FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT 02/17/2000 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 99-10603

________________________ D. C. Docket No. 97-02719-CV-P-W LEE OTIS GELLINGTON, Plaintiff-Appellant,

versus CHRISTIAN METHODIST EPISCOPAL CHURCH, INC., Defendant-Appellee.

________________________ Appeal from the United States District Court for the Northern District of Alabama

_________________________ (February 17, 2000) Before BLACK, Circuit Judge, GODBOLD and FAY, Senior Circuit Judges. BLACK, Circuit Judge:2 Appellant Lee Otis Gellington brought this action against his former employer, Appellee Christian Methodist Episcopal C hurch, Inc., alleging he was retaliated against and constructively discharged in viol ation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S .C. §§ 2000e to 2000e-17. The district court granted summary judgment in favor of Appellee after concluding that the ministerial exception barred Appellant from bringing suit under T itle VII against Appellee. Appellant appeals, presenting the narrow question of whether the ministerial exception survives the Supreme Court’s decision in Employment Division, Dep’t of Human Resources of Oregon v. Smith , 494 U.S. 872, 110 S. Ct. 1595 (1990). We conclude the ministerial exception to Title VII survives the Supreme Court’s holding in Smith , and accordingly affirm the order of the district court. I. BACKGROUND Appellant is an ordained minister of the Christian Methodist Episcopal (CME) Church. CME Church is divided into te n Episcopal districts. Beginning in 1995, Appellant served as a minister in a churchlocated in Mobile, Al abama, which is part of the Fifth Episcopal district. One of Appellant’s co-workers at the Mobile church was Veronica Little, who also was employed as a minister. On more than one occasion, Little confided in Appellant that her immediate supervisor had made sexual advances toward her, and she asked Appellant for guidance on how to handle this3 situation. Appellant advised and aided Little in preparing anofficial complaint to the church elders. Shortly after he aided Littlein her complaint, Appellant was reassigned to a church over 800 miles away from his hom e at a substantial reduction in salary. Appellant states that he could not complywith this reassignm ent and consequently was forced to resign. Appellant brought this action, allegi ng Appellee retaliated against him and constructively discharged him for aiding Little in her sexual harassment complaint. Appellee then filed a motion for summary j udgment. The district court granted the motion because it concluded that the minist erial exception to Title VII, created in McClure v. Salvation Army , 460 F.2d 553 (5th Cir. 1972), barred Appellant from bringing his claim against Appellee. Appellant appeals this order. II. ANALYSIS We review de novo a grant of summary j udgment by the district court, applying the same standards. See Harris v. H & W Contracting Co. , 102 F.3d 516, 518 (11th Cir. 1996). We view the evidence, and all factual inferences that can reasonably be drawn from the evidence, in the light mo st favorable to the nonmoving party. See Stewart v. Happy Herman’s Cheshire Bridge, Inc. , 117 F.3d 1278, 1285 (11th Cir. 1997).1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the fo rmer Fifth Circuit handed down prior to the close of business on September 30, 1981. 4 There is no question that the district court’s grant of summary judgment would have been correct prior to 1990. McClure v. Salvation Army , 460 F.2d 553 (5th Cir. 1972), established that Title VII is not applicable to the employment relationship between a church and its ministers. See id . at 560. 1 In McClure , a minister of the Salvation Army sued the church under T itle VII, alleging she was discriminated against on the basis of sex and discharged because of her complaints regarding this alleged discrimination. See id . at 555. After noting that the First Amendment has built a “wall of separation” between church and state, and that there is a long history of allowing churches to be free from st ate interference in matters of church governance, the Fifth Circuit held that it w ould not apply Title VII to the ministerchurch employment relationship. See id . at 558-560. The court reasoned that applying Title VII to this re lationship “would result in an encroachment by the State into an area of religious freedom which it is forbidden to enter by the principles of the free exercise clause of the First Amendment.” Id . at 560. The court concluded that matters such as “the determin ation of a minister’s salary, his place of assignment, and the duty he is to perform in furtherance of the religious mission of the church” were