F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

B I B I J I I N D E R J I T K A U R P U R I ; R A N B I R S I N G H B H A I ; K

A M A L J I T K A U R K O H L I ; K

U L B I R S I

N G H P U R I , Plaintiffs-Appellants

,

v.

S O P U R K H K A U R K H A L S A ; P E R A I M K A U R K H A L S A ; S I R

I R A M K A U R K H A L S A ; S I R

I K A R M K A U R K H A L S A ; K

A R T A R S I N G H K H A L S A ; K

A R A M S I N G H K H A L S A ; R O Y L A M B E R T ; S C H W A B E , W I L L I A M S O N & W Y A T T , an Oreg on Professional Corporation; L E W

I S M. H O R O W I T Z ; L A N E P O W E L L PC, an Oreg on Professional Corporation; U

N T O I N F I N I T Y , L L C, an Oreg on L imited L iability Company ; S I R

I S I N G H S A H I B C O R

P O R A T I O N , an Oreg o n non-profit corporation; D O E S , 1 throug h 5, D efendants-Appellees

. No. 13-36024

D.C. No. 3:10-cv-01532-MO

OPI NI ONP U R I V

. K H A L S A 2

A ppeal from the United States District Court

for the District of Oreg on Michael W . Mosman, Chief District J udg e, Presiding

Arg ued and Submitted March 10, 2016

Portland, Oreg on

F iled J a nuary 6, 2017

B e fore: Ray

mond C. F isher, Marsha S. B erz on and Paul J . W atford, Circuit J udg es.

O pinion by

J udg e F isher

SUMMARY *

F irst Am endm ent

The panel vacated the district court’s dismissal

, a s foreclosed by the F ree Ex ercise and Establishment Clauses o f the F irst A mendment, of c laims concerning a dispute over the control of two nonprofit entities associated with the Sikh Dharma relig ious community

.

The panel held, based only on the p leading s, that the claims were not barred by the F irst Amendment’s ministerial

e x ception. The panel held that the e c clesiastical abstentio n doctrine did not apply b e c a use the claims could be resolved by application of neutral principles of l a w w ithout

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P U R I V

. K H A L S A 3

encroaching on relig ious org aniz ations’ r ig ht of a utonomy in matters of relig ious doctrine and administration.

The panel addressed additional issues in a concurrently filed memorandum disposition.

COUNSEL

Surjit P. Soni (arg

ued) a nd L eo E. L undberg

, J r., The S oni L aw F irm, Pasadena, California; R. Scott Palmer, Watkinson L aird Rubenstein B aldwin & B urg e ss P.C., Eug ene, Oreg on; for Plaintiffs-Appellants.

Paul J .C. Southwick (arg

ued) and J ohn F

. McGrory
, J r., D avis W r ig ht Tremaine L L P, Portland, Oreg o n, f or DefendantsAppellees Unto I nfinity

, L L C; Siri Sing h Sahib Corporation; Kartar S ing h Khalsa; Karam Sing h Khalsa; Peraim Kaur Khalsa; Siri Karm Kaur Khalsa; and Sopurkh Kaur Khalsa.

J anet M. Schroer (arg

u ed), Portland, Oreg on; Ralph E. Cromwell, J r., B y

r n es Keller Cromwell L L P, Seattle, W a s h i n g t o n ; f

o r D e f e n d a n t s

- A p p e l l a n t s S c h w a b e , W illiamson & W y att.

Susan E. W atts (arg

ued), Portland, Oreg on; J o s e ph C. Arellano, K ennedy W atts Arellano L L P, Portland, Oreg on, for Defendant s

- A p p ellees L ane Powell PC and L ewis M. Horowitz

.

L eslie S. J ohnson, Kent & J o h n son L L P, Portland, Oreg on, for Defendant-Appellee Siri Ram Kaur Khalsa.P U R I V

. K H A L S A 4

Stephen C. Voorhees and Candice R. B roock

, K i l mer Voorhees & L a u rick PC, Portland, Oreg on, for D efendantAppellee Roy

L ambert.

Susan B ower and Rebecca M. Auten, Assistant Attorney s General ; Anna M. J oy ce, Solicitor General; Ellen F

. R o s e n b l u m , Attorney General; Oreg on Department of Ju s t i c e , Salem, Oreg on; for Amicus Curiae State of Oreg on.

OP INION

F I SHER, Circuit J udg e :

This appeal concerns a dis p u t e over the control of two nonprofit entities associated with the Sikh Dharma relig ious community

. The plaintiffs, the widow and children o f the late spiritual leader of the Sikh Dharma faith, b r o u g ht c laims
ag ainst v arious individuals and entities alle ging several interlocking conspiracies and fraudulent activiti es desig n ed
t o ex clude them from c e rtain manag ement positions a n d t o convert millions of dollars in assets fr o m entities under the individual defendants’ control for personal b enef i t

. The district court d ismissed the plaintiffs’ complaint, concluding their cla ims were foreclosed by the F ree Ex e rcise a nd Establishment Clauses of the F irst Amendment. 1 W e vacate

1 T h is op in io n ad d resses o n ly th e d ef en d an ts’ First A m en d m en t d ef en se to th e p lain tif

f s’ d irect claim s. T h e p lain tif f s also b ro u g h t sev eral d eriv ativ e c laim s o n b eh alf o f Siri Sin g h Sah ib Co rp o ratio n an d Un to In f in ity

, L L C. In a co n cu rren tly f iled m em o ran d u m d isp o sitio n , w e af f irm d ism issal o f

th o se d eriv ativ e claim s. T h e m em o ran d u m d isp o sitio n also ad d resses th e p arties’ rem ain in g arg u m en t s reg ard in g t h e p lain tif

f s’ d i rect claim s.P U R I V

. K H A L S A 5

the district court’s dismissal b ecause we conclude, based only on the pleading s, that the plaintiffs’ c laims are not barred by the F irst A mendment’s ministerial ex ception and can be

re s olved by a

pplication of neutral principles of law without encroaching on relig ious org aniz ations’ rig ht of a utonomy in matters of relig ious doctrine and administration.

BACK G ROUND

This case comes to us on the pleading s, so we accept the plaintiffs’ factual alleg ations as true. Our review is limited to the facts alleg ed in the plaintiffs’ f irst amended complaint (“complaint” ) a n d the attached ex hibits incorporated b y reference therein. See Elvig v. Calvin Presbyterian Church

, 375 F .3d 951, 953 (9th Cir. 2004).

Yo g i Harbhajan Sing h Khalsa, also known as Yog i B hajan, was a spiritual leader and entre p r e neur who spread Sikhism and Kundalini Yog a in the United States beg inning in the 1960s. I n 1971, he was desig n ated t h e Siri Sing h Sahib, the Sikh leader for the W estern Hemisp h e r e

. Yog i B hajan founded or inspired the creation of numer o u s forprofit and n onprofit e ntities that were held and controlled b y Siri Sing h Sahib of Sikh Dharma (SSSSD), a Cal i fornia corporation sole of which h e was the only sh a r eholder. 2 Three of these entities are particularly relevant to this case: Siri Sing h Sahib Corporation, U n t o I n finity

, L L C, and Sikh Dharma I nternational.

