United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed On: September 17, 2020

No. 18-1063

DUQUESNE UNIVERSITY OF THE HOLY SPIRIT,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITED STEEL, PAPER AND FORESTRY, RUBBER,

MANUFACTURING, ALLIED-INDUSTRIAL AND SERVICE

WORKERS INTERNATIONAL UNION, AFL-CIO-CLC,

INTERVENOR

Consolidated with 18-1078

On Petition for Review and Cross-Application 

for Enforcement of an Order of

 the National Labor Relations Board

On Petition for Rehearing En Banc
2

Before: SRINIVASAN, Chief Judge; HENDERSON, ROGERS,

TATEL, GARLAND, GRIFFITH**, MILLETT, PILLARD*, WILKINS,

KATSAS, RAO AND WALKER***, Circuit Judges.

O R D E R

Upon consideration of the petition of intervenor for

rehearing en banc, the responses thereto, and the absence of a

request by any member of the court for a vote, it is

ORDERED that the petition be denied.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY: /s/

Daniel J. Reidy

Deputy Clerk

* A statement by Circuit Judge Pillard, concurring in the denial

of rehearing en banc, is attached.

** Circuit Judge Griffith was a member of the panel that

decided this case but retired prior to the disposition of the

petition.

*** Circuit Judge Walker did not participate in this matter.
PILLARD, Circuit Judge, concurring in the denial of 

rehearing en banc: I continue to believe that, under our 

precedent, this case was wrongly decided for the reasons stated 

in my dissent. The majority abrogates Pacific Lutheran 

University, 361 N.L.R.B. 1404 (2014), without even 

acknowledging the extraordinary deference that decision paid 

to religious schools. The whole point of the NLRB’s Pacific 

Lutheran analysis was to studiously avoid examination of the 

faculty members’ actual religious duties by looking to whether 

a religious school itself “holds out” faculty members as playing 

an identified role in its religion. See Duquesne Univ. of the 

Holy Spirit v. NLRB, 947 F.3d 824, 843-44 (D.C. Cir. 2020) 

(Pillard, J., dissenting). Like the analysis this court fashioned 

in Carroll College, Inc. v. NLRB, 558 F.3d 568 (D.C. Cir. 

2009), and University of Great Falls v. NLRB, 278 F.3d 1335 

(D.C. Cir. 2002), the Board’s approach in Pacific Lutheran

stopped short of looking behind the openly stated positions of 

the schools regarding their own religious practice. In other 

words, the NLRB went out of its way to demonstrate the 

respect for religious schools that the First Amendment’s 

Religion Clauses require. Yet the majority concludes that this 

doctrine “impermissibly intrudes into religious matters” as 

reason to hold Duquesne’s adjuncts unprotected by the baseline 

workplace rights Congress afforded in the NLRA. Duquesne, 

947 F.3d at 834. 

If anything, Pacific Lutheran’s “holding out” approach

went beyond what the First Amendment requires. There is 

strong reason to believe that a school’s public representations, 

taken alone, cannot justify carving out textually rootless

exemptions from religiously neutral, generally applicable 

workplace laws. The panel majority assumes that “examining 

whether faculty members play religious or non-religious 

roles . . . ‘would only risk infringing upon the guarantees of the 

First Amendment Religion Clauses.’” Id. at 833 (quoting 

Carroll Coll., 558 F.3d at 572). But the Supreme Court has 

repeatedly held in the parallel context of the “ministerial 
2

exception” to employment discrimination laws that the EEOC 

and the courts may look to employees’ actual religious roles—

not just the titles or descriptions proffered, or “held out,” by 

religious employers—without running afoul of the Religion 

Clauses. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 

140 S. Ct. 2049, 2063-65 (2020); Hosanna-Tabor Evangelical 

Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 192-94 

(2012); id. at 198 (Alito, J., concurring). The panel never 

explains why the Board’s Pacific Lutheran analysis threatened 

religious exercise even though it was substantially more 

deferential to religious schools than the Supreme Court’s 

ministerial exception.

The panel defends its holding as following ineluctably

from NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 

(1979), and this court’s ensuing decisions in Great Falls and 

Carroll College. We are, of course, bound by Catholic Bishop, 

as we are by our own decisions unless and until we convene en 

banc to revisit them. But, for reasons that I have already 

explained, see Duquesne, 947 F.3d at 839-43, this case is 

materially different from each of those, and, fairly read, Pacific 

Lutheran honored all the precedents the majority invokes to the 

contrary. On its own terms, then, the majority gets it wrong. 

Id. 

