BOLLARD v SOCIETY OF JESUS, 9816194o
U.S. 9th Circuit Court of Appeals
BOLLARD v SOCIETY OF JESUS
9816194o
JOHN BOLLARD,
Plaintiff-Appellant,
v.
THE CALIFORNIA PROVINCE OF THE
No. 98-16194
SOCIETY OF JESUS; THE MARYLAND
D.C. No.
PROVINCE OF THE SOCIETY OF JESUS;
CV-97-03006-SI
THE OREGON PROVINCE OF THE
SOCIETY OF JESUS; THE JESUIT ORDER DENYING
CONFERENCE; FATHER JOHN PRIVETT, REHEARING
S.J.; FATHER ANDREW SOTELO, S.J.;
FATHER THOMAS GLEESON, S.J.;
FATHER ANTON HARRIS, S.J.,
Defendants-Appellees.
Filed May 5, 2000
Before: David R. Thompson and William A. Fletcher,
Circuit Judges, and Susan Oki Mollway, 1 District Judge.
Order; Dissent by Judge Wardlaw
_________________________________________________________________
ORDER
The panel, as constituted above, has voted unanimously to
deny the petitions for rehearing. Judge W. Fletcher voted to
deny the petitions for rehearing en banc, and Judges Thomp-
son and Mollway so recommended.
A judge of the court called for a vote on the petitions for
rehearing en banc. A vote was taken, and a majority of the
active judges of the court failed to vote for en banc rehearing.
Fed. R. App. P. 35(f).
The petitions for rehearing and the petitions for rehearing
en banc are DENIED.
_________________________________________________________________
WARDLAW, Circuit Judge, with whom KOZINSKI,
O'SCANNLAIN, and KLEINFELD, Circuit Judges, join, dis-
senting from denial of rehearing en banc:
At stake in this case is whether the First Amendment con-
tinues to protect the Free Exercise and Establishment Clause
rights of religious institutions in their church administration,
operation, and selection of clergy in the form of the ministe-
rial exception to Title VII. The panel opinion narrows the
ministerial exception nearly to the point of extinction by
allowing Bollard, a Jesuit novice studying for ordination into
the Catholic priesthood, to maintain his Title VII claim of
alleged sexual harassment against the Society of Jesus. In so
doing, the panel opinion undermines over a century of
Supreme Court jurisprudence, runs contrary to every other
United States Court of Appeals that has had occasion to visit
the issue, and further evidences the confusion among lower
courts over the nature of the fundamental religious freedoms
protected by the First Amendment. See KDM v. Reedsport
Sch. Dist., Nos. 98-35186, 98-35187 (O'Scannlain, J., dissent-
ing from denial of rehearing en banc) (citing Columbia Union
College v. Clark, 119 S. Ct. 2357, 2358 (1999) (Thomas, J.
dissenting from the denial of certiorari)).
The panel opinion employs a flawed analysis of the nature
of Bollard's allegations and damage claims, the necessary
intrusion into church affairs litigation of those claims will
entail, and the ministerial exception itself. Bollard does not
claim that he was constructively discharged from employment
by the Jesuits as a high school teacher, counselor, or youth
advisor. Bollard's complaint is that the Jesuits prevented him
from becoming a Jesuit priest by failing to address his alleged
sexual harassment. Thus, Bollard's future in the priesthood is
at the heart of his claim. This directly implicates the minister-
church relationship, an undisputed matter of core ecclesiasti-
cal concern. See, e.g., Serbian E. Orthodox Diocese v. Milivo-
jevich, 426 U.S. 696, 717 (1976) (noting "questions of church
discipline and composition of the church hierarchy are at the
core of ecclesiatical concern"); EEOC v. Pacific Press Publ'g
Ass'n, 676 F.2d 1272, 1278 (9th Cir. 1982) (recognizing Fifth
Circuit ministerial exception, and noting that "matters touch-
ing" upon the "relationship [between a church and its minis-
ters] must necessarily be recognized as of prime ecclesiastical
concern").1 The judiciary must now evaluate Bollard's claim
that the Jesuit Order deprived him of a livelihood as a priest
and that he is therefore entitled to compensation for the loss
of a lifetime career in the Jesuit Order. This is precisely what
the Constitution forbids.
