The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESUS ALCAZAR,
Plaintiff,
and
CESAR ROSAS, No. 09-35003
Plaintiff-Appellant,
D.C. No.
2:06-cv-00281-RSM
v.
THE CORPORATION OF THE CATHOLIC OPINION
ARCHBISHOP OF SEATTLE; HORATIO
YANEZ,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
December 9, 2009—Seattle, Washington
Filed March 16, 2010
Before: Robert R. Beezer, Ronald M. Gould, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Beezer
4265
4268 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
COUNSEL
Lindsay Halm, Schroeter, Goldmark & Bender, Seattle,
Washington, for the plaintiff-appellant.
Karen A. Kalzer, Patterson Buchanan Fobes Leitch & Kalzer,
Inc., Seattle, Washington; M. Colleen Kinerk, Cable Langen-
bach Kinerk & Bauer, LLP, Seattle, Washington, for the
defendants-appellees.
OPINION
BEEZER, Circuit Judge:
“The First Amendment has erected a wall between church
and state. That wall must be kept high and impregnable. We
could not approve the slightest breach.” Everson v. Bd. of
Educ., 330 U.S. 1, 18 (1947). The interplay between the First
Amendment’s Free Exercise and Establishment Clauses
creates an exception to an otherwise fully applicable statute if
ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4269
the statute would interfere with a religious organization’s
employment decisions regarding its ministers. Bollard v. Cal.
Province of the Soc’y of Jesus, 196 F.3d 940, 944, 946-47
(9th Cir. 1999). This “ministerial exception” helps to preserve
the wall between church and state from even the mundane
government intrusion presented here. In this case, plaintiff
Cesar Rosas seeks pay for the overtime hours he worked as
a seminarian in a Catholic church in Washington. The district
court correctly determined that the ministerial exception bars
Rosas’s claim and dismissed the case on the pleadings. We
have jurisdiction under 28 U.S.C. § 1291,1 and we affirm.
I
Cesar Rosas and Jesus Alcazar were Catholic seminarians
in Mexico. The Catholic Church required them to participate
in a ministry training program at St. Mary Catholic Church in
Marysville, Washington as their next step in becoming
ordained priests. At St. Mary, Rosas and Alcazar allegedly
suffered retaliation for claiming that Father Yanez sexually
harassed Alcazar, and they eventually sued Father Yanez and
the Corporation of the Catholic Archbishop of Seattle
(“defendants”) under Title VII.2 In addition, Rosas and Alca-
1
Although this appeal involves only the Washington Minimum Wage
Act, we have jurisdiction and properly decide this case. The district court
acted within its discretion to dismiss the Washington Minimum Wage Act
claim on the merits rather than dismissing the claim under 28 U.S.C.
§ 1367(c). See Tritchler v. County of Lake, 358 F.3d 1150, 1153 (9th Cir.
2004) (noting after Title VII claims were dismissed, the Ninth Circuit still
had jurisdiction under 28 U.S.C. § 1291 because the “district court’s deci-
sion whether to retain jurisdiction over supplemental claims once the orig-
inal federal claims have been dismissed is reviewed for abuse of
discretion”). As the district court dismissed Rosas’s Title VII claim under
the ministerial exception, it acted within its discretion to dismiss the
Minimum-Wage-Act claim under the ministerial exception as well.
2
After receiving right-to-sue letters from the Equal Employment Oppor-
tunity Commission, Rosas and Alcazar sued the defendants under Title
VII of the Civil Rights Act, claiming disparate treatment based on gender
4270 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
zar sued under supplemental jurisdiction for violations of
Washington’s Minimum Wage Act for failure to pay overtime
wages. See Wash. Rev. Code § 49.46.130. The district court
dismissed the overtime wage claims on the pleadings, see
Fed. R. Civ. P. 12(c), and Rosas’s overtime wage claim is the
only issue on appeal.3
Because the judgment was on the pleadings, the pleadings
alone must be sufficient to support the district court’s judg-
ment. We thus base our decision on the very few allegations
in Rosas’s complaint. Rosas alleges as follows:
1.3 . . . The Corporation of the Catholic Archbishop
of Seattle hosted [Rosas] as [a] participant[ ] in a
training/pastoral ministry program for the priest-
hood.
