Revised May 14, 1999

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 98-10193

___________________________

REVEREND PAMELA COMBS,

Plaintiff-Appellant,

VERSUS

THE CENTRAL TEXAS ANNUAL CONFERENCE OF THE UNITED METHODIST

CHURCH (a non-profit corporation) and THE FIRST UNITED METHODIST

CHURCH OF HURST, 

Defendants-Appellees.

___________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

 ___________________________________________________

May 3, 1999

Before DAVIS, SMITH, and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Reverend Pamela Combs appeals the dismissal of her Title VII

sex and pregnancy discrimination suit against the First United

Methodist Church of Hurst (“First United”) and the Central Texas

Annual Conference of the United Methodist Church (“Central Texas

Conference”). The sole question presented in this appeal is

whether the district court correctly determined that the Free

Exercise Clause of the First Amendment precluded it from

considering Reverend Combs’s employment discrimination case. For

the reasons that follow, we conclude that the district court was
2

correct and affirm.

I.

The district court granted Central Texas Conference’s Motion

for Summary Judgment and also granted First United’s Motion to

Dismiss under Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6). Therefore, on appeal, we review the facts, including

credibility determinations and the reasonable inferences that may

be drawn from the facts, in the light most favorable to the

nonmoving party, Plaintiff Reverend Combs. See, e.g., Wynn v.

Washington Nat’l Ins. Co., 122 F.3d 266, 268 (5th Cir. 1997). The

facts of this case, when viewed in such a light, are summarized as

follows.

Reverend Combs is a graduate of the New Orleans Theological

Seminary. In 1988, she was ordained as a Baptist minister. In

1993, she was hired as First United’s Singles Minister. In late

1994, she was appointed First United’s Associate Minister. In this

new position, she served communion, assisted in baptisms, performed

marriages, and led funerals.

In February 1995, as part of the long process of having her

ordination recognized within the Methodist Church, she was

interviewed by the United Methodist Board of Ordained Ministry,

which unanimously recommended to the Bishop of the Central Texas

Conference that she be ordained. In June 1995, she was appointed

by the Bishop, Joe A. Wilson, to serve for the next year as a

minister at First United.
3

In October 1995, Reverend Combs, who was--and still is--

married, announced that she was pregnant. She requested and was

granted maternity leave for the expected childbirth. In March

1996, she had her annual interview with the United Methodist Board

of Ordained Ministry. The board again recommended unanimously that

Reverend Combs continue with the process of having her ordination

recognized within the Methodist Church.

Around this time, Reverend Combs questioned why her pay was

substantially lower than that of the male ministers she had

replaced. She also requested a housing allowance because she and

her family had moved out of the parsonage to free up space for

other church use. In response, the Staff Parish Relations

Committee made several adjustments to her compensation package.

In April 1996, Reverend Combs took some accrued vacation time

and began her eight-week maternity leave, as provided for clergy by

the rules of the United Methodist Church Book of Discipline. On

April 17, 1996, she gave birth. Unfortunately, however, Reverend

Combs suffered serious post-partum complications, which required

hospitalization, surgery, heavy medication, and extensive rest.

During this period of incapacitation, Reverend Combs’s

position within First United was questioned by her pastor and

immediate supervisor, Dr. John Fielder. He challenged her

competence, performance, and honesty. In addition, one of First

United’s oversight committees stated that she was a lay employee

rather than a member of the clergy. The church then denied her the

maternity benefits she had been granted and demanded she repay
4

those benefits that had already been paid to her.

Nevertheless, in June 1996, the Bishop of the Central Texas

Conference reappointed Reverend Combs as an Associate Minister for

First United. However, when Reverend Combs returned to work on

June 17, 1996, she was told by Dr. Fielder that she had been

terminated and that she was required to leave the premises

immediately. The next day, Reverend Combs went to the Staff Parish

Relations Committee. The committee stated that Dr. Fielder said

she had resigned and that the committee had accepted her

resignation. Reverend Combs protested that she had not resigned,

but to no avail. Reverend Combs then brought the matter to the

attention of the Central Texas Conference. However, she found no

support from that organization either.