For over a century, the Supreme Court has restricted the
government from interfering in the governance, discipline, or
doctrine of religious organizations. See, e.g., Watson v. Jones,
80 U.S. (13 Wall.) 679, 727 (1871) (holding that church deci-
sions on "questions of discipline, or of faith, or ecclesiastical
rule, custom, or law" are final); Gonzalez v. Roman Catholic
Archbishop, 280 U.S. 1, 16 (1929) (finding that "it is the
function of the church authorities to determine what the
essential qualifications of a chaplain are and whether the can-
didate possesses them"); Kedroff v. St. Nicholas Cathedral of
Russian Orthodox Church, 344 U.S. 94, 107 (1952) (recog-
nizing that the Free Exercise Clause of the First Amendment
prohibits "legislation that regulates church administration, the
operation of churches [or] appointment of clergy"); Kreshik v.
St. Nicholas Cathedral of Russian Orthodox Church , 363 U.S.
190, 191 (1960) (per curiam) (holding that constitutional prin-
ciples prevent the judiciary, as well as the legislature, from
interfering with the free exercise of religion); Serbian E.
Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 717
(1976) (holding that "religious controversies are not the
proper subject of civil court inquiry, and that a civil court
must accept the ecclesiastical decisions of church tribunals as
it finds them"). Though the concept originated through appli-
cation of the Free Exercise Clause, the Supreme Court has
held that the Establishment Clause also protects church auton-
omy in internal religious matters. See, e.g., NLRB v. Catholic
Bishop, 440 U.S. 490, 502 -03 (1979) (holding that NLRB
supervision of teacher-parochial school labor relations risked
excessive entanglement of government with religion, as it
would "necessarily involve inquiry into the good faith of the
position asserted by the clergy-administrators and its relation-
ship to the school's religious mission").
As the district court opinion correctly points out, resolution
of Bollard's sexual harassment claims will require the judicial
branch to delve into religious matters outside the judiciary's
province, such as conditions of his association with the Jesu-
its; disciplinary and supervisory decisions they made; whether
Bollard would have otherwise been ordained into the priest-
hood; and the "extent to which [he] would be `made whole'
from loss of a life of spiritual service or the proper compensa-
tion for the `emotional pain' one suffers from this depriva-
tion." Bollard v. California Province of the Soc'y of Jesus,
No. C 97-3006, 1998 WL 273011, at *5 (N.D. Cal. May 15,
1998). Every other circuit that has addressed the scope of the
ministerial exception agrees that such an inquiry is barred by
the Religion Clauses. See Gellington v. Christian Methodist
Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000)
("Investigation . . . into a church's employment of its clergy
would almost always entail excessive government entangle-
ment into the internal management of the church."); Combs v.
Central Texas Annual Conf. of United Methodist Church, 173
F.3d 343, 350 (5th Cir. 1999) (holding that Title VII claims
by ministers against their church necessarily require "secular
authorities [to] intrude into church governance in a manner
that would be inherently coercive, even if the alleged [mis-
conduct] were purely nondoctrinal"); EEOC v. Catholic Univ.
of Am., 83 F.3d 455, 467 (D.C. Cir. 1996) (holding that Reli-
gion Clauses bar nun's Title VII claim for denial of university
tenure); Young v. Northern Ill. Conf. of United Methodist
Church, 21 F.3d 184, 187-88 (7th Cir. 1994) (holding that
Free Exercise Clause precluded Title VII sex and race dis-
crimination claim for denial of promotion and discontinuance
of minister status); Scharon v. St. Luke's Episcopal Presbyte-
rian Hosps., 929 F.2d 360, 363 (8th Cir. 1991) ("To allow
Scharon's case to continue would necessarily lead to the kind
of inquiry into religious matters that the First Amendment for-
bids."); Rayburn v. General Conf. of Seventh-Day Adventists,
772 F.2d 1164, 1171 (4th Cir. 1985) (holding that Religion
Clauses barred Title VII sex and race discrimination claims
for denial of pastoral position).
As the district court wrote, "[t]he ministerial exception is
a well-established compromise between two extremely impor-
tant interests -- the interest in eradicating discrimination in
employment and the right of a church to manage its religious
affairs free from governmental interference." Bollard, 1998
WL 273011, at *3. The panel opinion deviates from that well-
established compromise, counter to Supreme Court authority
and that of our sister circuits. Because the panel's decision
portends serious consequences for one of the bedrock princi-
ples of our country's formation -- religious freedom -- it is
undeniably an issue of exceptional importance.
I therefore respectfully dissent from the denial of the peti-
tion for rehearing en banc.
_______________________________________________________________
FOOTNOTES
1 Honorable Susan Oki Mollway, United States District Judge for the
District of Hawaii, sitting by designation.
1 In American Friends Service Comm. Corp. v. Thornburgh, 951 F.2d
957, 960 (9th Cir. 1991), we abrogated the use of the balancing test for
non-ministerial workers set forth in Pacific Press. Thus, the ministerial
exception is unaffected by American Friends.