2 Un d er Cal i fo rn i a law

, a co rp o ratio n so l e is a co rp o ratio n “ f o rm ed . . . b y th e b ish op , ch ief

p riest, p resid in g eld er, o r o th er p resid in g o f f icer

o f an y relig i o u s d en o m in atio n , so ciety

, o r ch u rch

, f o r th e p u r p o s e of ad m i n isterin g an d m an ag in g th e a ff airs, p ro p erty , an d tem

p o ralities th ereo f .” Cal. Co rp . Co d e § 1 0 0 0 2

.P U R I V

. K H A L S A 6

Yog i B hajan formed Siri Sing h S a h i b C o r p o r a t ion (SSSC)

as an Oreg o n nonprofit relig ious c o r p oration “to a ct as the

successor leg al org aniz a tion to [ SSSSD] ” following his death

or incapacity

, “and in such capacity to conduct a n d /or facilitate relig ious, charitable and educational activities.” SSSC would become “the g uardian of those a ssets o f [ SSSSD] which are c onvey ed to it,” and would replace SSSSD as t h e s o l e member of U nto I nfinity

, L L C. Yog i B hajan was the sole director, or “trustee,” of SS S C a t i ts founding

, but the SS S C a

rticles of incorporation p rovided that following his death or incapacity

, “the directors shall b e those
persons desig nated in writing by [Yog i B hajan]

, ” with such

w r itten desig nation to be “ delivered to, and held i n confidence by

, the attorney for the c o rporation.” The articles also set out certain relig ious criteria for directors:

No individual will be elig ible to be desig nated

or elected a s a trustee unless he or she

. . . is currently qualified as a minister of Sikh Dharma;

. . . is an active participant in Dasvandh [ t i t hing ] ;

. . . [ and] is then living

, and p articipatin g in the affairs of the Sikh community

, in a m anner c onsistent with the
teac h ing s a

nd v alues of [ Yog i B hajan]

, a nd accepts the directiv e s and proclamations o f [ Yog i B hajan] as Siri Sing h Sahib of Sikh Dharma, as such teaching s, values, directives,

an d p r oclamations are understood by the Siri Sikdar Sahib/a of Sikh Dharma . . . .

Yog i B hajan f

o r m ed Unto I nfinity

, L L C (UI ), as an Oreg on nonprofit limit e d l i a bility company to serve as a member or shareholder of various for-profit and nonp r ofit entities. Under UI ’s operating ag r e e ment, SSSSD was to beP U R I V

. K H A L S A 7

the sole member o f UI until Yog i B hajan’s death o r incapacity

, at which time SSSC would assume that role, a nd UI w ould become the s o l e member of Sikh Dharma I nternational. Acting

by virtue of his ex clusive control over SSSSD, Y og i B hajan appointed himself a nd four others to the UI board of manag e r s, wh ich w ould “ex ercise full a nd

ex c lusive c ontrol over the affairs of the Company
, subject to restrictions on that authority under the O reg on L imited L iability Company Act.” The UI o perating ag ree m e n t set forth the same religi o u s e l ig ibility criteria f or its board o f
manag ers as the SSSC articles established for its directors.

Yog i B hajan formed Sikh Dharma I nternational (SDI ) a s

a California nonprofit relig ious corporation “ org aniz ed to advance the relig ion o f Sikh Dharma and as an association o f relig ious org aniz ations teaching principles o f Sikh D harma, including by ordination of ministers of divinity and operation of places of worship.” SDI ’ s sole member is UI

.
Yog i B h aja n died in October 2004. He was survived b y the plaintiffs in this case – his wife, B ibiji I nderjit Kaur Puri (“ Bibiji”), and their three children, Ranbir Sing h B hai (“Ranbir”), Kamaljit K au r Kohli a nd Kulbir Sing h Puri. They alleg e the g eneral c ounsel and five bo a r d m embers o f UI and SSSC conspired to e x clude them from participating in the manag ement of those org aniz ations.

F i r s t, the plaintiffs assert they have been improperly

ex c luded from the SSSC board of trustees. They a lleg e Yog i B hajan, acting pursuant to the SSSC articles of incorporation, desig nated all four of the m t o become board members fol l o w i n g his death or incapacity and furnished the written desig nation to defendant R o y L ambert, attorney for SSSC. L ambert alleg edly f

ailed to produce the desig nation followingP U R I V

. K H A L S A 8

Yog i B h ajan’s death, and the d efendants then held board meeting s wit h o u t providing notice to the plaintiffs a nd without the plaintiffs’ attendance, in violatio n o f SSSC by laws and Oreg on law. Second, the plaintiffs alleg e the UI board of manag ers added Bi b iji as a manag e r of UI o n J uly 26, 2004, prior to Yog i B hajan’s d eath, by unanimous written consent, but the defendants failed to i n f o rm her of her election a

nd denied h er the rig hts and duties of board membership.

I n supp o r t of their claims, the plaintiffs point to v arious emails and corporate documents, attached to their complaint and incorporated by

reference, that they alleg e confirm their alleg ations o f wrong ful ex clusion from the SSSC and UI boards. On J uly 26, 2 004, all five members of the UI b o a r d of manag ers apparently a dopted a r esolutio n increasing the membership of the board to six and electing B ibiji “to fill the

new position as manag er o f the Corpo r a tion.” I n October 2004, defendant Sopurkh Kaur Khalsa ( “S o p u r k h ”), president of the UI b oard of manag e r s, left a voi c email messag e for plaintiff Ranbir ex plaining that she and L ambert were “proceeding on g etting y ou g uy s on the B oard” of SSSC a nd UI

. Sopurkh followed u p b y e m a il with a “Memo o f Understanding ” acknowledg ing that B ibiji was “already o n [ the] board” of UI a

nd confirming that all four plaintiffs would be added to the S S S C and UI boards. I n September 2005, Sopurkh apparently chang ed course, ex p laini n g to Bi b i j i t h a t t h e p r ev i o u s Memo of Understandi n g “inadvertently omitted a stat e m en t reg a rding the corporate involvement of y ou and y our children,” and the “[ m] e mo was not intended to indicate either current b oard membership for
y o u a nd y our children o r ag reement that y o u and y o u r

c h i ldren w ould u ltimately be elected to the listed b oards.” Sopurkh furnished a “revised Memo of Understanding whichP U R I V

. K H A L S A 9

corrects the prior error,” clarify ing that the memo constituted her “ underst a n d ing of the f amily ’s request to be included in the various boards in our o rg aniz ation.” The revised document nonetheless reiterated B ibiji w as “ already on [ the] board” of UI

. Two months later, when L ambert sent an email listing “the b oard of [SSSC] a s d esig nated by [ Yog i B hajan]

, ” two of the plaintiffs’ names appeared on the list.

The p laintiffs’ complaint seeks a j u dg ment that B ibiji “has been a Manag er of UI from and after J uly 26, 2004” a nd that all four plaintiffs “be appointed to the B oard o f Trustees of SSSC

. ” They a lso seek damag es for lost compensation they would h ave received for their services o n t h e b oards. After the de f

e n dants moved to dismiss for failure to state a

c laim upon which relief can be g r a n ted, see F ed. R. Ci v

. P

. 12(b)(6), the plaintiffs moved for l e a v e to file a second amended co mplaint. The district court g ranted the defendants’ motions to dismiss, denied the mo t ion for leave
to amend and entered a judg ment of dismissal with prejudice. The plaintiffs timely appealed.