Reverend Combs filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”). The EEOC dismissed the claim

under Section 702 of Title VII, which permits religious

organizations to discriminate on the basis of religion. 42 U.S.C.

§ 2000e-1. The EEOC, however, did grant Reverend Combs a “right to

sue” letter.

Reverend Combs sued both the Central Texas Conference and

First United, alleging discrimination on the basis of her sex and

her pregnancy in violation of Title VII. She alleged that the

deprivation of her benefits and her termination were the conclusion

of a practice of discrimination that included disparate salary and

treatment while she was employed.

In response to this suit, Defendant Central Texas Conference
1 All parties agree that, at least for the purposes of this

appeal, the following facts are true: Reverend Combs was a member

of the clergy performing traditional clerical functions; both

Defendants are churches and at least one of them employed Reverend

Combs; and Reverend Combs’s claims are based purely on sex and

pregnancy and do not directly involve matters of religious dogma or

ecclesiastical law. In addition, for the purposes of this appeal,

we assume that Reverend Combs’s allegations are sufficient to

support a finding of discrimination.

2 The First Amendment provides, in part, “Congress shall make

no law respecting an establishment of religion, or prohibiting the

free exercise thereof; . . . ”

5

filed a Motion for Summary Judgment arguing, among other things,

that the decision to terminate Reverend Combs was shielded from

governmental review by the Free Exercise Clause of the First

Amendment. Defendant First United filed a Motion to Dismiss under

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) predicated

upon the same theory. On January 15, 1998, the district court

granted these two motions and dismissed Reverend Comb’s suit. The

district court held that the First Amendment prohibits civil review

of the Defendants’ decision to terminate Reverend Combs and

therefore the district court lacked jurisdiction over the case.

Reverend Combs now appeals this dismissal.1

II.

The question before us is whether the Free Exercise Clause of

the First Amendment2 deprives a federal court of jurisdiction to

hear a Title VII employment discrimination suit brought against a

church by a member of its clergy, even when the church’s challenged

actions are not based on religious doctrine.

All parties agree that prior to 1990, the district court
3 Courts have called this exception both the church-minister

exception and the ministerial exception. We use both terms

interchangeably.

6

decision would have been correct. In McClure v. Salvation Army,

460 F.2d 553, 560 (5th Cir. 1972), this Court established a churchminister3 exception to the coverage of Title VII. In this appeal,

however, Reverend Combs questions whether McClure and its churchminister exception still stand in light of the Supreme Court’s

decision in Employment Division, Department of Human Resources of

Oregon v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876

(1990). To resolve this question, we start by reviewing McClure

and move from that case forward.

A.

In 1972, this Court was asked whether Mrs. Billie McClure, a

Salvation Army officer alleging discrimination on the basis of her

sex, could state a claim against the Salvation Army under Title VII

of the Civil Rights Act of 1964. McClure, 460 F.2d at 554-57.

Relying in part upon the findings of the district court, this Court

determined that the Salvation Army was an “employer” under Title

VII, and that the Salvation Army was engaged in interstate

commerce. Id. Therefore, the Court determined that the Salvation

Army fell within the general coverage of Title VII. Id.

The Court also determined that the Salvation Army was a church

and that Mrs. McClure was an ordained minister within that church.

These findings required the Court to address two further questions:

Was the Salvation Army exempt from Title VII under Section 702's
4 This reference to the “compelling state interest” test set

forth in Sherbert will become important in light of later Supreme

Court decisions.

7

religious exemption? If not, did the First Amendment exempt the

Salvation Army’s treatment of Mrs. McClure from federal review

under Title VII?

In answering the first question, the Court concluded that

although Section 702 exempts religious organizations from Title

VII’s coverage for religious discrimination, it does not provide a

blanket exemption for all discrimination. Title VII still

prohibits a religious organization from discriminating on the basis

of race, color, sex, or national origin. Id. Because Mrs. McClure

was alleging discrimination on the basis of her sex, this Court

held that her claim did not fall within the Section 702 exemption.