More fundamentally, our precedent extending Catholic 

Bishop is unmoored and increasingly untenable. We should 

take the opportunity in an appropriate case to reconsider it. En 

banc review in this case would give us an opportunity to 

reverse the majority’s erroneous holding. But because no party 

asked us to revisit Great Falls and Carroll College—the cases 

on which the majority’s holding builds—en banc review is not 

now the right vehicle to correct our wrong turn.
3

Looking ahead, two points bear emphasis. First, Catholic 

Bishop rests on an outmoded form of constitutional avoidance. 

Even as we respect it as binding precedent, we should not 

extend its reach beyond what the decision requires. To the 

extent that we have done so not only in this case, but in Carroll 

College and Great Falls, the decisions may need to be 

rethought. Cf. Allegheny Def. Project v. FERC, 964 F.3d 1, 17-

18 (D.C. Cir. 2020) (en banc) (holding departure from circuit 

precedent justified in part because it was “grounded in a mode 

of statutory construction that ha[d] been foreclosed by the 

Supreme Court”). Second, constitutional avoidance is 

inapplicable once the constitutional difficulty said to be 

avoided has been surmounted, as has occurred regarding the 

ostensible entanglement problem that motivated our adoption 

of Great Falls’ “holding out” test in the first place.

The canon of constitutional avoidance is “a tool for 

choosing between competing plausible interpretations of a 

provision” that “‘has no application’ in the interpretation of an 

unambiguous statute.” McFadden v. United States, 576 U.S. 

186, 197 (2015) (quoting Warger v. Shauers, 574 U.S. 40, 50 

(2014)). The Supreme Court in Catholic Bishop identified no 

ambiguity in the NLRA’s “very broad terms.” 440 U.S. at 504. 

Five years later, the Court described the breadth of the NLRA’s 

definition of “employee” as “striking”—“subject only to 

certain specifically enumerated exceptions,” none of which 

relate to religious schools. Sure-Tan, Inc v. NLRB, 467 U.S. 

883, 891 (1984). The Catholic Bishop Court, however, located 

ambiguity in the legislative history; it concluded that the 

absence of express congressional committee or floor discussion 

of collective bargaining in connection with “church-operated 

schools” justified constitutional avoidance, the text’s plain 

scope notwithstanding. See 440 U.S. at 504-06. That inverted 

method of statutory interpretation—bypassing clear text and 
4

looking to silence in the legislative history as ground for a 

judicial carveout—was abandoned a generation ago. 

In fact, in a case decided just six years after Catholic 

Bishop, a unanimous Court got the analysis right: faced with a 

claim by a religious foundation that it was not subject to the 

Fair Labor Standards Act, the Court first held that the statute’s 

“exceedingly broad” definition of “employees” extended to the 

foundation’s associates and only then turned to address the 

constitutional question directly. Tony & Susan Alamo Found. 

v. Sec’y of Labor, 471 U.S. 290, 295-306 (1985). Today, 

“silence in the legislative history, ‘no matter how “clanging,”’ 

cannot defeat the better reading of the text and statutory 

context” or create ambiguity where there is none. Encino 

Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1143 (2018) 

(quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495 n.13 

(1985)). There is no statutory basis whatsoever on which to 

conclude that Congress intended to exempt parochial-school

teachers from the NLRA. The doctrine of constitutional 

avoidance does not empower courts to drop ordinary principles 

of statutory interpretation to cut our own holes in enacted laws 

whenever a serious constitutional issue appears on the horizon.

To be sure, Catholic Bishop’s holding is binding on this 

court whether or not we convene en banc to reconsider our own 

cases extending it. The Supreme Court has made clear that 

“[p]rinciples of stare decisis . . . demand respect for precedent 

whether judicial methods of interpretation change or stay the 

same.” CBOCS W., Inc. v. Humphries, 553 U.S. 442, 456

(2008). And the Court’s recent ministerial exception decisions 

suggest Catholic Bishop’s core holding—that parochial high 

school teachers are exempt from NLRA coverage—remains on 

firm foundation substantively. In Hosanna-Tabor and Our 

Lady of Guadalupe, the Court required that school teachers

who serve an important “role in conveying [a religious 
5

school’s] message and carrying out its mission” be exempted 

from federal employment discrimination laws. Our Lady of 

Guadalupe, 140 S. Ct. at 2063 (quoting Hosanna-Tabor, 565 

U.S. at 192). Much of the reasoning in these cases is consistent 

with the logic behind Catholic Bishop. Compare, e.g., id. at 

2055 (exempting decisions about “the selection and 

supervision of the teachers” responsible for “education and 

formation of students” in religious schools to avoid 

“undermin[ing] the independence of religious institutions in a 

way that the First Amendment does not tolerate”), with 

Catholic Bishop, 440 U.S. at 496 (citing concern that Board 

jurisdiction would “impinge upon the freedom of church 

authorities to shape and direct teaching in accord with the 

requirements of their religion”). The Supreme Court’s 

conclusion in Catholic Bishop would appear to stand even 

absent the screen of constitutional avoidance.