....
or sexual harassment, and retaliation for complaints about such treatment.
The defendants moved to dismiss the Title VII claims and several com-
mon law claims. The district court concluded that Alcazar’s sexual-
harassment claim could proceed but dismissed Rosas’s sexual-harassment
claim because there was “not a single fact to suggest that Rosas himself
was sexually harassed.” The district court dismissed all other claims under
the First Amendment’s ministerial exception. Alcazar’s sexual-harassment
claim was later dismissed pursuant to a stipulation.
3
Rosas also argues that the district court erred in denying his motion to
amend the complaint. We review a district court’s denial of a motion to
amend a complaint for an abuse of discretion. Zivkovic v. S. Cal. Edison
Co., 302 F.3d 1080, 1087 (9th Cir. 2002). Because the same First Amend-
ment issues arise with respect to a claim under Washington’s Minimum
Wage Act for failure to pay minimum wage as the failure to pay overtime
wages, the district court correctly determined that an amendment to the
complaint would be futile. Denial of a motion to amend a complaint after
dismissing for failure to state a claim as a matter of law is appropriate
where “allegation of other facts consistent with the challenged pleading
could not possibly cure the deficiency.” Albrecht v. Lund, 845 F.2d 193,
195 (9th Cir. 1988).
ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4271
2.2 Cesar Rosas entered the seminary to become a
Catholic priest in 1995 in Mexico.
2.3 As part of [his] preparation for ordination into
the priesthood, the Catholic Church required [Rosas]
to engage in a ministerial placement outside [his]
diocese, under the supervision of a pastor of the par-
ish into which [he was] placed. The Archdiocese of
Seattle sends seminarians to Mexico and has Mexi-
can seminarians come to its parishes. [Rosas was]
placed in St. Mary Parish in Marysville, Washington
under the supervision of defendant Fr. Horatio
Yanez.
....
2.10 . . . [Rosas] was hired to do maintenance of the
church and also assisted with Mass. He . . . worked
many overtime hours he was not compensated for.
II
We review de novo a district court’s order granting judg-
ment on the pleadings. Elvig v. Calvin Presbyterian Church,
375 F.3d 951, 955 (9th Cir. 2004). We must accept as true the
allegations in Rosas’s complaint and treat as false the allega-
tions in the answer that contradict the complaint. Id.
III
[1] The Religion Clauses of the First Amendment provide
that “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof.” U.S.
Const. amend. I. These clauses require a “ministerial excep-
tion” to employment statutes if the statute’s application would
interfere with a religious institution’s employment decisions
concerning its ministers. Bollard, 196 F.3d at 944, 946-47.
Our previous cases focus on Title VII, but our analysis in
4272 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
those cases compels the conclusion that the ministerial excep-
tion analysis applies to Washington’s Minimum Wage Act as
well.4
Here, as in the Title VII context, we first examine whether
the Minimum Wage Act implicates the Free Exercise Clause.
We must balance:
(1) the magnitude of the statute’s impact upon the
exercise of the religious belief, (2) the existence of
a compelling state interest justifying the burden
imposed upon the exercise of the religious belief,
and (3) the extent to which recognition of an exemp-
tion from the statute would impede the objectives
sought to be advanced by the state.
Werft v. Desert Sw. Annual Conference of the United Method-
ist Church, 377 F.3d 1099, 1102 (9th Cir. 2004) (per curiam)
(quoting Bollard, 196 F.3d at 946). The goals of Washing-
ton’s Minimum Wage Act represent a compelling state inter-
est. Wash. Rev. Code § 49.46.005 (noting that minimum wage
is a “subject of vital and imminent concern to the people of
[Washington]”); Drinkwitz v. Alliant Techsystems, Inc., 996
P.2d 582, 586-87 (Wash. 2000). Likewise, it would impede
Washington’s goal of ensuring “minimum standards of
employment within the state of Washington” to exempt minis-
ters from Washington’s Minimum Wage Act. Wash. Rev.