After determining that Mrs. McClure’s claim fell within the

statutory coverage of Title VII, the Court addressed whether the

Free Exercise Clause of the First Amendment permitted such a claim

by a minister against her church. The Court began by noting that

the First Amendment has built a “wall of separation” between church

and state. Id. After describing this wall, the Court stated:

Only in rare instances where a “compelling state interest in

the regulation of a subject within the State’s constitutional

power to regulate” is shown can a court uphold state action

which imposes even an “incidental burden” on the free exercise

of religion. In this highly sensitive constitutional area

“‘[o]nly the gravest abuses, endangering paramount interests,

give occasion for permissible limitation.’” Sherbert v.

Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965

(1963).4

This Court then emphasized the importance of the relationship
8

between an organized church and its ministers, describing it as the

church’s “lifeblood.” McClure, 460 F.2d at 558-59. The Court

reviewed a series of cases in which the Supreme Court had placed

matters of church government and administration beyond the

regulation of civil authorities. Id. at 559-60 (citing and

describing Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L. Ed. 666

(1871) (affirming state court decision not to become involved in

factional dispute within church); Gonzalez v. Roman Catholic

Archbishop of Manila, 280 U.S. 1, 50 S. Ct. 5, 74 L. Ed. 131 (1929)

(declining, absent fraud, collusion, or arbitrariness, to involve

secular courts in matters purely ecclesiastical); Kedroff v. St.

Nicholas Cathedral, 344 U.S. 94, 73 S. Ct. 143, 97 L. Ed. 120

(1952) (holding that legislation transferring control of Russian

Orthodox churches from Patriarch of Moscow to convention of North

American churches is unconstitutional interference with the free

exercise of religion); Kreshik v. St. Nicholas Cathedral, 363 U.S.

190, 80 S. Ct. 1037, 4 L. Ed. 2d 1140 (1960) (overturning, as

unconstitutional involvement in matters of church administration,

state court ruling that Patriarch of Moscow did not control Russian

Orthodox churches within North America); Presbyterian Church v.

Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S.

440, 89 S. Ct. 601, 21 L. Ed. 2d 658 (1969) (warning against civil

court involvement in church property litigation)).

After reviewing this Supreme Court precedent, the McClure

Court determined that applying Title VII to the employment

relationship between the Salvation Army and Mrs. McClure “would
9

involve an investigation and review . . . [that] would . . . cause

the State to intrude upon matters of church administration and

government which have so many times before been proclaimed to be

matters of a singular ecclesiastical concern.” McClure, 460 F.2d

at 560. Thus, the Court held that applying Title VII to the

relationship under consideration “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. The Court therefore affirmed the

district court’s dismissal of Mrs. McClure’s claim.

Most of our sister circuits adopted the church-minister

exception articulated in McClure. See, e.g., Natal v. Christian

and Missionary Alliance, 878 F.2d 1575, 1577-78 (1st Cir. 1989);

Rayburn v. General Conf. of Seventh-day Adventists, 772 F.2d 1164,

1168-69 (4th Cir. 1985); Hutchinson v. Thomas, 789 F.2d 392, 393

(6th Cir. 1986); Young v. Northern Illinois Conf. of United

Methodist Church, 21 F.3d 184, 185 (7th Cir. 1994); Scharon v. St.

Luke’s Episcopal Presbyterian Hosp., 929 F.2d 360, 363 (8th Cir.

1991); Minker v. Baltimore Annual Conf. of United Methodist Church,

894 F.2d 1354, 1358 (D.C. Cir. 1990). Although the Supreme Court

itself has never adopted the McClure exception, it is the law of

this circuit and much of the rest of the country.

B.

Reverend Combs contends in this appeal that the McClure

church-minister exception cannot stand in light of the Supreme

Court’s decision in Employment Division, Department of Human
10

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 were fired by their

employer because of their sacramental use of peyote--a controlled

substance under Oregon law--within the Native American Church.