But respect for the binding force of Catholic Bishop does 

not demand the “holding out” approach we devised as further 

avoidance. We cannot kick the can down the road indefinitely, 

never actually deciding whether and how the NLRA’s 

application to distinct categories of employees is limited by the 

Religion Clauses. Catholic Bishop’s stature as binding 

precedent as to high school teachers responsible for guiding 

students’ religious education does not license us to expand its 

holding to cut out from the NLRA additional categories of 

“employers” or “employees” based on unfocused Religious 

Clause concerns brought to bear via miscast constitutionalavoidance reasoning. See Catholic Bishop, 440 U.S. at 502 

(noting that “we are not compelled to determine whether the 

entanglement is excessive as we would were we considering 

the constitutional issue”). The Supreme Court has never 

applied Catholic Bishop to institutions of higher education nor 

has any majority decision for an appellate court other than ours. 

Cf. Universidad Cent. de Bayamon v. NLRB, 793 F.2d 383, 401 
6

(1st Cir. 1985) (equally divided en banc) (Breyer, J.) 

(describing the question whether an “institution of higher 

education falls within the strictures of Catholic Bishop” as “an 

important, likely recurring, question that calls for Supreme 

Court guidance”). It is not immediately clear why an NLRA

carveout designed for teachers at parochial schools should 

apply to part-time, non-religious, college or university adjunct

instructors—or what would then stop its further extension to 

information technology support staff, cafeteria workers, or 

campus security, or, for that matter, to hundreds of thousands 

of other employees at religious hospitals or other religiously

governed organizations. The constitutional rationale for 

excluding from the NLRA teachers with a role in transmitting 

the faith is not obviously implicated in the case of teachers

lacking such function. It is even less clear why other 

employees the NLRA’s plain text reaches but who lack any 

demonstrated role in the employer’s faith mission might also 

be excepted. As I have explained, neither adjuncts, nor the 

wide range of non-teaching staff that religious educational 

institutions employ, should simply be equated with the 

parochial-school teachers in Catholic Bishop. See Duquesne, 

947 F.3d at 840-42 (Pillard, J., dissenting); cf. id. at 836 

(majority opinion) (suggesting the question whether NLRB 

“may . . . assert jurisdiction over some non-faculty employees”

remains open). Faced with a religious university’s claim that 

the choice by a distinct category of its adjuncts to be 

represented by a union interfered with its religious exercise, 

entangling the NLRB in its religious workings, we should have 

identified and decided the constitutional question, as the Court

itself did in the parallel context of Hosanna-Tabor and Our 

Lady of Guadalupe. When we skirt such questions on 

constitutional avoidance grounds, we carve out ill-defined 

exemptions from duly enacted statutes, likely exceeding what 

the Constitution itself compels. 
7

Addressing the constitutional question head-on, the 

Court’s ministerial exception cases show that we took a wrong

turn in Great Falls and Carroll College. Just two months ago, 

in Our Lady of Guadalupe, the Court signaled that there is no 

constitutional impediment to distinguishing employees who 

are the heart of the religious mission from those who are not. 

The Court rejected any “rigid test” for determining who falls

within the ministerial exception, requiring that courts instead

“take all relevant circumstances into account and . . . determine 

whether each particular position implicated the fundamental 

purpose of the exception.” 140 S. Ct. at 2067. Only two 

Justices endorsed the view that courts ought to just outright 

“defer to religious organizations’ good-faith claims that a 

certain employee’s position is ‘ministerial.’” Id. at 2069-70 

(Thomas, J., concurring). By contrast, while recognizing the 

fact that the schools at issue “expressly saw [their employees]

as playing a vital part in carrying out the mission of the church” 

as “important,” the majority also weighed “abundant record 

evidence that [the employees at issue] performed vital religious 

duties.” Id. at 2066 (majority opinion). In so doing, it 

suggested that inquiry into an employee’s religious role does 

not present any First Amendment problem. Cf. id. at 2071 

(Thomas, J., concurring) (“[C]oncerns of entanglement have 

not prevented the Court from weighing in on the theological 

questions of which positions qualify as ‘ministerial.’”). These 

decisions call into question the reasoning that underlies Great 

Falls and Carroll College—cases that seem to hold any inquiry 

behind a religious school’s public representations to be 

necessarily out of bounds. See Carroll Coll., 558 F.3d at 573; 

Great Falls, 278 F.3d at 1344. Such a hands-off approach risks

“deny[ing] protection to workers the [NLRA] was designed to 

reach” for no good First Amendment reason. Holly Farms 

Corp. v. NLRB, 517 U.S. 392, 399 (1996).
8

Duquesne sidesteps the teaching of the ministerial 

exception cases, emphasizing that the NLRA and 

antidiscrimination statutes constitute distinct bodies of law. 

