Kristen Biel v. St. James School

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISTEN BIEL, No. 17-55180

Plaintiff-Appellant,

D.C. No.

v. 2:15-cv-04248-

TJH-AS

ST. JAMES SCHOOL, A CORP., a

California non-profit corporation;

DOES, 2–50, inclusive; ST. JAMES ORDER

CATHOLIC SCHOOL, a California non-

profit corporation; DOE 1,

Defendants-Appellees.

Filed June 25, 2019

Before: D. Michael Fisher, * Paul J. Watford,

and Michelle T. Friedland, Circuit Judges.

Order;

Dissent by Judge R. Nelson

*

The Honorable D. Michael Fisher, United States Circuit Judge for

the U.S. Court of Appeals for the Third Circuit, sitting by designation.

2 BIEL V. ST. JAMES SCHOOL

SUMMARY **

Employment Discrimination

The panel denied a petition for panel rehearing and, on

behalf of the court, a petition for rehearing en banc following

the panel’s opinion reversing the district court’s summary

judgment in an employment discrimination action under the

Americans with Disabilities Act.

In its opinion, the panel held that the First Amendment’s

ministerial exception to generally applicable employment

laws did not bar a teacher’s claim against the Catholic

elementary school that terminated her employment.

Dissenting from the denial of rehearing en banc, Judge

R. Nelson, joined by Judges Bybee, Callahan, Bea,

M. Smith, Ikuta, Bennett, Bade, and Collins, wrote that the

panel’s opinion embraced the narrowest construction of the

ministerial exception, split from the consensus of other

circuits that the employee’s ministerial function should be

the key focus, and conflicted with the Supreme Court’s

decision in Hosanna-Tabor Evangelical Lutheran Church &

Sch. v. E.E.O.C., 565 U.S. 171 (2012).

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

BIEL V. ST. JAMES SCHOOL 3

ORDER

The panel has voted unanimously to deny the petition for

panel rehearing. Judge Fisher recommends granting the

petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc. A judge of the court requested a vote on

en banc rehearing. The matter failed to receive a majority of

votes of non-recused active judges in favor of en banc

consideration. Fed. R. App. P. 35(f).

The petition for rehearing and the petition for rehearing

en banc are DENIED.

R. NELSON, Circuit Judge, with whom BYBEE,

CALLAHAN, BEA, M. SMITH, IKUTA, BENNETT,

BADE, and COLLINS, Circuit Judges, join, dissenting from

the denial of rehearing en banc:

By declining to rehear this case en banc, our court

embraces the narrowest construction of the First

Amendment’s “ministerial exception” and splits from the

consensus of our sister circuits that the employee’s

ministerial function should be the key focus. The panel

majority held that Kristen Biel, a fifth-grade teacher who

taught religion and other classes at a Catholic school, was

not a “minister” because the circumstances of her

employment were not a carbon copy of the plaintiff’s

circumstances in Hosanna-Tabor Evangelical Lutheran

Church & School v. E.E.O.C., 565 U.S. 171, 196 (2012). See

Biel v. St. James Sch., 911 F.3d 603 (9th Cir. 2018). The

panel majority’s approach conflicts with Hosanna-Tabor,

decisions from our court and sister courts, decisions from

state supreme courts, and First Amendment principles. And

4 BIEL V. ST. JAMES SCHOOL

it poses grave consequences for religious minorities

(collectively, a substantial plurality of religious adherents in

this circuit) whose practices don’t perfectly resemble the

Lutheran tradition at issue in Hosanna-Tabor.

This is precisely the case warranting en banc review. We

adopted the ministerial exception en banc prior to Hosanna-

Tabor. See Alcazar v. Corp. of the Catholic Archbishop of

Seattle, 627 F.3d 1288 (9th Cir. 2010) (en banc). The

ministerial exception “is undeniably an issue of exceptional

importance” because its denial “portends serious

consequences for one of the bedrock principles of our

country’s formation—religious freedom.” Bollard v. Cal.

Province of the Soc’y of Jesus, 211 F.3d 1331, 1333 (9th Cir.

2000) (Wardlaw, J., joined by Kozinski, O’Scannlain, and

Kleinfeld, JJ., dissenting from denial of rehearing en banc).