Oregon denied unemployment benefits to Smith and Black because they

were terminated for “misconduct”--a violation of Oregon criminal

law. Smith and Black argued that the Free Exercise Clause of the

First Amendment prohibited Oregon from denying them benefits solely

because they ingested peyote for sacramental purposes. Id. at 874-

77, 110 S. Ct. at 1597-99. In order to resolve this issue, the

Supreme Court considered whether Oregon was constitutionally

permitted to include the religious use of peyote within its general

criminal prohibition of that drug. Id. at 874, 110 S. Ct. at 1597.

The Supreme Court determined that Oregon’s prohibition on all

peyote use did not violate the First Amendment: “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 (or prescribes) conduct that his religion

prescribes (or proscribes).” Id. at 879, 110 S. Ct. at 1600

(citations and internal quotation marks omitted). In arriving at

this conclusion, the Supreme Court specifically rejected the

“compelling state interest” test set forth in Sherbert v. Verner,

374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). The Court

then held that because Oregon was constitutionally permitted to

prohibit Smith’s and Black’s ingestion of peyote, Oregon was also
11

constitutionally permitted to deny them unemployment benefits when

their dismissal resulted from their use of the drug. Smith, 494

U.S. at 890, 110 S. Ct. at 1606.

Congress attempted to reverse Smith legislatively by passing

the Religious Freedom Restoration Act of 1993 (“RFRA”), Pub. L. No.

103-141, 107 Stat. 1488, codified at 42 U.S.C. § 2000bb et seq.

(1994), which granted religious organizations broad immunity from

neutrally applicable laws. One of the stated goals of RFRA was to

restore the compelling interest test from Sherbert that the Supreme

Court had rejected in Smith.

The Supreme Court, however, held RFRA to be unconstitutional.

In its 1997 decision in City of Boerne v. Flores, 521 U.S. 507, 117

S. Ct. 2157, 138 L. Ed. 2d 624 (1997), the Supreme Court adopted

its earlier analysis in Smith. In a passage now quoted by Reverend

Combs, the Court stated, “When the exercise of religion has been

burdened in an incidental way by a law of general application, it

does not follow that the persons affected have been burdened more

than other citizens, let alone burdened because of their religious

beliefs.” Id. at --, 117 S. Ct. at 2171.

Reverend Combs’s argument that McClure cannot stand in light

of the Supreme Court’s decisions in Smith and Boerne is relatively

straightforward: First, in Smith and Boerne, the Supreme Court

held that the First Amendment does not bar the application of

facially neutral laws even when these laws burden the exercise of

religion. Second, McClure was based on the now-rejected

“compelling interest” test. For these reasons, Reverend Combs
5 The D.C. Circuit determined that the nun, Sister McDonough,

was included within the coverage of the ministerial exception.

Catholic University, 83 F.3d at 463-64.

6 The D.C. Circuit focuses on both McClure and Minker v.

Baltimore Annual Conference of United Methodist Church, 894 F.2d

1354, 1358 (D.C. Cir. 1990), in which the D.C. Circuit adopted the

ministerial exception.

12

argues that McClure no longer controls and therefore she should be

permitted to pursue her Title VII discrimination claim against

First United and the Central Texas Conference.

1.

A well-reasoned opinion from the D.C. Circuit recently

considered the precise question presented to us. In E.E.O.C. v.

Catholic University, 83 F.3d 455 (D.C. Cir. 1996), that court was

asked whether, in light of Smith, a professor who was also a

Catholic nun could sue Catholic University for sex discrimination

in the denial of her application for tenure.5 In resolving this

issue, the D.C. Circuit addressed the post-Smith validity of the

ministerial exception.6

The D.C. Circuit began its analysis by making the important

distinction between two different strands of free exercise law.