See Resp. to Pet. for Reh’g at 14-16. But the question is 

whether their differences are constitutionally relevant. 

Duquesne characterizes antidiscrimination law as 

“retrospective” in an effort to distinguish the ministerial 

exception’s “more searching review.” Id. at 15. 

Antidiscrimination statutes are “necessarily focused on the 

individual bringing suit,” says Duquesne, so unlike the NLRA, 

which facilitates “bargaining over a variety of as-yet-unknown 

conditions of employment.” Id. But reality reflects no such 

neat dichotomy. Both bodies of law have retrospective force: 

the initial adjudicating agency may differ (EEOC versus the 

NLRB), but under either regime employees may present claims 

that their workplace rights have been violated. Both bodies of 

law also operate prospectively, projecting compliance 

obligations on employers that shape their ongoing interactions 

with employees.

The suggestion that the NLRA imposes intrusive, 

continuous duties whereas antidiscrimination law does not thus 

overlooks the effects of the latter on employers’ hiring, 

recruitment, and evaluation. See, e.g., Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 417 (1975) (describing Title VII’s 

“primary objective” as “prophylactic”). To the extent that there 

is a difference, the NLRA arguably entails less substantive

imposition because it is limited to process: it sets the rules that 

govern negotiations toward agreed-upon contracts but, unlike 

antidiscrimination law, does not impose substantive terms of 

employment top-down. In the absence of any reason why 

merely negotiating with their employees’ chosen 

representatives interferes with religious schools’ constitutional 

prerogatives, the Religion Clauses must afford the same leeway 
9

to operation of the NLRA as they do federal employment

discrimination laws.

In any event, these questions are worth examining in a 

future case. The NLRB’s recent decision to “adopt” the 

majority’s understanding of Great Falls’ test and disavow 

jurisdiction over all teachers, including adjunct faculty “of selfidentified religious schools,” Bethany Coll., 369 N.L.R.B. No. 

98, 2020 WL 3127965 (June 10, 2020), does not eliminate our 

obligation to resolve the extent to which the Religion Clauses 

curtail the application of the NLRA to teachers at religious 

schools. Indeed, insofar as “refusal by the agency to institute 

proceedings [is] based solely on the belief that it lacks 

jurisdiction” under Great Falls and Catholic Bishop, the 

NLRB’s decision will command our review. Heckler v. 

Chaney, 470 U.S. 821, 833 n.4 (1985). Given that cases raising 

these issues are already waiting in the wings, see Duquesne,

947 F.3d at 832 n.1 (noting our orders in Manhattan College v. 

NLRB, No. 18-1113 (D.C. Cir.June 26, 2018), and Saint Xavier 

University v. NLRB, No. 18-1076 (D.C. Cir. Sept. 19, 2018), 

holding both petitions for review in abeyance pending 

Duquesne’s resolution), I expect there will soon be an 

opportunity to reconsider our precedent expanding on Catholic 

Bishop. 

When that opportunity does arrive, we must be 

exceedingly careful to ensure that any course correction we 

undertake does not “depriv[e] [a] church of control over the 

selection of those who will personify its beliefs.” HosannaTabor, 565 U.S. at 188. As the Supreme Court has reminded 

us, employment matters have the potential to “affect[] the faith 

and mission of [a] church itself.” Id. at 190. These 

constitutionally prized attributes of religious practice deserve 

our continued respect. Such respect need not come at the 

expense of workplace rights of those employees who do not 
10

personify a religious school’s beliefs, nor does it depend on 

conferring the broadest exemption at institutions whose 

religious character might readily accommodate labor 

protections alongside their faith. I trust that we can discern the 

extent to which the First Amendment requires religious schools 

be shielded from NLRA obligations in a manner appreciative 

of the autonomy they maintain over their mission. See Our 

Lady of Guadalupe, 140 S. Ct. at 2060. Because those 

important issues have not been squarely raised before us in this 

case, I concur in denial of the petition for rehearing en banc.