Code § 49.46.005.
4
Rosas argues that the district court erred by applying the ministerial
exception, which we have recognized in the Title VII context, to this state
statutory regime without specifically balancing the Free Exercise Clause
and Establishment Clause factors. Such a balancing was unnecessary,
however, as our precedent holds that the ministerial exception applies to
state statutes that interfere with the church-minister relationship. See
Werft, 377 F.3d at 1100 n.1; Bollard, 196 F.3d at 950. We discuss the First
Amendment basis for the ministerial exception here only as an explanatory
introduction to our ministerial exception analysis.
ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4273
[2] Yet “even in pursuit of a compelling state interest, the
balancing test contemplates that some statutes may still have
such an adverse impact on religious liberty as to render judi-
cial review of a Church’s compliance with the statute a viola-
tion of the Free Exercise Clause.” Werft, 377 F.3d at 1102.
The Free Exercise Clause mandates a ministerial exception
for religious organizations in such circumstances. See id.
[3] As in the Title VII context, we next examine whether
the Washington Minimum Wage Act implicates the Establish-
ment Clause. We must determine: (1) whether the statute has
a secular legislative purpose, (2) whether “its principal or pri-
mary effect advances . . . [ ]or inhibits religion,” and (3)
whether it “foster[s] an excessive government entanglement
with religion.” Bollard, 196 F.3d at 948 (quoting Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971)). The Minimum
Wage Act has a secular purpose—to ensure minimum pay for
all Washington workers—and it neither advances nor inhibits
religion. It is the third factor, entanglement, that is at issue
here. Cf., e.g., Elvig, 375 F.3d at 956 (noting this in the Title
VII context).
[4] Entanglement has substantive and procedural compo-
nents. Bollard, 196 F.3d at 948. “On a substantive level,
applying [a] statute to the clergy-church employment relation-
ship creates a constitutionally impermissible entanglement
with religion if the church’s freedom to choose its ministers
is at stake.” Id. at 948-49. As for the procedural dimension,
the very process of civil court inquiry into the clergy-church
relationship can be sufficient entanglement. Id. at 949. “It is
not only the conclusions that may be reached by [the court]
which may impinge on rights guaranteed by the Religion
Clauses, but also the very process of inquiry leading to find-
ings and conclusions.” NLRB v. Catholic Bishop of Chi., 440
U.S. 490, 502 (1979).
[5] The Religion Clauses thus compel a ministerial excep-
tion from neutral statutory regimes that interfere with the
4274 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
church-clergy employment relationship. Because the ministe-
rial exception is constitutionally compelled, it applies as a
matter of law across statutes, both state and federal, that
would interfere with the church-minister relationship. See
Werft, 377 F.3d at 1100 n.1 (“Because the ministerial excep-
tion is based in the First Amendment, we make no distinction
between the various federal and state law claims.”); Bollard,
196 F.3d at 950. Therefore, we must analyze Rosas’s claim to
overtime wages under the ministerial-exception rubric.
IV
[6] Because the ministerial exception analysis applies to
the Washington Minimum Wage Act, Rosas’s claim is barred
if he is a “minister” and application of the statute would inter-
fere with a protected employment decision.5 Rosas argues that
the district court erred in dismissing his claim for three rea-
sons. First, he argues the ministerial exception has an addi-
tional “actual burden” requirement. Second, he contends that
requiring the Catholic Church to pay overtime wages does not
implicate a protected employment decision. And third, he
maintains that the district court could not have determined
that he was a “minister” on the pleadings. We address and
reject each of these arguments in turn.