The court stated, “government action may burden the free exercise

of religion, in violation of the First Amendment, in two quite

different ways: by interfering with a believer’s ability to observe

the commands or practices of his faith, . . . and by encroaching on

the ability of a church to manage its internal affairs.” Id. at

460 (internal citations omitted). The court emphasized that the

Supreme Court has shown a particular reluctance to interfere with
13

a church’s selection of its own clergy. Id. (citing Gonzalez v.

Roman Catholic Archbishop of Manila, 280 U.S. 1, 16, 50 S. Ct. 5,

7-8, 74 L. Ed. 131 (1929); Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696, 717, 96 S. Ct. 2372, 2384, 49 L. Ed. 2d

151 (1976)).

The court concluded that Smith did not address the Free

Exercise Clause’s protection to a church against government

encroachment into the church’s internal management. Catholic

University, 83 F.3d at 461. Rather, Smith only addressed the

strand of Free Exercise Clause protection afforded an individual to

practice his faith. Thus, the Catholic University court determined

that the language in Smith that the plaintiff relied on--“the right

of free exercise does not relieve an individual of the obligation

to comply with a valid and neutral law of general applicability .

. . ,” Smith, 494 U.S. at 879, 110 S. Ct. at 1600--did not mean

that a church, as opposed to an individual, is never entitled to

relief from a neutral law of general application. 

The D.C. Circuit provided two main reasons for its conclusion.

First, the court stated that: 

[T]he 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 [Supreme] Court in support of its holding. The

ministerial exception is not invoked to protect the freedom of

an individual to observe a particular command or practice of

his church. Rather it is designed to protect the freedom of

the church to select those who will carry out its religious

mission. Moreover, the ministerial exception does not present

the dangers warned of in Smith. Protecting the authority of

a church to select its own ministers free of government

interference does not empower a member of that church, by

virtue of his beliefs, to become a law unto himself. Nor does
14

the exception require judges to determine the centrality of

religious beliefs before applying a “compelling interest” test

in the free exercise field.

Catholic University, 83 F.3d at 462 (internal quotation marks and

internal citations omitted).

Second, the D.C. Circuit acknowledged that the Supreme Court

had rejected the “compelling interest” test cited by some courts

(including McClure) when invoking the ministerial exception. The

court observed, however, that many courts applying the exception

rely on a long line of Supreme Court cases standing for the

fundamental proposition that churches should be able to “decide for

themselves, free from state interference, matters of church

government as well as those of faith and doctrine.” Catholic

University, 83 F.3d at 462 (quoting Kedroff, 344 U.S. at 116, 73 S.

Ct. at 154). The D.C. Circuit concluded, “we cannot believe that

the Supreme Court in Smith intended to qualify this century-old

affirmation of a church’s sovereignty over its own affairs.”

Catholic University, 83 F.3d at 463.

2.

We agree with both the reasoning and the conclusion of the

D.C. Circuit. Especially important is that court’s distinction

between the two strands of free exercise cases--restrictions on an

individual’s actions that are based on religious beliefs and

encroachments on the ability of a church to manage its internal

affairs. Reverend Combs acknowledges this distinction, but argues

that it does not determine the outcome of this case. Instead,

Reverend Combs contends that Smith and Boerne indicate that the
15

constitutional protection for religious freedom is impermissibly

broadened when it grants churches immunity from employment actions

by clergy when such actions are not based on questions of religious

dogma or ecclesiastical law. We disagree.

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 Combs’s case, which

pertains to interference in internal church government. We concur

wholeheartedly with the D.C. Circuit’s conclusion that Smith, which

concerned individual free exercise, did not purport to overturn a

century of precedent protecting the church against governmental

interference in selecting its ministers.

