472 U.S.
1028, 105 S.Ct. 3502, 87 L.Ed.2d 633 (1985); E.E.O.C.
v. Pacific Press Publishing Ass'n, 676 F.2d 1272
(9th Cir.1982); E.E.O.C. v. Southwestern Baptist
Theological Seminary, 651 F.2d 277 (5th Cir.1981),
cert. denied, 456 U.S. 905, 102 S.Ct. 1749, 72 L.Ed.2d
161 (1982); E.E.O.C. v. Mississippi College,
626 F.2d 477 (5th Cir.1980), cert. denied, 453
U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981). We
have confidence that courts will continue to consider
these situations on a case-by-case basis, looking in
each case to see whether the plaintiff's employment
discrimination claim can be adjudicated without entangling
the court in matters of religion.
We
affirm the order of the District Court granting defendants'
motion for summary judgment.
Copr.
© West 2002 No Claim to Orig. U.S. Govt. Works
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