STANDARD OF REVIEW

W e review de novo a district court’s dismissal for failure
to state a claim u p o n w h i c h relief can be g ranted. See Daniels-Hall v. Nat’l Educ. Ass’n
, 629 F .3d 9 9 2
, 9 9 8 (9th Cir. 2 010). W e accept as true all well-pleaded alleg a tions o f material fact and construe them in the lig ht most favorable to the plaintif

f s

. S e e id. W e also review de novo a district court’s leg al determinations, including constitutional ruling s, and its determinations o n mix ed q uestions of law and fact that implicate c onstitutional rig hts. S ee Berger v. City of Seattle

, 569 F .3d 1029, 1035 (9th Cir. 2009) (en banc).P U R I V

. K H A L S A 10

D ISCUSSION

The question befo r e u s is w hether the F ree Ex ercise a nd Establishment Clauses of the F irst Amendment preclude a civil court from g ranting r e lief on the plaintiffs’ claims, which seek declaratory a n d injunctive relief in the form o f placement on the manag ement boards of org aniz ations associated with the Sikh Dharma relig ious community a s w ell

as damag es for lost compensatio n d ue to their previous

ex c lusion from those boards. The defe n d a n t s raise the “ministerial ex c eption” a s a n affirmative defense, a nd contend even if that ex ception does not apply , the plaintiffs’

c l a i m s still c annot b e decided b y a civil court because the requested relief would infring e o n the sphere of a utonomy constitutionally

g uaranteed to relig ious org aniz ations.

I.

A.

The Supreme Court has long recog niz ed r e lig ious
org aniz ations’ broad rig ht to co n t r o l the selection of their

own relig ious leaders. See, e.g. , Gonzalez v. Roman Catholic Archbishop of Manila

, 280 U.S. 1, 16 (1929). Recently

, the C o u rt “confirm[ ed] that it is impermissible for th e g ove r n m e nt to contradict a church’s determination of w ho

can act as its minis t ers,” and formally recog n iz e d “a ‘ministerial ex ception,’ g r ounded in the F irst A m endment, that preclude s application of [ employ ment discrimination laws] to claims c o n c erning the employ ment relationship between a relig ious institution and its ministers.” HosannaTabor Evangelical Lutheran Church & Sch. v

. E E OC
, 132 S. Ct. 6 94, 7 04–05 (2012). This ministerial ex ception “ensures that the au t h ority to select and control w ho will minister toP U R I V

. K H A L S A 11

the faithful

– a matter ‘strictly ecclesiastical’ – is the church’s alone.” Id. at 709 (citation omitted) ( quoting Kedroff v

. Saint Nicholas Cathedral o

f Russian Orthodox Church in N. Am.
, 344 U.S. 94, 119 (1952)). The Court ex plained:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a

mere e mploy

ment decision. Such action interferes with the internal g overnance of the church, depriving the church of control over the selection of those w ho will perso nify its beliefs. B y imp o s ing a

n unwanted minister,
t he state infring es the F r ee Ex ercise Clau s e, which protects a relig ious g rou p’s rig ht to shape its own fai t h a

nd mission throug h its appointments. According the state the power to determine which individuals will minister
to the faithful also violates the Establishment C l a u s e , w h i c h p r o h i b i t s g o v e r n m e n t involvement in such ecclesiastical decisions.

Id. at 706.

Althoug h the Supreme Court has not articulated the scope

o f t h e m i n i s t e r i a l e x c e p t i o n b e y o n d e m p l o y m e n t discrimination claims, see id. at 7 10, our court has framed the

ex c e ption as applicable “to any state law cause of action that would o th e r wise imping e on the church’s prerog ative to choose i t s ministers or to ex e rcise its relig ious beliefs in the
contex t of e mploy ing its ministers.” Bollard v. Cal. Province of the Soc’y of Jesus , 196 F .3d 940, 950 (9th Cir. 1999); see also W erf t v

. Desert Sw. Annual Conference of United Methodist Church , 377 F .3d 1099, 1100 n.1 (9th Cir. 2004).P U R I V

. K H A L S A 12

Thus, any claim “with a

n associated remedy

. . . [ that] would require the church to employ [ a minister] ” would “interfer[ e]

w i t h the c hurch’s constitutionally protected choice of i t s ministers,” and thereby “would run afoul of the F ree Ex ercise Clause.” Bollard

, 196 F .3d at 9 50. The ministerial ex c eption also bars relief for “consequences o f protected empl oy ment decisions,” such as damag es f or “lost or reduced pay , ” because such relief “ would necessarily trench on the Church’s protected ministerial decisions.” Elvig

, 375 F .3d at 966; see also H osanna -T a b o r , 132 S. Ct. at 709 (“An award o f such relief would operate as a penalty on the Church for
t e r m i n ating an unwanted minister, and would be no le s s prohibited by the F irst A mendment than an order overturning the termination.”).

B.

The ministerial ex ception is an affirmative defense. See Hosana-Tabor

, 132 S. Ct. at 709 n.4. I t applies to claims that imping e on protected employ ment decisions reg a

rding “a relig ious org aniz ation and its ministers

, ” E l v ig
, 375 F .3d at 955 ( quoting Bollard

, 196 F .3d at 9 45), and when applicable, it flatly prohibits courts from “[ r] equiring a church to accept

or retain an unwanted minister, or punishin g a church for failing to do so,” Hosanna-Tabor , 132 S. Ct. at 706.

As an affirmative d efense, the ministerial ex ception can

serve as the b asis for dismissing a c o mplaint at the pleading s stag e u nder Rule 12(b)(6) only w hen t h e el ements of the defense a ppear on the face o

f t h e co m p laint

. See Jones v

. Bock

, 549 U.S. 199, 215 ( 2 007) (citing 5B Charles Alan W r ig ht & Arthur R. Miller, Federal Practice and P rocedure § 1 357 (3d ed. 2004)); R ivera v. P e ri & Sons Farms, I n c

. , 735 F .3d 892, 902 (9th Cir. 2013). Therefore, if it is apparentP U R I V

. K H A L S A 13

o n t he face of the plaintiffs’ complaint that the defendan t s ’

r e f usal to seat the plaintiffs on the disputed boards is a “protected employ

ment decision[ ] ” under the ministerial

ex c e ption, see Elvig

, 375 F .3d a t 9 63
, t h e p laintiffs’ c laims

are a l tog ether barred, and a civil court c an neither order the defendants to employ the plaintiffs nor awa rd damag e s ag ainst the defendants for past or future failure to do so.

The defendants arg ue the complaint should be dismissed

u n der the ministerial ex c eption because it seeks relief f o r a protected emplo y

ment decision made by a relig ious
org aniz ation concerning its ministers. Specif i c a lly

, they contend the co m plaint a lleg es both that SSSC and UI a re “relig ious o r g aniz ations” covered by the ex ception, and that the d isputed board positions are “ministerial” because t h e y

can be occupied only b y individuals meeting c ertain “relig ious requirements,” including t h a t they be Sikh ministers. The plaintiffs do not d is p ute SSSC and U I a re relig ious o rg aniz ations within the meaning of the ministerial

ex c e ption, b u t they arg ue the board positions a re not ministerial because, o n the face of t h e complaint, it is not apparent their duties involve convey ing the church’s messag e or carry ing out its relig ious mission. 3

As a threshold matter, i t i s n o t clear that the ministerial

ex c e ption c o u l d e ver apply to the type o f positions at issue here. This is a dispute over seats on the boards of corporate entities that are apparently affiliated with a c h u rch, but a re

3 T h e plain tif

f s also arg u e th e relig io u s req u irem en ts f o r SSSC b o ard

m em b ersh ip d o n o t ap p ly

to th em , rely in g o n an ex h ib it attach ed to th eir d i s allo w ed seco n d am en ded co m p lain t. W e d o n o t reach th is arg u m en t b ecau se, ev en assu

m in g th e plain tif

f s a r e su b j ect to th e relig io u s req u irem en ts, w e co n clu d e th e m in isterial ex cep tio n d oes n ot ap p ly

.P U R I V

. K H A L S A 14

not themselves c h u r c hes. Thus, the positions a re far afield from th e “ p aradig matic application of the ministerial

ex c e ption” to o rdained ministers employ ed by a church, such

as Roman Catholic priests wh o “minister to the faithful” a s that term is g enerally understood. See Alcazar v. Corp. o f the Catholic Archbishop of

Seattle

, 627 F .3d 1288, 1291 (9th Cir. 2010) ( en b a

nc). Neither the Supreme Court nor thi s co u r t has a pplied the ministerial ex ception to the g overning boards of church-affiliated org aniz ations, l e t a l one to those whose responsibilities are larg ely secular, as the complaint alleg e s here. There is, therefore, r eason to question w h e t h e r the

ex c e ption is even potentially implicated.