Since then, the Supreme Court unanimously upheld the

ministerial exception in Hosanna-Tabor, suggesting its

application in a case like this. Three Justices—Thomas,

Alito, and Kagan—filed or joined two separate concurrences

specifically proposing legal tests under which the ministerial

exception plainly applies here (and no Justice has proposed

a test undermining its application here). And virtually all

our sister courts—and state supreme courts—adopted the

ministerial exception in similar cases.

In this case, five different amici—coalitions of

religiously diverse organizations and law professors—urge

this court to correct its legal error. As amici explain, the

panel majority’s approach trivializes the significant religious

function performed by Catholic school teachers. This

court’s narrow construction of the exception threatens the

autonomy of minority religious groups, like amici, “for

whom religious education is a critical means of propagating

the faith, instructing the rising generation, and instilling a

BIEL V. ST. JAMES SCHOOL 5

sense of religious identity.” Brief of Gen. Conference of

Seventh-Day Adventists, Int’l Soc. for Krishna

Consciousness, Inc., Jewish Coalition for Religious Liberty,

and Shaykh Hamza Yusuf as Amici Curiae in Support of

Rehearing and Rehearing En Banc at 2.

In light of all this, where does our court now stand on the

ministerial exception? Despite a unanimous Supreme Court

opinion upholding the exception, we are weaker, not

stronger, in applying it. Not once, not twice, but three times

now in the last two years, we have departed from the plain

direction of the Supreme Court and reversed our district

courts’ faithful application of Supreme Court precedent. See

also Puri v. Khalsa, 844 F.3d 1152 (9th Cir. 2017);

Morrissey-Berru v. Our Lady of Guadalupe Sch., No. 17-

56624, 2019 WL 1952853 (9th Cir. Apr. 30, 2019)

(unpublished). And in each successive case, we have

excised the ministerial exception, slicing through

constitutional muscle and now cutting deep into core

constitutional bone.

In turning a blind eye to St. James’s religious liberties

protected by both Religion Clauses, we exhibit the very

hostility toward religion our Founders prohibited and the

Supreme Court has repeatedly instructed us to avoid.

Accordingly, I dissent.

I

The ministerial exception is well-entrenched in our

constitutional framework. “The Supreme Court has long

recognized religious organizations’ broad right to control the

selection of their own religious leaders.” Puri, 844 F.3d

at 1157. In 2012, a unanimous Supreme Court formally

recognized a “ministerial exception” “grounded in the First

Amendment[] that precludes application of [employment-

6 BIEL V. ST. JAMES SCHOOL

discrimination] legislation to claims concerning the

employment relationship between a religious institution and

its ministers.” Hosanna-Tabor, 565 U.S. at 188. In doing

so, the Court reaffirmed “that it is impermissible for the

government to contradict a church’s determination of who

can act as its ministers.” Id. at 185.

A

I begin with the text. “Congress shall make no law

respecting an establishment of religion, or prohibiting the

free exercise thereof . . . .” U.S. Const. amend. I. The

Establishment Clause and Free Exercise Clause have been

said to “often exert conflicting pressures,” Cutter v.

Wilkinson, 544 U.S. 709, 719 (2005), but they speak in

harmony to ensure dual protections for religious freedom.

A troubled history of religious persecution led a young

United States to break from the familiarities of living under

the established Church of England. See Hosanna-Tabor,

565 U.S. at 182–83 (“Seeking to escape the control of the

national church, the Puritans fled to New England, where

they hoped to elect their own ministers and establish their

own modes of worship.” (citations omitted)). Creating a

Federal Government with powers “few and defined,” see

The Federalist No. 45 (James Madison), the Founders

confirmed that the new government, unlike the English

Crown, would have no role in filling ecclesiastical offices.

See Hosanna-Tabor, 565 U.S. at 184.

To avoid entangling government and religion, our

government is prohibited from deciding matters inherently

ecclesiastical. See Watson v. Jones, 80 U.S. (13 Wall.) 679,

730–31 (1872). While the Establishment Clause expressly

limits the government’s power, the Free Exercise Clause

also affirmatively protects religious institutions, which are

BIEL V. ST. JAMES SCHOOL 7

“independen[t] from secular control or manipulation,” as

they have the “power to decide for themselves, free from

state interference, matters of church government as well as

those of faith and doctrine.” Kedroff v. Saint Nicholas

Cathedral of Russian Orthodox Church in N. Am., 344 U.S.