all functions with which the state could not interfere. Id . at 559.5 Since McClure , many other Circuits also have adopted the ministerial exception to Title VII. See, e.g. , Young v. Northern Illinois Conf. of United Methodist Church , 21 F.3d 184 (7th Cir. 1994) (holding that Free Exercise Clause forbids review of church’s employment decisions involving clergy); Minker v. Baltimore Annual Conf. of the United Methodist Church , 894 F.2d 1354 (D.C. Cir. 1990) (concluding that allowing minister to sue church under ADE A would violate Free Exercise Clause); Natal v. Christian and Missionary Alliance , 878 F.2d 1575 (1st Cir. 1989) (following McClurein concluding that clergyman is barred by First Amendment from suing notfor-profit religious organization for wrongful termination); Rayburn v. General Conf. of Seventh-Day Adventists , 772 F.2d 1164 (4th Cir. 1985) (holding that plaintiff’s Title VII challenge to denial of pastoral appointment was barre d by religion clauses of First Amendment). Appellant argues that although McClurewas the law of this Circuit prior to 1990, the ministerial exception to Title VII created in McClurecannot exist subsequent to the Supreme Court’s decision in Employment Division, Dep’t of Human Resources of Oregon v. Smith , 494 U.S. 872, 110 S. Ct. 1595 (1990). In Smith , Alfred Smith and Galen Black challenge d a determination that their religious use of peyote, which resulted in their dismissal from employment, was “misconduct” disqualifying them from receiving Oregon unemployment compensation benefits. See2 Congress attempted to reinstate the compelling inte rest test with respect to laws of general applicability that would apply to religious practi ces in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq. The Supreme Court, how ever, held that RFRA was unconstitutional as applied to the states because it exceeded the scope of Congress’ power under § 5 of the Fourteenth Amendment. See City of Boerne v. Flores , 521 U.S. 507, 117 S. Ct. 507 (1997). 6 id . at 874, 110 S. Ct. at 1597-98. The claimants argued that Oregon violated the Free Exercise Clause of the First Amendment when it denied them unemployment benefits solely because of their sacramental use of peyote, a controlled substance under Oregon law. See id . The Court held the Free Exercise Clause did not bar Oregon from prohibiting the religious use of peyote, explai ning that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes. . . conduct that his religion prescribes.” Id. at 879, 110 S. Ct. at 1600 (citations and internal quotation marks omitted). The Court also rejected the ar gument that Oregon at least be forced to satisfy the compelling interest test be fore applying a neutral law of general applicability to religion-based conduct. See id . at 885, 110 S. Ct. at 1603. 2 Appellant argues that because Smith held that religious beliefs do not excuse compliance with a generally applicable law, Appellee cannot evade the legal obligations imposed by Title VII simply because it is a religious organization. Appellant contends that becau se Title VII is a neutral law of general applicability, the7 First Amendment does not bar the applicati on of Title VII to Appellee even if its application would burden the free exercise of religion. Two Circuits have concluded the ministerial exception survives Smith . The D.C. Circuit first considered this question in EEOC v. Catholic University of America , 83 F.3d 455 (D.C. Cir. 1996). A Catholic nun brought a Title VII sex discrimination suit against the University after she was denied tenure. See id . at 459. In addressing the plaintiff’s claim, the court noted th at the “Supreme Court has recognized that government action may burden the free exer cise of religion” in two ways: “by interfering with a believer’s ab ility to observe the commands or practices of his faith, and by encroaching on the ability of a churchto manage its internal affairs.” Id . at 460 (citations omitted). The court then noted that the ministerial exception was developed, in part, to protect churches from the second type of government interference. See id . at 462. The court reasoned, however, that Smith focused exclusively on the first prong of the free ex ercise clause, the individual’s ability to observe the practices of his or her religion. See id . at 462. Concluding that Smith therefore was not applicable to the ministerial exception, the court stated “the burden on free exercise that is a ddressed by the ministerial exception is of a fundamentally different character from that at issue in Smith and in the cases cited by the Court in8 support of its holding. . . . [T]he minist erial exception does not present the dangers warned of in Smith .” Id