At the same time, n e ither the Supreme Court nor this
court has ever ex pres s l y l i mited the ministerial ex ception to particular ty

p e s of positions, and both courts have ex pressly d eclined to adopt any brig ht line rule d e fining the scope o f the ex c eption. As the Supreme Court has made c lear, there is no “rig id formula for deciding when an employ ee qualifies

as a minister” within t h e meaning of the ministerial

ex c e ption. Hosanna-Tabor

, 132 S. Ct. at 707. Our e n banc
court echoed that view in Alcazar

, where we “dec l i ned to adopt any p a

rticular test” for “deter m i ning whether a particular church e mploy ee

. . . should b e considered a ‘minister’” for F irst Amendment purposes. 627 F .3d at 1291. Certain lang uag e in Ho s anna-Tabor

, moreover, sug g ests a fairly broad applica t ion of the ex ception. The Court

ex plained “[ t] he ministerial ex c eption is not limited to the h e ad o f a r elig ious cong reg ation,” a nd insulates a relig i o u s org aniz ation’s “selection of those who will p erso n i f y its beliefs.” Hosanna-Tabor

, 132 S. Ct. at 706–07. The Court further sug g ested the e x ception ex tends to “the Church’s ch o i c e of its hierarchy

” when that choice implicates “a relig ious g roup’s r ig ht to shape its own faith and mission.”P U R I V

. K H A L S A 15

Hosanna-Tabor

, 132 S. Ct. at 705–06. W e t oo have
sug g ested a potentially broad reac h for the ex ception. See Bollard

, 196 F .3d at 947 (referring to the m i n i sterial

ex c e ption as protecting “ a ch urch’s freedom to choose its representatives”). I n p r actice, there m ay b e little difference b etween deciding whether a defendant has established the affirmative defense of the ministerial ex ception with respect
to a hiring decision for a particular e mploy ment position in a particular case and deciding ca t egorically whether the

ex c e ption applies to hiring decisions for an e ntire ty pe o r class of employ

ment positions, such as g overnin g b o ards o f church-affiliated org aniz ations. As ex plained below, the former a naly sis considers, among other thing s, “the nature o f the r elig ious functions p erformed” and “[ t] he amount of time

an employ ee spends on particular activities.” HosannaTabor

, 132 S. Ct. at 709. Any categ orical analy sis likely would turn on very

similar inquiries.

Ultimately

, we do not attempt to r esolv e the question o f whether the ministerial ex c eption ever applies to the ty pe o f positions at issue here. W e need not categ orically define the
scope of the ministerial ex ception, becau s e e v e n if it is potentially

available in a case such as this one, it is clear the defendants here have f

ailed t o m a ke out the d efense at this juncture. F o r the purpose of the f ollowing analy sis, therefore,

we o nly ass u m e w ithout deciding that the ex ception is potentially implicated with respect to the ty pe of positions in dispute in the case before us.

The Supreme Court has provided some g uidance on the circumstances that mig ht qu a l i f y an employ ee as a minister wit h i n t h e meaning of the ministerial e x ception. F irst, an employ e e is more likely to be a minister if a relig ious
org aniz ation holds t he employ ee out as a minister b yP U R I V

. K H A L S A 16

bestowing a formal relig ious title. See id. at 707. Althoug h

an ecclesiastical title “by itself, does not automatically ensure coverag e, the fact that a n employ ee has been or d a i ned o r commissioned as a minister is surely relevant.” I d. at 708. A second c onsideration is the “substance reflected in that title,” such as “a sig nificant deg r ee of relig ious training followed b y

a formal process of co m m issioning .” I d. at 707–08. T h ird,

an employ ee whos e “job d u ties reflect[ ] a role in convey ing the Church’s messag e and carry ing out its mission” is likely
to be covered by the ex ception, even if the employ ee devotes only a small portion of the workday to strictly relig ious duties and spends the balance of her time performing secular functions. Id. F inally

, an e mploy ee who holds herself o ut a s

a relig ious leader is more likely to be consid e r e d a minister. Id.

B a sed on the pleading s here, some ci r c u m s tances weig h i n favor of considering the board positions ministerial. The complaint alleg es that a “mission and purpose” o f SSSC a nd UI is “to benefit the Sikh Dharma community and to advance and p romote [ Yog i B hajan’s] teaching s,” and it is “surely relevant” t h at their b oard members must be ordained min i s t ers of Sikh Dharma and must meet certain other relig ious criteria. See id. at 708.

B u t, based on the f

ace of the c omplaint, a number of other circumstances weig h ag a inst apply ing the minist e r i al

ex c e ption. F irst, and most importantly

, the pleading s do not alleg e the board members have a n y e cclesiastical duties o r privileg es. I n a s s essing the responsibilities attendant to the board p ositions, it is r elevant that the entities involved are not themselves churches, but rather corporate parents of a church. SSSC’s primary responsibility appears t o b e holding title to church property , and UI
, in addition to being the sole memberP U R I V

. K H A L S A 17

of SDI – i.e., the direct corporate parent of the Sikh Dharma church – owns and controls a portfolio of fo r

- p r ofit a nd nonprofit corporations, including a major security contractor and a prominent tea man u fa c t urer. Althoug h the complaint alleg es the b oard members have “fiduciary duties to U I and S S S C t o h old assets in trust for the benefit o f the Sikh Dharma c ommunity

, ” it is not clear on the face of th e complaint that these d

uties are “relig ious” or “reflect[ ] a role in convey

ing the Church’s messa ge an d carry ing o ut its mission.” Id.

No r elig ious duties comparable to those found relevant in Hosanna-Tabor appear i n the pleading s here. I n HosannaTabor

, th e S upreme Court observed the plaintiff was “ex p r e ssly charg ed

. . . w ith ‘lead[ ing ] o thers toward Christian maturity ’ and ‘teach[ ing ] faithfully the W ord o f God, the Sacred Scr i p tures, in its truth and purity and as set forth in all the sy

mbolical books of the Evang elical L utheran Church.’” Id. “I n f

ulfilling these responsibilities, [ the plaintiff] taug ht her students relig ion[ ,]

. . . led them in
pray er[ ,]

. . . took her students to a s c h o o l

- w ide chapel service, and

. . . took her turn leading it, choosing the liturg y , selecting the h y

mns, and delivering a short messag e based on

verses from the B ible.” Id. T h e Court concluded, “[ a ] s a

source of re l i g ious instruction, [ the plaintiff] performed an impor t a n t r ole in transmitting the L u theran faith to the nex t g enerat i o n

. ” I

d. B y contrast, none of the alleg a tions here support a similar conclusion.

Althoug h the Court has cauti o n e d ag ainst rely ing too heavily on “the relative amount of time

. . . spent p erforming relig ious f

unctions,” it has recog niz ed that “the nature of the relig ious f

unctions performed” and “[ t] he amount of time an employ e e spends on p articular activities” are relevantP U R I V

. K H A L S A 18

considerations. I

d. at 709. W e, too, have “look[ ed] to the function of the position

. . . in d eciding whether the ministerial ex c eption applies,” Elvig

, 375 F .3d at 958, a nd have held, for instance, that the e x ception does not apply “to lay e mploy ees of a relig ious institution if they are not serving the function of ministers,” Bollard

, 196 F .3d at 947

. The pleading s do not alleg e the board members “serv[ e] the function of ministers.” I

d.