94, 116 (1952). This includes the “[f]reedom to select the

clergy.” Id. By interfering with a religious institution’s

freedom to select those church personnel who promote its

faith and mission, the government exceeds its delegated

authority and infringes on that institution’s right to free

exercise of religion.

The Founders understood these First Amendment

protections were so fundamental that enshrining them in the

Constitution outweighed the ancillary costs. These costs, in

some cases, are not insignificant. They include exemptions

for religious organizations from some laws protecting

society’s most vulnerable from employment discrimination.

See Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e et seq. For example, after the Salvation Army

terminated one of its ministers, the employee sued, alleging

a violation of Title VII. See McClure v. Salvation Army,

460 F.2d 553 (5th Cir. 1972). The Fifth Circuit held the First

Amendment barred the Title VII claim, reasoning that

“[m]atters touching” “[t]he relationship between an

organized church and its ministers . . . must necessarily be

recognized as of prime ecclesiastical concern” because a

church’s “minister is the chief instrument by which [it] seeks

to fulfill its purpose.” Id. at 558–59. In the decades since,

every Circuit to address the issue, including this one,1

unanimously recognized this “ministerial exception.”

1

See Werft v. Desert Sw. Annual Conference, 377 F.3d 1099, 1101–

04 (9th Cir. 2004).

8 BIEL V. ST. JAMES SCHOOL

B

In Hosanna-Tabor, the Supreme Court followed the

uniform approach of the Courts of Appeals and held the

ministerial exception bars employment discrimination suits

by the group’s ministers. 565 U.S. at 190. The case involved

an employment discrimination claim brought by Cheryl

Perich, a former elementary teacher, against her employer,

Hosanna-Tabor Evangelical Lutheran Church and School.

Id. at 177–79. Perich was first employed as a “lay teacher”

and later became a “called teacher.” Id. at 178. She taught

kindergarten for four years and fourth grade for one year,

which involved teaching a variety of subjects, including

religion. Id. Specifically, Perich “taught a religion class

four days a week, led the students in prayer and devotional

exercises each day, and attended a weekly school-wide

chapel service. [She] led the chapel service herself about

twice a year.” Id. After Perich was diagnosed with

narcolepsy and terminated, the EEOC sued the school, and

Perich intervened, alleging violations of the Americans with

Disabilities Act (“ADA”), 104 Stat. 327, 42 U.S.C. § 12101

et seq. (1990). Id. at 180.

The Court held the ministerial exception “ensures that

the authority to select and control who will minister to the

faithful—a matter ‘strictly ecclesiastical’—is the church’s

alone.” Id. at 194–95 (internal citation omitted) (quoting

Kedroff, 344 U.S. at 119). The Court explained:

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 employment decision. Such action

interferes with the internal governance of the

church, depriving the church of control over

the selection of those who will personify its

BIEL V. ST. JAMES SCHOOL 9

beliefs. By imposing an unwanted minister,

the state infringes the Free Exercise Clause,

which protects a religious group’s right to

shape its own faith and mission through its

appointments. According the state the power

to determine which individuals will minister

to the faithful also violates the Establishment

Clause, which prohibits government

involvement in such ecclesiastical decisions.

Id. at 188–89.

The Court unanimously held the ministerial exception

barred Perich’s suit. Although Perich was an elementary

school teacher, the Court agreed with every Court of Appeals

to have considered the question that the “exception is not

limited to the head of a religious congregation.” Id. at 190.

However, the Court was “reluctant . . . to adopt a rigid

formula for deciding when an employee qualifies as a

minister.” Id. Instead, it found that “all the circumstances

of [Perich’s] employment,” supported “that the exception

covers Perich.” Id.

The Court discussed four “considerations” which

supported its conclusion that Perich fell within the

exception’s scope: “the formal title given Perich by the

Church, the substance reflected in that title, her own use of

that title, and the important religious functions she

performed for the Church.” Id. at 192. Each of these

separate considerations evidenced Perich’s ministerial role,

including that her “job duties reflected a role in conveying

the Church’s message and carrying out its mission.” Id.

at 192. Thus, “the interest of religious groups in choosing

who will preach their beliefs, teach their faith, and carry out

10 BIEL V. ST. JAMES SCHOOL

their mission” warranted application of the exception to

Perich. Id. at 196.

