Lee Otis GELLINGTON, Plaintiff-Appellant,

v. CHRISTIAN METHODIST EPISCOPAL CHURCH, INC., Defendant-Appellee.
No. 99-10603. United States Court of Appeals, Eleventh Circuit.

Feb. 17, 2000. Appeal from the United States District Court for the Northern District of Alabama. (No. 997-02719-CV-PW), Sam C. Pointer, Jr., Judge. Before BLACK, Circuit Judge, and GODB OLD and FAY, Senior Circuit Judges. BLACK, Circuit Judge: Appellant Lee Otis Gellington brought this action ag ainst his former employer, Appellee Christian Methodist Episcopal Church, Inc., alleging he was retaliated against and constructively discharged in violation 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 Title VII agai nst Appellee. Appellant appeals, presenting the narrow question of whether the ministerial excep tion 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, 108 L.Ed.2d 876 (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 Chris tian Methodist Episcopal (CME) Church. CME Church is divided into ten Episcopal districts. Beginning in1995, Appellant served as a minister in a church located in Mobile, Alabama, which is part of the Fifth Episc opal district. One of Appellant's co-workers at the Mobile church was Veronica Little, who also was employ ed as a minister. On more than one occasion, Little confided in Appellant that her immediate supervisor had made sexual advances toward her, and she asked1 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 former Fifth Circuit handed down prior to the close of business on September 30, 1981. 

### 2 Appellant for guidance on how to handle this situation. Appellant advised and aided Little in preparing an official complaint to the church elders. Shortly af ter he aided Little in 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 comply with this reassignment and consequently was forced to resign. Appellant brought this action, a lleging Appellee retaliated against him and constructively discharged him for aiding Little in her sexual harassment comp laint. Appellee then filed a motion for summary judgment. The district court granted the motion becau se it concluded that the ministerial exception to Title VII, created in McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972), barre d Appellant from bringing his claim against Appellee. Appellant appeals this order.
II. ANALYSIS We review de novo a grant of summary judgment 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 most favorable to the nonmoving party. See Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997). 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 Title V II, 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 separ ation" 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

### 3 Fifth Circuit held that it would not apply Title VII to the minister-church employment relationship. See id. at 558-560. The court reasoned that applying Title VII to this relationship "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 determination of a minister's salary, his place of assignm ent, and the duty he is to perform in furtherance of the religious mission of the church" were all func tions with which the state could not interfere. Id. at 559. 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 United Methodist Church, 894 F.2d 1354 (D.C.Cir.1990) (concluding that allowing minister to sue church under ADEA 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 not-for-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 barred 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, 108 L.Ed.2d 876 (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. See 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 sacram ental use of peyote, a controlled substance under Oregon law. See id. The Court held the Free Exercise Clause did not bar Oregon from prohibiting the2 Congress attempted to reinstate the compelling interest test with respect to laws of general applicability that would apply to religious practices in the Relig ious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb et seq. The Supreme Court, however, 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. 2157, 138 L.Ed.2d 624 (1997). 

### 4 religious use of peyote, explaining 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 argument that Oregon at least be forced to satisfy the compelling interest test before applying a neutral la w 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 le gal obligations imposed by Title VII simply because it is a religious organization. Appellant contends that because Title VII is a neutral law of general applicability, the First Amendment does not bar the application 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 that the "Supreme Court has recognized that government action may burden the free exercise of religi on" in two ways: "by interfering with a believer's ability to observe the commands or practices of his fa ith, and by encroaching on the ability of a church to manage its internal affairs." Id. at 460 (citations omitted). The court then noted that the ministerial exception was developed, in part, to protect churches fro m the second type of government interference. See id. at 462. The court reasoned, however, that Smith focused exclusively on the firs t prong of the free exercise clause, the individual's ability to observe the practices of his or her religion. See id. at 462. Concluding that Smith

### 5 therefore was not applicable to the ministerial excep tion, the court stated "the burden on free exercise that is addressed by the ministerial exception is of a fundamentally different character from that at issue in Smith and in the cases cited by the Court in support of its holding.... [T]he ministerial exception does not present the dangers warned of in Smith. " Id. The D.C. Circuit also concluded the Supreme Court's rejection in Smith of the compelling interest test did not affect the 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 line of Supreme Court cases that affirm the fundamental right of churches to 'decide for themsel ves, free from 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, 97 L.Ed. 120 (1952)). Consequently, the D.C. Circuit held that the rejecti on of the compelling interest test did not alter this "century-old affirmation of a church's sovereignty 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 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, noting Smith' s language is clearly directed at the 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 from the concerns raised by Reverend Comb's case, which pertains to interference in internal church management. Id. at 349. The court reasoned that the constitutional protection of religious freedom afforded to churches in employment actions involving clergy exists even when such actions are not based on issues of church doctrine or ecclesiastical law. See id. at 350. The court also concluded that this "fundamental right of

### 6 churches to be free from government interference in th eir internal management 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. Circuits 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 religion. 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 religi ous beliefs, those beliefs would allow each individual " 'to become a law unto himself.' " Smith, 494 U.S. at 885, 110 S.Ct. at 1603 (quoting Reynolds v. United States, 98 U.S. (8 Otto) 145, 167, 25 L.Ed. 244 (1879)). The ministerial exception does not subvert this concern; it was not de veloped to provide protecti on to individuals who wish to observe a religious practice that contravenes a ge nerally 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, 97 L.Ed. 120 (1952) ("Legislation that re gulates church administration, the operation of the churches, [or] the appointment clergy ... prohibits the fr ee exercise of religion"). Also, because the ministerial exception is based on this tradition and not on strict scrutiny, the Court's rejection in Smith of the compelling interest test does not affect the continuing 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 bywhich the church seeks to fulfill its purpose." 460 F.2d at 558-559. An attempt by the government to regulate th e relationship between a church and its clergy would infringe upon the church's right to be the sole governi ng body of its ecclesiastical rules and religious doctrine. Furthermore, applying Title VII to the employment relationship between a church and its clergy would involve "excessive government entanglement with religion" as prohibited by the Establishment Clause

### 7 of the First Amendment. See Lemon v. Kurtzman, 403 U.S. 602, 613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971). Investigation by a government entity into a church's employment 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 cl ergy 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, 61 L.Ed.2d 775 (1979). Th e 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 bei ng sued under T itle VII by its clergy. The district court therefore properly granted Appellee's motion for summary judgment.
AFFIRMED.