Second, the pleading s do n o t a l l eg e the board members

are held out a s relig ious leaders, either by thei r r e spective employ e rs or by the board members themselves. A board membe r o f UI or SSSC has the job title of “manag er” o r “trustee,” respectively

, and the pleading s do not sug g est these apparently secular titles hold a ny ec c l e s iastical sig nificance in the Sikh Dharma faith. Althoug h a board member must be “qualified as a minister o f Sikh Dha rma,” and a lthoug h we have h eld “[ t] he paradig matic application of the min i s t e rial

ex c e ption is to the employ ment o f an or d a i ned minister,” Alcazar

, 627 F .3d at 1291, this para d i g m applies to employ ment by a chu r ch

, a s a minister

. An e mploy ee’s
status as an ordained minister, standing alone, d o e s not trig g er the ministerial ex ception w hen tha t individual is

e m p l o y e d in a secular capacity b y an entity other than a church. Cf. id. at 1292 (“[ T] he ministerial ex ception may not apply to a seminarian who o btains e mploy ment with a c hurch outside the scope of his seminary training .”).

UI and SS S C are not churches, a nd althoug h their board members must be independently qualified a s Sikh ministers, they are not employ ed or held out by the org aniz at i ons as

m inisters. Nor is there any indication the board m e m b e rs hold themselves out a s relig ious leaders. These factors weig h

a gainst viewing the board members as “representatives ” o fP U R I V

. K H A L S A 19

t h e c h u r c h or as being “ close to the heart of the church. ” Alcazar

, 6 27 F. 3d at 1291 (quoting Bollard

, 196 F .3d at 946–47).

F inally

, the pleading s d o not show the board positions a re relig ious in substance, whether by requiring “sig nificant relig ious training

, ” b y sig nify ing ecclesiastical merit, o r

o t herwise. H

osanna-Tabor

, 132 S. Ct. a t 7 07–0 8

. I n Hosanna-Tabor

, the Court g ave substantial w eig ht to the six
y ears o f rig o rous relig ious t r a ining required to become a called teacher, encompassing “colleg e-level courses in

s u b j e c t s including biblical interpretation, church d o c t r i n e , a n d the ministry of the L

utheran teacher.” Id. at 707. T h e Court also observed that a teacher could receive her call “only upon election b y the cong reg ation, w hich recog niz ed God’s call to her to teach.” I

d. A lthoug h it is possible that carry ing o u t the disputed board positions here involves similarly substant ial relig ious training and r ecog nition, the record before us does
not reveal what is entailed in becoming “q u a l i fied as a minister of Sikh Dharma” and “ a ccept[ ing ] the directives a nd proclamations of [ Yog i B hajan]

. . . as such teaching s, values, and d irectives are understood by t h e S i ri Sikdar Sahib/a o f Sikh Dharma,” nor does the record es t a b l ish any functional connection b e t w e e n the duties o f a board member and the relig iou s criteria for selection. Therefore, in construing the alleg ations of material fact in the lig ht most favorable to the plainti ff s , see Daniels-Hall

, 6 29 F .3d at 998, we do not

assume the board positions are substantively relig ious on this motion to dismiss.

Absent a

ny alleg ation that board m e mbers have

e c clesiastical duties or are held o ut to the commun i t y a s relig ious leaders, and with scant pleading s on the relig ious requirements for the positions, w e agr ee with the plaintiffsP U R I V

. K H A L S A 20

t h a t it is not apparent on the face of the complaint that t h e disputed board positions are “ministerial.” W hereas the ministerial ex ception ty

pically applies to thos e w ho a re employ e d by a church to mini s t e r to the faithful, this case appears to concern board members w ho, in that capacity

, a re neither employ ed by a church nor e mploy ed to minister to the faithful. W e do n ot foreclose the d efendants from ultimately establishing that the ministerial ex c eptio n applies, but the factual alleg ations in the c o mplaint are too far removed from the core of the ex ception for u s to conclude at this stag e of the proceeding s that the ex clusion of the plaintiffs from the board positions is a “protected e mploy ment decision” falling within the ministerial ex ception affirmative defense.

II.

Given the defendants cannot at this p oint rely on the ministerial ex ception to bar the plaintiffs’ claims, w e n e x t consider w hether o ther principles of th e F ree Ex ercise a nd E s t ablishment Clauses nonetheless preclude the courts’ involvement in the internal affairs of UI and S S S C under what we have previously termed the “doctrine o f ecclesiastical a

bstention.” Paul v. W

atchtower Bible & Tract Soc’y of N.Y

., Inc.
, 8 19 F

. 2 d 8 7 5
, 8 78 n.1 (9th Cir. 1987). The plaintiffs do not dispute U I and SSSC are relig ious
org aniz ation s p r o tected by the relig ion clauses of the F irst Amendment, but they c ontend the d i s trict court can resolve this case without encroaching on that protection.

A.

L ong before it f

ormally recog n i z ed a ministerial

e xc e p tion, the Supreme Court developed a doctrine, g rounded orig inally in common law but later in the F irst Amendment,P U R I V

. K H A L S A 21

“limiting the role of civil courts in the resolution of relig ious controversies that incidentally a f fect civil rig hts.” Serbian E. Orthodox D iocese for U.S. & Can. v. Milivojevich

, 426 U.S. 696, 710 (1976). U nde r t h i s doctrine of ecclesiastical abstention, “a State may adopt any one of various a pproaches for settling c hurch

. . . d isputes so long as it inv o l v es no consideration of doctrinal matters.” Jones v. W olf , 443 U.S. 595, 6 02 (1979) (quoting Md. & Va. E ldership of Churches of God v. Church o

f God at Sharpsburg, Inc. , 396 U.S. 367, 368 (1970) (B rennan, J
., conc u rr i n g)). The Supreme Court has recog n iz ed two principal approaches to deci d i ng c hurch disputes without “jeopardiz [ ing ] values protected by the F irst Amend m e nt.” Presbyterian Church in U .S. v. Mary Elizabeth Blue Hu ll Mem’l Presbyterian Church

, 393 U.S. 440, 449 (1969).

The first, derived from W atson v. J

o n e s , 80 U.S. (13 Wall.) 679 (1872), a

n d its prog eny , is simply to “accept[ ] the decision of the established decision-m a k i n g body o f the relig ious o r g aniz a tion.” Maktab Tarighe Oveyssi Shah Maghsoudi, Inc. v. Kianfar

, 1 7 9 F .3d 124 4, 1248 (9th Cir. 1999).

[ W ] here resolution o f the d isputes c an not be made without ex tensive inquiry by civil courts into relig ious law and polity

, the First a nd F ourteenth Amendments manda te that civil
courts shall n ot disturb the dec i s ions of the hig hest ecclesiastical tribunal within a c hurch

. . . b ut must accept such decisions as binding

o n them, in their application to the relig iou s issues of doctrine or polity before them.P U R I V

. K H A L S A 22

Milivojevich

, 426 U .S. a t 709. B ut, recog niz ing that deference can sometimes lead to entang lement of civil courts in ecclesiastical issues and that some church disputes can be resolved by application of solely secular leg al rules, the Court has also articulated an altern a t i v e t o the W atson a pproach it has termed the “neutral p r i nciples of law” approach. See Jones , 443 U.S. at 602, 605.