We also disagree with Reverend Combs’s argument that McClure

is no longer good law because it relied on the “compelling state

interest” test rejected by the Supreme Court in Smith. Our review

of McClure reveals that although this Court presented the

“compelling state interest” test in its general discussion of First

Amendment law, the test is never applied or even mentioned later in

the opinion. Thus, it is unclear how much this Court was actually

relying on this test. Moreover, even if the McClure panel was

relying on the Sherbert test, we hold that the church-minister

exception survives Sherbert’s demise. As the D.C. Circuit observed

in Catholic University, the primary doctrinal underpinning of the

church-minister exception is not the Sherbert test, but the
16

principle that churches must be free “to decide for themselves,

free from state interference, matters of church government as well

as those of faith and doctrine.” Kedroff, 344 U.S. at 116, 73 S.

Ct. at 154 (cited by this Court in McClure, 460 F.3d at 560, and by

the D.C. Circuit in Catholic University, 83 F.3d at 462). This

fundamental right of churches to be free from government

interference in their internal management and administration has

not been affected by the Supreme Court’s decision in Smith and the

demise of Sherbert.

3.

The final point to address is Reverend Combs’s argument that

Catholic University is distinguishable from this case because a

resolution of Sister McDonough’s claim in Catholic University would

have required an evaluation of church doctrine, while there would

be no such need in this case.

Sister McDonough was denied tenure at Catholic University at

least in part because the reviewing committees decided that her

teaching and scholarship failed to meet the standards required of

a tenured member of Catholic University’s Canon Law Faculty.

Indeed at trial, the parties introduced an “extensive body of

conflicting testimony” concerning the quality of Sister McDonough’s

publications. Catholic University, 83 F.3d at 465. We agree that

the district court would have been placed in an untenable position

had it been required to evaluate the merits of Sister McDonough’s

canon law scholarship. Having a civil court determine the merits

of canon law scholarship would be in violent opposition to the
7 In Simpson, the plaintiff argued that the McClure exception

should not apply to his racial discrimination claim because it was

unrelated to church dogma. This Court disagreed, however, and

determined that the First Amendment protection relative to the

relationship between a church and a minister extended beyond purely

dogmatic issues. Id. at 493-94; see also Kedroff v. St. Nicholas

Cathedral, 344 U.S. 94, 116, 73 S. Ct. 143, 154-55, 97 L. Ed. 120

(1953).

17

constitutional principle of the separation of church and state.

See Presbyterian Church v. Mary Elizabeth Blue Hill Memorial

Presbyterian Church, 393 U.S. 440, 445, 89 S. Ct. 601, 604, 21 L.

Ed. 2d 658 (1969) (civil courts are not permitted to determine

ecclesiastical questions). Reverend Combs argues that because the

resolution of her claim, in contrast to that of Sister McDonough,

requires no evaluation or interpretation of religious doctrine, her

claim should be allowed to proceed.

Not long after our decision in McClure, this Court rejected a

similar argument in Simpson v. Wells Lamont Corp., 494 F.2d 490

(5th Cir. 1974).7 As this Court observed in Simpson, the First

Amendment concerns are two-fold. 494 F.2d at 493-94. The first

concern is that secular authorities would be involved in evaluating

or interpreting religious doctrine. Id. The second quite

independent concern is that in investigating employment

discrimination claims by ministers against their church, secular

authorities would necessarily intrude into church governance in a

manner that would be inherently coercive, even if the alleged

discrimination were purely nondoctrinal. Id. This second concern

is the one present here. This second concern alone is enough to

bar the involvement of the civil courts.
18

In short, we cannot conceive how the federal judiciary could

determine whether an employment decision concerning a minister was

based on legitimate or illegitimate grounds without inserting

ourselves into a realm where the Constitution forbids us to tread,

the internal management of a church. 

Conclusion

This case involves the interrelationship between two important

governmental directives--the congressional mandate to eliminate

discrimination in the workplace and the constitutional mandate to

preserve the separation of church and state. As this Court

previously observed in McClure, both of these mandates cannot

always be followed. In such circumstances, the constitutional

mandate must override the mandate that is merely congressional.

Thus, we are persuaded that the First Amendment continues to give

the church the right to select its ministers free from Title VII’s

restrictions.

Because the district court correctly dismissed Reverend

Combs’s suit, its judgment is AFFIRMED.