A
[7] Rosas first argues that the district court should not have
dismissed the case absent a determination that requiring the
5
We examine here the constitutionality of Washington’s Minimum
Wage Act as applied to Rosas’s overtime claims. Federal Rule of Appel-
late Procedure 44 requires a party challenging the constitutionality of a
state statute to notify the state where the state is not a party to the proceed-
ing. Rule 44 was satisfied here when we, sua sponte, provided notice of
the constitutional question to the state and at oral argument, defendants’
counsel represented that defendants had contacted Washington’s Attorney
General and that the state had indicated that it did not intend to intervene.
See Zehner v. Trigg, 133 F.3d 459, 461 (7th Cir. 1997).
ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4275
Catholic Church to pay Rosas overtime wages would actually
burden the Church’s beliefs. Rosas cites Tony & Susan Alamo
Foundation v. Secretary of Labor to argue that “the First
Amendment does not shield religious organizations from
[employment laws] unless, at a minimum, compliance actu-
ally burdens the free exercise of religion, or results in exces-
sive government entanglement with religion.” 471 U.S. 290,
303 (1985). We have never held—nor has any other circuit—
that Alamo adds an actual burden element to the ministerial
exception. The exception was created because government
interference with the church-minister relationship inherently
burdens religion.
The Supreme Court has not explicitly addressed the minis-
terial exception, but the Court’s pre-Alamo decisions recog-
nize that the First Amendment strongly circumscribes
legislative and judicial intrusion into the internal affairs of a
religious organization. See, e.g., Serbian E. Orthodox Diocese
for the U.S. & Can. v. Milivojevich, 426 U.S. 696, 721-23
(1976). The Court holds the church-minister relationship
especially inviolate. Specifically, Kedroff v. St. Nicholas
Cathedral of Russian Orthodox Church in North America
holds that a religious organization’s freedom to select its
clergy is protected under the Free Exercise Clause. 344 U.S.
94, 116 (1952). “Because the appointment [of clergy] is a
canonical act, it is the function of the church authorities to
determine what the essential qualifications of a chaplain are
and whether the candidate possesses them.” Id. at 116 n.23
(citation omitted). Alamo deals only with lay employees, and
its holding is specifically premised on the fact that the chal-
lenged statute applied only to “commercial activities
undertaken with a ‘business purpose.’ ” Alamo, 471 U.S. at
305. The opinion therefore does not cast doubt on the
Supreme Court’s earlier decisions. Rosas’s argument under
Alamo is a lost battle.6
6
Rosas also cites several cases for the proposition that various circuit
courts have applied the labor laws to religious organizations. These cases
are irrelevant because they applied the labor laws only to lay employees
in religious institutions.
4276 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
B
Rosas’s second argument is no more availing than the first.
He argues that the decision whether to pay him overtime
wages “is not the sort of religious practice the First Amend-
ment shields from secular examination.” He reads Werft and
Bollard to apply the ministerial exception only when a statute
“would interfere with a church’s freedom to either (a) ‘choose
its ministers,’ or (b) ‘practice its beliefs.’ ” See Appellant’s
Br. at 15 (citing Bollard, 196 F.3d at 944). We reject this
argument for two separate reasons.
[8] First, this case does involve the Catholic Church’s
selection of its ministers. Rosas admits that “[a]s part of [his]
preparation for ordination into the priesthood, the Catholic
Church required [him] to engage in a ministerial placement.”
(emphasis added). This case thus quintessentially follows Bol-
lard’s explanation that the “Free Exercise Clause rationale for
protecting a church’s personnel decisions concerning its min-
isters is the necessity of allowing the church to choose its rep-
resentatives using whatever criteria it deems relevant.” 196
F.3d at 947.
[9] Second, Rosas interprets our case law too narrowly.
Bollard refers not only to the selection of ministers but more
broadly to “employment decisions regarding . . . ministers.”
Id. Bollard acknowledges:
Just as the initial function of selecting a minister is
a matter of church administration and government,
so are the functions which accompany such a selec-
tion[, including] the determination of a minister’s
salary, his place of assignment, and the duty he is to
perform in the furtherance of the religious mission of
the church.