1.

The Court first considered judicial intervention in c hurch disputes in W

a tson , when it was a s ked to resolve w hich o f
two factions rig htfully controlled the proper ty of a local Presby terian c hurch. See 80 U.S. ( 13 W all.) at 681. Ruling

on common law g r ounds, t h e C ourt concluded “a b road a nd sound view of the relations of chur ch a n d state u nder our sy stem of laws” requires civil c ourt s t o defer to the d eterminations of a church’s hig hest ecclesiastical a uthority on “questions of discipline, or of faith, or ecclesiastical rule, custom, or law.” Id. at 727.

The Court later applied the W atson rule to an individual’s claim o f entitlement to a chaplainc y i n the Roman Catholic Church. See G onzalez

, 280 U.S. at 1 0–11. Althoug h the plaintiff was e ntitled to the position under the terms of a will establishing the chap l a incy

, the archbishop had d eclined to appoint the plaintiff because he lacked the qualifications for th e p o s i tion as prescribed by canon law. Id. at 17–18. The Court ex plained:

B e cause the appointment is a c anonical act, it is the function of the church a uthorities to determine what the essential qualifications o f

a chaplain a

re and whether the c a n d idateP U R I V

. K H A L S A 23

p o s s esses them. I n the absence of fraud, collusion, or arbitrariness, the decisions of the
proper church tribunals o n matters purely ecclesiastical, althoug h affecting civ il rig hts,

are accepted in litig ation before the secular
courts as conclusive, because the parties in interest ma d e them so b y contract o r otherwise.

Id. at 16.

The Supreme Court subsequently adopted the h olding s o f W atson and Gonzalez

as a constitutional rule insofar as they pertained to the “ [ f] reedom t o s e lect the clerg y ,” ex plaining that a church’s freedom to do so, “where n o improper methods of choice are proven,

. . . must now be said to have federal constitutional protection as a part of the free ex ercise of relig io n aga inst state interference.” Kedroff

, 344 U.S. at 116; see also id. at 116 n.23 (quoting Gonzalez

, 2 8 0 U.S. at 16–17). Under this principle of noninterference, ex tended to

cover judicial action in Kreshik v

. Saint Nicholas Cathedral

, 363 U .S. 190, 191 (1960) (per cur i a m )

, civil courts may not “[ b] y fiat

. . . displace[ ] one church adm i n istrator with another” and thereby “ p a s s[ ] the control of matters strictly ecclesiastical from one church authority to another.” Kedroff

, 344 U .S. at 119. Doing so w ould “intrude[ ] for the benefit o f

one seg ment o f a church the p o w er of the state into the forbidden area of relig ious f reedom contrary to the principles of the F irst Amendment.” Id.

The Supreme Court’s early church dispute cases embraced “a spirit of freedom for relig ious org aniz ations, an independence f

rom secular control or manipulation – in short, power to decide for themselves, free from state interference,P U R I V

. K H A L S A 24

m a t t er s of church g overnment as well a s those of f aith a n d doctrine.” Id. at 116. This deferential doctrine r e c og niz e s that “F irst Amendment values are plainly jeopardiz ed when church [disputes are] made to turn on the resolution by civil
courts of c ontroversies over relig ious doctrine and practice.” Presbyterian Church , 393 U.S. at 449.

This does not mean, howe v er , that civil courts have no role in disputes involving relig ious org aniz ations. Unlike the ministerial ex ception, which completely bars judicial inquiry in to p rotected employ

ment decisions, the ecclesiastical abstention doctrine is a qualified limitat i o n, requiring only that courts decide disputes involving r elig ious org aniz ations “without resolving underly ing c ontroversies o ver relig ious doctrine.” Kianfar

, 179 F .3d at 1248 (quoting Presbyt e r ian Church , 393 U.S. at 448).

2.

The Court introduced the n eutral-principles app r o ach in the contex t of a p roperty dispute between two local churches that soug ht to w ithdraw from the national Presby terian Church in the United S t a t es

. See Presbyterian Church

, 393 U.S. at 4 41–43. Presbyterian Church held that Georg ia’s departure-from-doctrine rule, an al t ernative to the W atson approach never endorsed by the Court but nonetheless followed by some states, “require[ d ] the civil courts to eng ag e in the f orbidden process o f interpreting a nd weig hing c hurch doctrine” and was therefore u nconst i t u t ional. Id. at 4 51. I n

so h o lding

, the Court r ecog n iz ed “the F irst Ame ndment severely circumscribes the role that civil courts may play in resolving church property disputes.” Id. a t 449. B ut the Court continued:P U R I V

. K H A L S A 25

I t is obvious, however, that n o t every civil
court decision as to property claime d by a relig ious org aniz ation je o pardiz es values protected by the F irst A mendment. Civil

cou r t s do not inhibit free ex e r cise of relig ion

m er ely by opening their doors to disputes involvi n g church property

. And there a re neutral principles of law, developed for use in all property disputes, w hich c an be applied without ‘establishing ’ churches t o which property is awarded.

Id.

A y ear later, in Maryland & Virginia Eldership

, the Court approved the Maryland h ig h c o urt’s use of the neutralprinciples a

pproach to resolve a c hurch property dispute b e t w e e n a r e g i o n a l c h u rc h a n d t w o s ec e s s i o n i s t cong reg ations. See 396 U.S. at 367–68 ( p e r c u riam). The Maryland Court of Appeals “relied upon p r o v i sions of state statutory law g overning the holding o f p r o p erty by relig ious corporations, upon lang uag e in the deeds convey ing the properties in question to the local church corporations, upon the terms of t h e charters of the corporations, and upon provisions in the constitution of the General E ldership pertinent to the owne r s h ip and c ontrol of church property

. ” Id. at 3 6 7 (footnote omitte d ) (c iting 2 54 A.2d 162 (Md. 1969)). The Court rejected the petitioners’ a rg ument that this application o f neutral state law principles “ dep r i ved the General E ldership of p roperty in violation o f t he F irst Amendment” and dismissed the appeal for want of a sub s t antial federal question, because “the Mary land court’s resolution of the dispute involved n o inquiry into relig ious doctrine.” Id. at 367–68.P U R I V

. K H A L S A 26

I n a concurrence to the per c u r i a m opinion in Maryland & Virginia Eldership later drawn on b y a maj o r i t y of the Court in Jones v. W

olf

, see 443 U .S. at 6 02–03, J u stice B rennan ex plained, “ a State may adopt any one of v a rious approaches for settling church property d isputes so long a s it involves no considerat i o n o f doctrinal matters, whether the ritual and liturg y of worship or the tenets of faith.” Md. & Va. E ldership

, 396 U.S. at 3 6 8 ( B rennan, J
., concurring ). “Thus the States may adopt the approach of W atson v. Jones
, and enforce the property decisions mad e” by a church’s hig hest ecclesiastical authority

. Id. at 368–6 9 ( c itation omitted) (citing W

atson , 80 U .S. (13 W all.) at 722, 724). B ut

“ the use of the W

a tson a p proach is consonant with the
p r o h ibitions of the F irst Amendment only if the appropria t e church g overning body c an be determined without the resolution of doctrinal q u e s tions and without ex tensive inquiry into relig ious policy .” Id. at 370. Alternative l y , “‘[ n] e utral principles of law, developed for use in all property disputes,’ provide another means for resolving litig ation over relig ious property .” Id. (citation omitted) (quoting Presbyterian Church

, 393 U.S. at 449). F or ex ample, when “the identity of the g overning bo d y o r b odies that ex ercise
g eneral authority within a c h u r c h is a matter of substantial controversy ,” courts can avoid becoming imperm issibly entang led in that e cclesiastical d i spute by “determin[ ing ] ownership by study ing deeds, rev e r t e r clauses, and g eneral state corporation laws.” Id. at 369–70.