. The D.C. Circuit also concluded th e Supreme Court’s rejection in Smith of the compelling interest test did not affect th e continuing existence of the ministerial exception. See id . at 462-63. The court noted that although some of the cases applying the ministerial exception cited the compelling interest test, the exception was not based on this test, but rather on a “long lin e of Supreme Court cases that affirm the fundamental right of churches to ‘decide for themselves, free fro m state interference, matters of church government as well as those of faith and doctrine.’” Id . at 462 (quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America , 344 U.S. 94, 116, 73 S. Ct. 143, 154 (1952)). Consequently, the D.C. Circuit held that the rejection of the compelli ng interest test did notalter this “centuryold affirmation of a church’s s overeignty over its own affairs.” Id . at 463. The Fifth Circuit has also held that the ministerial exception to Title VII survives Smith . In Combs v. Central Texas Annual Conf. of the United Methodist Church , 173 F.3d 343 (5th Cir. 1999), the court considered a Title VII sex discrimination claim brought by a female clergy member against her church. See id

. at 345. In concluding that the suit was barred by the ministerial exception, the court agreed with both the reasoning and the conclusion of the D.C. Circuit, noting9 Smith’ s language is clearly directed atthe first strand of free exercise law, where an individual contends that , because of his religious beliefs, he should not be required to conform with generally applicable laws. The concerns raised in Smith are quite different fro m the concerns raised by Reverend Comb’s case, which pertains to interference in internal church management. Id . at 349. The court reasoned that the c onstitutional protection of religious freedom afforded to churches in employment acti ons involving clergy exists even when such actions are not based on issues of c hurch doctrine or ecclesiastical law. See id

. at 350. The court also concluded that this “fundame ntal right of churches to be free from government interference in their internalmanagement and administration” had not been affected by the Smith Court’s refusal to apply the compelling interest test. Id

. We agree with the Fifth and D.C. Circ uits and hold that the ministerial exception created in McClure has not been overruled by the Supreme Court’s decision in Smith . The Smith decision focused on the first type of government infringement on the right of free exercise of religion— infringement on an individual’s ability to observe the practices of his or her re ligion. The second type of government infringement—interference with a church’s ability to select and manage its own clergy—was not at issue in Smith . The Court’s concern in Smith was that if an individual’s legal obligations were contingent upon relig ious beliefs, those beliefs would allow each individual “‘to become a law unto himself.’” Smith , 494 U.S. at 885,10 110 S. Ct at 1603 (quoting Reynolds v. United States , 98 U.S. 145, 167 (1879)). The ministerial exception does not subvert this concern; it was not developed to provide protection to individuals who wish to observe a religious practice that contravenes a generally applicable law. Rather, the exception only continues a long-standing tradition that churches are to be free from government interference in matters of church governance and administration. See, e.g. , Kedroff v. St. Nicholas Cathedral , 344 U.S. 94, 107, 73 S. Ct. 143, 150 (1952) (“Legislation that regulates church administration, the operation of the churches , [or] the appointment clergy. . . prohibits the free exercise of religion”). Also, becau se the ministerial exception is based on this tradition and not on strict scruti ny, the Court’s rejection in Smith of the compelling interest test does not affect the conti nuing vitality of the ministerial exception. We noted in McClure“[t]he 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.” 460 F.2d at 558-559. An attempt by the government to regulate the relationship between a chur ch and its clergy would infringe upon the church’s right to be the sole governing body of its ecclesiastical rules and religious doctrine. Furthermore, applying Title VII to the employment relationship between a church and its clergy would involve “e xcessive government entanglement with11 religion” as prohibited by the Establishment Clause of the First Amendment. See Lemon v. Kurtzman , 403 U.S. 602, 613, 91 S. Ct. 2105, 2111 (1971). Investigation by a government entity into a church’s empl oyment of its clergy would almost always entail excessive government entanglement into the internal management of the church. A church’s view on whether an individual is suited for a particular clergy position cannot be replaced by the courts’ without entangling the government “in questions of religious doctrine, polity, and practice.” Jones v. Wolf , 443 U.S. 595, 603, 99 S. Ct. 3020, 3025 (1979). The Establishment Clause thus also mandates that churches retain exclusive control over strictly ecclesiastical matters. III. CONCLUSION For the foregoing reasons, we find that the Free Exercise and Establishment Clauses of the First Amendment prohibit a church from being sued under Title VII by its clergy. The district court therefore properly granted Appellee’s motion for summary judgment. AFFIRMED.