Id. (emphases added) (quoting McClure v. Salvation Army,
460 F.2d 553, 559 (5th Cir. 1972)). The ministerial exception
ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4277
encompasses all “tangible employment actions” and disallows
lawsuits for damages based on “lost or reduced pay.” Elvig,
375 F.3d at 964, 966. Such damages would “necessarily
trench on the Church’s protected ministerial decisions.” Id. at
966.
C
[10] Finally, Rosas argues that even if a minister’s salary
is insulated from judicial scrutiny, the district court could not
have determined on the pleadings that Rosas was a minister.
He urges us to adopt a test set forth by the Fourth and D.C.
Circuits that looks at the “primary duties” of employees to
determine whether they are “ministers.” See EEOC v. Catho-
lic Univ. of Am., 83 F.3d 455, 463 (D.C. Cir. 1996); Rayburn
v. Gen. Conference of Seveth-Day Adventists, 772 F.2d 1164,
1169 (4th Cir. 1985). He argues that under that test, because
his complaint states that he “was hired to do maintenance of
the church and also assisted with Mass,” the district court
could not have found on the pleadings that Rosas’s primary
functions at St. Mary were religious. Rosas more simply
states: “On appeal, this Court need only consider whether, on
the basis of the allegation above, Mr. Rosas mostly cleaned
sinks or mostly counseled parishioners.”
We have never clearly announced a test to determine
whether an employee is a “minister” under the ministerial
exception. In Bollard, Elvig, and Werft, we assumed the plain-
tiffs were ministers. In EEOC v. Pacific Press Publishing
Ass’n, 676 F.2d 1272, 1278 (9th Cir. 1982), abrogated on
other grounds as recognized by American Friends Service
Committee Corp. v. Thornburgh, 951 F.2d 957, 960 (9th Cir.
1991), and EEOC v. Fremont Christian School, 781 F.2d
1362, 1369-70 (9th Cir. 1986), we looked at the functions of
the employees to determine that they were not ministers. But
in Pacific Press, we noted that “[t]he facts of the present case
do not require this court to examine in depth the scope of the
[ministerial] exemption,” 676 F.2d at 1278, and in Fremont,
4278 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
we similarly were not presented with an opportunity to con-
sider the ministerial exception’s scope, 781 F.2d at 1369-70.
It is true that we use a functional approach to the ministe-
rial exception, which examines the “function of the position”
rather than relying solely on ordination or “categorical notions
of who is or is not a ‘minister.’ ” Elvig, 375 F.3d at 958 n.3
(quoting EEOC v. Roman Catholic Diocese of Raleigh, 213
F.3d 795, 801 (4th Cir. 2000)). Under the functional
approach, a lay employee can act as the functional equivalent
of a minister. See, e.g., Roman Catholic Diocese of Raleigh,
213 F.3d at 805 (concluding church’s director of music minis-
try and part-time teacher at church’s school fell under minis-
terial exception). And alternatively, “[w]hile religious
organizations may designate persons as ministers for their
religious purposes free from any governmental interference,
bestowal of such a designation does not control their extra-
religious legal status.” EEOC v. Sw. Baptist Theological Sem-
inary, 651 F.2d 277, 283 (5th Cir. 1981); see Fremont, 781
F.2d at 1369-70 (determining that teachers at a parochial
school were not functionally ministers despite the defendant’s
contentions).
Although we reaffirm the importance of the functional
approach, we find the “primary duties” test problematic. If
taken literally, the primary duties test would require the dis-
trict court to examine the number of hours Rosas spent on
maintenance and the number of hours he performed religious
duties. This could create the very government entanglement
into the church-minister relationship that the ministerial
exception seeks to prevent. See Bollard, 196 F.3d at 949; see
also Catholic Bishop of Chi., 440 U.S. at 502.
[11] Moreover, the underlying premise of the primary
duties test—that a minister must “primarily” perform reli-
gious duties—is suspect. A religious organization can consti-
tutionally require its ministers or ministers-in-training to
spend a year volunteering in urban areas in the United States.
ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP 4279
Similarly, a religious organization can constitutionally require
its ministers to take a vow of poverty. So too, here, could the
Catholic Church require its candidate for the priesthood to
spend a year “mostly clean[ing] sinks” without overtime pay.
We decline Rosas’s invitation to adopt the Fourth and D.C.
Circuits “primary functions” test.
[12] Instead, we adopt a test similar to the Fifth Circuit’s
and hold that if a person (1) is employed by a religious institu-
tion, (2) was chosen for the position based “largely on reli-
gious criteria,” and (3) performs some religious duties and
responsibilities, that person is a “minister” for purposes of the
ministerial exception. See Starkman v. Evans, 198 F.3d 173,
176 (5th Cir. 1999).7
This test preserves the functional approach and recognizes
that “ministers” generally perform religious ceremonies and
duties. But it rejects the arbitrary 51% requirement implicit in
the “primary duties” test, acknowledging that secular duties
are often important to a ministry. Additionally, avoiding the
“primary” requirement enables a district court to determine
who is a “minister” earlier in the proceedings and minimizes
7
The Fifth Circuit in Starkman provided a slightly different test. Under
Starkman, to determine whether a person is a minister under the ministe-
rial exception, the Fifth Circuit considers: (1) “whether employment deci-
sions regarding the position at issue are made ‘largely on religious
criteria’ ”; (2) “whether the plaintiff was qualified and authorized to per-
form the ceremonies of the Church”; and (3) whether the plaintiff “en-
gaged in activities traditionally considered ecclesiastical or religious.” 198
F.3d at 176. Our first factor—requiring employment by a religious
institution—is implied in the Fifth Circuit’s opinion, and here we make
this factor explicit. Also, the Fifth Circuit’s second and third factors blend
together. In holding that the plaintiff in Starkman was “qualified and
authorized to perform the ceremonies of the Church” under the second
factor, the court relied on the fact that she “had several religious duties and
responsibilities,” see id., which is the Fifth Circuit’s third factor. Because
these factors merge under the Fifth Circuit’s test, we combined them in
our third factor. Thus, although we have formulated our test slightly dif-
ferently, our analysis is in line with that of the Fifth Circuit.
4280 ROSAS v. CORPORATION OF THE CATHOLIC ARCHBISHOP
the procedural entanglement of a detailed factual determina-
tion about “primary duties.” See Catholic Bishop of Chi., 440
U.S. at 502. And, of course, the district court retains the flexi-
bility to determine whether a religious institution’s designa-
tion of a person as a “minister” is mere subterfuge. See Tomic
v. Catholic Diocese of Peoria, 442 F.3d 1036, 1039 (7th Cir.
2006).
[13] The district court correctly dismissed this case on the
pleadings under this test. Federal Rule of Civil Procedure
12(c) requires the district court to accept the factual allega-
tions in the complaint as true. Rosas’s complaint demonstrates
that Rosas was a minister for purposes of the ministerial
exception. First, Rosas was participating in a “train-
ing/pastoral ministry program” at a religious institution—St.
Mary Catholic Church. Second, Rosas’s position was largely
based on religious criteria—it was a ministerial placement
open only to seminarians. Third, he performed some religious
duties by assisting in Mass. “It is without consequence that
[Rosas] also may have performed many secular duties. [He]
was not a secular employee who happened to perform some
religious duties; [he] was a spiritual employee who also per-
formed some secular duties.” Scharon v. St. Luke’s Episcopal
Presbyterian Hosps., 929 F.2d 360, 362 (8th Cir. 1991). The
district court correctly dismissed the case on the pleadings
because requiring the Catholic Church to pay overtime wages
to Rosas would interfere with the Church’s employment deci-
sions regarding its minister. Rosas’s claim is thus barred by
the Free Exercise Clause and the Establishment Clause of the
First Amendment.
AFFIRMED.