I n Jones
, the Court definitively held that “civil courts, consistent with the F irst and F ourteenth Amendments to the Constitution, may r esolve [ church property ] dispute[ s] on the basis o f ‘neutral princi p l e s o f law.’” 443 U.S. at 597. The Court observed:P U R I V

. K H A L S A 27

The primary advantag es of the neutralprinciples ap proach are that it is completely secular in operation, and y et flex ibl e enoug h
to accommoda t e all forms of relig ious

o rg aniz ation and polity

. The method relie s

ex c lusively on objective, well-established concepts of trust a

n d property

law familiar to l a w y ers and judg es. I t thereby promises to f r e e c i v i l c o u r t s c o m p l e t e l y f r o m entangl e ment in questions of relig ious doctrine, polity

, and practice.

Id. at 603. The Court recog niz e d “the application of the neutral-principles approach is [ not] w holly free of difficulty ”

as it m ay , f

or instance, “require[ ] a civil court to ex amine certain relig ious d ocuments, such as a church constitution, for lang uag e of trust in favor of the g eneral church.” Id. at 604. “I n undertaking such an ex amination, a civil court must take special care to scrutiniz e the documen t in purely secular terms, and n ot to rely on relig ious precepts.” Id. F urthermore, “there may be c ases w h e r e the deed, the corporate charter, or the consti t u t i on of the g eneral c hurch incorporates r elig ious concepts in the provisions relating to the ownership of property ,” and, “ [ i] f in s u c h a c ase the interpretation of the instruments of ownership would require the civil co u rt t o resolve a relig ious controversy , then the
court must defer to the r esolution of the doctrinal issue by the authoritative ecclesiastical body .” Id. (ci ting Milivojevich

, 426 U.S. at 7 09). Despite these challeng es, the Court concluded “[ o] n balance,

. . . the promise of nonentang lement and neutrality inherent in t h e neutral-principles approach

more than compensates for what will be occasional problems in application.” Id.P U R I V

. K H A L S A 28

Property disputes hav e proved especially amenable to application o f the n eutral-principles approach. See Kianfar

, 179 F .3d at 1249. B ut w e a re unaware of a ny authority o r

reason precluding c ourts from deciding other ty pes of c hurch dis p utes by application of p urely secular leg al rules, so long

as the d ispute does not fa l l within the ministerial ex c eption and can b e decided “without resolving underly ing controversies over relig ious doctrine.” Presbyterian Church

, 393 U.S. at 449; see also Milivojevich

, 426 U.S. at 710 (“This principle applies with equal f orce to church dis p u t e s over church polity and church administration.”). I ndeed, “we must be careful n ot to d e p r i v e relig ious org aniz ations of all

recourse to the protections o f civil law that are available to all others,” because “[ s] uch a deprivation would raise its o wn serious problems under the F ree Ex ercise Clause.” Kianfar

, 179 F .3d at 1248.

B.

1.

The Supreme Court has made clear t hat “a State may adopt any one of various approaches for settling church

. . . disputes so long as it involves n o consideration of doctrinal matters.” Jones
, 443 U.S

. a t 6 0 2 (quoting Md. & Va. Elder s h ip
, 3 96 U.S. at 368 (B rennan, J
., concurring )). I t is
t h u s constitutionally permissible for a court to apply eith e r the W a t s on approach (deferring to a church’s hig hest ecclesiastical authority

) or the neutral-principles approach to such disputes, as long as the court decide s t h e dispute “without resolving underly i n g controversies over relig ious doc t r ine.” Kianfar

, 1 79 F .3d a t 1248 (quoting Presbyterian C h urch

, 393 U .S. at 449). B ut we are not without fu r t h e rP U R I V

. K H A L S A 29

g uidance in decid i n g the proper approach f or cases litig ated in federal court.

F irst, Jones sug g e sted a clear preference for the neut r a lprinciples approach, noting that its “promise[ ] to free civil
courts completely f

rom e n t a n g l e m ent in questions of relig ious d o ctrine, polity

, and practice” o utweig h ed occasiona l difficulties in its application. Jones
, 4 4 3 U

. S. at 603–04. F ollowing Jones
, we held that where a relig ious entity has adopted civil “leg al structures, it is incumbent upon the civil
court

. . . to apply to those structures the secu l a r law that
g overns them.” S

e e Kianfar , 179 F

. 3d at 1250. 4

Second, where b oth appro a c h e s are available as a constitutional matter, we have made clear a court may apply the n eutral-principles approach e ven thoug h the W atson approach would lead to a contrary result. See id. at 1249 (discussing the Supreme Court’s approval of a state approach that required a decision “by n e u tral principles even thoug h the o u tcome mig ht contravene the decision of the hierarchical church” (citing Jones , 443 U.S. at 604–06)).

4 T h is h o ld in g f

o llo w s f ro m a p rin cip le a nn o u n ced in W a tso n i tself

. S ee Jo n es , 4 4 3 U

. S

. a t 6 0 3 n .3 (“ [E]v en in W a tso n v. Jo nes , . . . th e Co u rt[] stated th at, reg ard less o f th e f o rm o f ch u rch g o v ern m en t, it w ou ld b e th e ‘ o bv io u s d u ty ’ o f

a civ i l t rib u n al to en f

o rce th e ‘ ex p ress term s’ o f

a d eed

, w ill, o r o th er in stru m en t o f ch u rch p ro p erty o w n ersh ip .” (q u o tin g W a tso n , 8 0 U.S. (1 3 W all.) at 7 2 2 –2 3)). T h e Co u rt’ s en d o rsem en t o f th e

n eu t r a l

- p r i n c i p l es ap p ro ach in Jo n es sig n if ican tly b u ttressed t

h is p rin cip le,

an d f u rth er su p p o rted its ap p licatio n w h e r e th e “ leg ally co g n izab le f o rm [s]” o r stru ctu res are em b ed d ed w ith in ch u rch

- related d o cu m e n ts,

su ch as co rp o rate ch art e r s o r e v en ch u rch co n stitu

tio n s. S ee Jo n es , 4 4 3 U.S. 6 0 3 , 6 0 6

.P U R I V

. K H A L S A 30

Third, the W

a tson approach is not appropriate when “the
nature of the relig ious o rg aniz ati o n o r the identity o f its d e c ision-making body is d isputed o n the basis of relig i o u s doctrine.” Id. at 1248–49. W h ere the “ locus of control

. . . [ is] ambig uous,” W

atson deference “would appear to require ‘a searching and therefore impermissible inquiry into c hurch pol i t y .’” Jones
, 443 U.S. at 605 (quoting Milivojevich

, 426 U.S. at 723).

F inally

, our g en eral preference in federal cases for resolving claims by apply ing neutral principles is f urther supported here by the f

a c t that most claims in this case a re based on state law. Oreg on law would call for application o f
t h e state’s neutral-principles approach if this matter w e r e before a state court. See Hope Presbyterian Church of Rogue River v. Presbyterian Church ( U.S.A.)

, 2 9 1 P.3d 711, 720–21 (Or. 2012) (outlining a neutral-prin c i ples approach a fter “reex a min[ ing ] the proper methodolog y for resolving c hurch property disputes in Oreg on” in lig ht of t h e “ n ew leg al
contex t for evaluating church property d i s putes under the F irst Amendment” provided by Jones ). 5

5 T h e Su p rem e C o u rt h as n o t o u tlin ed o n e sp ecif ic n eu tral- p rin cip les
ap p r o a c h

, an d th ere m ay b e sig n if ican t v ariatio n in t

h e ap p ro ach es of

v ario u s states. S

ee Jo n es , 44 3 U.S. at 5 9 9– 6 10 ; see a lso Ch u rch o f Go d in Ch rist, In c. v. Gra h a m , 5 4 F .3 d 5 2 2
, 5 2 6

– 2 7 (8 th Cir. 1 9 9 5 ) (ap p ly in g Misso u ri’ s n eu t

ral- p rin cip les ap p r oach an d ref u sin g to ap p ly an elem en t

o f Mich ig an ’ s d isp arate ap pro ach ). A d d itio n ally

, o th er f ed e r a l circu i t

co u rts h av e co n sid ered th e ap p ro p riate s tate law to ap p ly to reso lv e ch u rch
p ro p erty d isp u tes w

h en sittin g i n d i v ersity

. S ee S co tts Africa n U

n i o n M e t h o dist Pro testa n t Ch urch v. Co nferen ce o f Africa n Un io n Fi r

s t Co lo red M

eth o d ist Pro testa n t Ch urch

, 9 8 F.3 d 7 8
, 9 2

– 9 4 (3 d Cir. 19 9 6) (ap p ly in g N ew J ersey law

, as pred ict e d b y fed eral co u rt, to f o llo w th e

s t ate’ s n eu tral- prin cip les ap p ro ach ); Askew v. Trs. o f Gen

. Asse m b l

y o f Ch u r ch o f t h e Lo rd Jesu s Ch rist of th e Ap o sto lic Fa ith In c. , 6 8 4 F.3 d 4 1 3
, 4 1 9 (3 d Cir. 2 0 1 2 ) (n o tin g “ P en n sy lv an ia co u rts o p t to ap p ly n eu tral civ i lP U R I V

. K H A L S A 31

I n lig ht of the pref

erence to a

pply neutral principles to enforce secular rig hts where possi b le, the Oreg on state law

c h a r a c ter of most o f the claims in this case, and O reg o n ’s adoption of the neutral-principles approach, we procee d t o determine whether such an approach may be constitutionally applied in this case.

2.

I t appears a neutral-principles approach “may resolve

. . . the disputed

. . . issues without sig nificant constitutional difficulties,” and is a proper means of resolving this dispute. Kianf a r , 179 F .3d at 1249. The plaintiffs do not seek

recourse to civil courts f

o r r e s olution of a controversy over relig ious doctrine. Nor do they a sk civil courts to d e cide

w h e t h e r a r e l i gi o u s o r ga n i z a t i o n p r o p er l y a p p l i e d ecclesiastical rules in settling a leadership dispute, as was true in Milivojevich

, 426 U.S. a t 708, a nd of the one req u es t f

o r relief we held could n ot be decided by neutral p rinciples in Kianfar

, 179 F .3d at 1250. Rather, the plaintiffs here ask the
courts to decide what a mounts to a secular factual question: under Oreg on law and the secular g overning documents o f UI
, an Oreg on nonprofit limited liability company , a nd SSSC,

an Oreg on nonprofit relig ious corporation, were the plaintiffs elected or desig n a t e d to the disputed b oard positions? This
q u e s t ion is quintessentially “susceptible to decision by neu t r a l principles.” I

d. at 1249.

law p rin cip l es w

h en ev er p o ssib le to reso lv e su ch cases” b ef ore d eterm in in g th at su ch ap p ro ach w as im p ro p erly ap plied to an ecclesiastical q u estio n ). H e r e , a s i n Kia n fa r , w e d o n o t seek to reso lv e wh ich n eu t

ral- p rin cip les ap p ro ach m ay b e p ro p erly

ap p lied . Rath er, o u

r

r e v i e w is l im i ted to th e th resh o ld co n s titu tio n al q u estio n o f w h eth er th e issu es raised can b e decid ed a t a ll w ith o u t v i o l atin g th e F irst A m en d m en t. S ee Kia nfa r , 1 7 9 F.3 d at 1 2 4 8.P U R I V

. K H A L S A 32

At this stag e, the parties d o not c ontest whether t h e plaintiffs meet the relig ious e l i gibility requirements f o r the dispute d b o ard positions, and the defendants “do not offer a relig ious justification” for their failure to seat the plaintiffs on the boards. Bollard

, 196 F

. 3d at 947. The dispute, w h ich “concern[ s] the [ d] efendants’ actions, n ot their beliefs,” turns entirely on “what t h e [ defendants] did

, . . . and the tex ts g uiding [ their] actions can be subjected to secular leg al analy sis.” Elvig

, 375 F .3d at 963, 968. As in Bollard

, “ [ t] his is a restr i c ted inquiry

. Nothing in the character of th[ e] defense will r equire a jury to e v aluate r elig ious d o ct ri ne o r the ‘reasonableness’ of the relig ious practices followed . . . . I nstead, the jury must make [ only ] s e c u lar judg ments

. . . . ” Bollard

, 196 F .3d at 950; see also Elvig

, 375 F .3d a t 963. A s this d ispute has been presented to us , it appears the district

c o u rt can resolve it “ by r ely ing o n state statutes

. . . and t h e terms of corporate charters of re l i g i ous o r g aniz a tions.” Kianfar

, 179 F

. 3 d at 1249 (citing Md. & V a

. Eldership

, 396 U.S. a t 367). Thus, there is “no dang er that, by allowing this suit to p roceed, we will thrust the secular courts into the constitutionally untenable position of passing judg ment on questions of relig ious faith or doctrine.” Bollard

, 196 F .3d at 9 4 7. Under these circumstances, the availability o f t h e

n e u t r a l

- p r i n c i p l es a p p r o a c h o b v i at e s t h e n e e d f o r ecclesiastical abstention.

C.

Even if ecclesiastical absten t i o n w o u l d o t

h e r w i s e p r e c l u de
resort to civil courts, th e p l a intiffs contend this dispute is susceptible to judicial review under the so-cal l e d “ fraud o r collusion” ex ception. See Askew

, 684 F .3d at 418, 420 (“A do ct r inally g rounded decision made during litig ation to insulate questionable church a ctions from civil court r eviewP U R I V

. K H A L S A 33

may indeed raise an i n f

e r e nce of fraud or bad faith,” a nd “[ u] nder those c ircumstances, the i n t e g rity of the judicial
sy stem may o utweig h F irst Amendment concerns such that a civil court may inquire into the decision.”). B ecause we hold it is not apparent from t h e c omplaint that ecclesiastical abstention applies, we have n o occasion to address the fraud or collusion ex ception here.

CONCLUSION

“[ A] pply ing any laws to relig ious institutions necessarily interferes with the unfettered autonomy c hurches wou ld

o t herwise enjoy

, [ but] this sort of g eneraliz ed and diffuse

concern for church autonomy , without more, does not e x empt them f rom the operation of secular laws.” B o llard

, 196 F .3d
at 948. As this case has b een presented to us, the defendants have not establishe d t h a t the plaintiffs’ claims are barred b y the ministerial ex c e p tion, and the ecclesiastical ab s t e n tion doctrine does not a

pply because the dis p ute is amenable to resolution by application of neutral principles of law. Thus, the district c ourt erred in dismissing t h e plaintiffs’ c laims under the F irst Amendment.

F or the reasons stated here and in the conc u r re n t ly filed memorandum disposition, the judg m e n t of the district court is v a c at e d in part and affirmed in part, and the case is remanded to the district court.

V ACATED IN P ART, AF F IRMED IN P ART A ND REMANDED.

Each party

shall bear its own costs on appeal.