While each of the four considerations confirmed Perich

was a minister, the Court’s discussion of them did not create

a test for courts to use to decide whether an employee was a

“minister” under the exception. The Court specifically

reserved the ministerial exception’s legal floor: “We express

no view on whether someone with Perich’s duties would be

covered by the ministerial exception in the absence of the

other considerations we have discussed.” Id. at 193

(emphasis added).

Justice Alito, joined by Justice Kagan, however, did

express a view on this issue: “[C]ourts should focus on the

function performed by persons who work for religious

bodies.” Id. at 198 (Alito, J., concurring) (emphasis added). 2

This “functional consensus” was widespread before

Hosanna-Tabor and has remained dominant afterward. 3 As

such, nothing in the opinion “should . . . be read to upset

[the] consensus” among Courts of Appeals (including our

own 4) that took this “functional approach.” Id. at 204. The

concurrence also cautioned it would be a mistake, given the

country’s religious diversity, “if the term ‘minister’ or the

2

Justice Thomas went further, noting the Religion Clauses require

courts “to defer to a religious organization’s good-faith understanding of

who qualifies as its minister.” Id. at 196 (Thomas, J., concurring).

3

See Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 226 (6th

Cir. 2007) (referring to function as the “general rule”), abrogated in part

by Hosanna-Tabor, 565 U.S. at 195 n.4; infra Section IV.A.

4

“The Ninth Circuit too has taken a functional approach, just

recently reaffirming that ‘the ministerial exception encompasses more

than a church’s ordained ministers.’” Hosanna-Tabor, 565 U.S. at 204

(Alito, J., concurring) (quoting Alcazar, 627 F.3d at 1291).

BIEL V. ST. JAMES SCHOOL 11

concept of ordination were viewed as central to the

important issue of religious autonomy that is presented in

cases like this one.” Id. at 198.

II

The panel majority mistakes Hosanna-Tabor to create a

resemblance-to-Perich test using the “four considerations”

which the Supreme Court found evidenced Perich’s

ministerial role. Because Biel’s circumstances resembled

Perich’s in only one of the four areas, the panel majority held

erroneously that the exception did not apply.

Biel taught fifth grade at St. James Catholic School in

Torrance. Biel, 911 F.3d at 605. She was responsible for

teaching her students all academic subjects and religion, to

which she was required to dedicate a minimum of 200

minutes each week. Biel v. St. James Sch., No. 15-04248,

2017 WL 5973293, at *1 (C.D. Cal. Jan. 24, 2017). She

taught religion at least four days per week, using a

curriculum and textbook grounded in the Catholic Faith and

in accordance with the Church’s teaching. Biel, 911 F.3d

at 605. Biel also supervised and joined her students during

twice-daily prayer led by students and escorted them to a

school-wide monthly mass. Id.

Biel’s signed employment contract required her to work

toward St. James’s “overriding commitment” to the

“doctrines, laws, and norms” of the Catholic Church, and to

“model, teach, and promote behavior in conformity to the

teaching of the Roman Catholic Church.” Id. It also stated

the school’s mission: “to develop and promote a Catholic

School Faith Community within the philosophy of Catholic

education as implemented at [St. James], and the doctrines,

laws, and norms of the Catholic Church.” Id. at 612 (Fisher,

J., dissenting). The school’s faculty handbook further

12 BIEL V. ST. JAMES SCHOOL

required that teachers “participate in the Church’s mission”

of providing “quality Catholic education to . . . students,

educating them in academic areas and in . . . Catholic faith

and values.” Id. at 605–06 (majority op.).

At Biel’s only formal teaching evaluation, the school’s

principal, Sister Mary Margaret, measured Biel’s

performance in both secular and religious aspects. Id. at 606.

The evaluation was positive, though noting areas for

improvement. Id. Less than six months later, Biel learned

she had breast cancer. Id. She told the school she would

miss work to undergo surgery and chemotherapy. Id.

A few weeks later, Biel was informed her teaching

contract would not be renewed for the next academic year.

Id. Biel sued St. James, alleging her termination violated the

ADA. The district court determined the ministerial

exception applied and granted summary judgment in favor

of St. James. Biel, 2017 WL 5973293, at *3.

Our court reversed in a 2–1 decision. Biel, 911 F.3d 603.

The panel majority compared Biel’s circumstances with

Perich’s under each of the four “considerations,” but

concluded the only similarity between Biel and Perich was

that “they both taught religion in the classroom.” Id. at 609.

Contrasting Biel and Perich, the majority determined Biel

had “none of Perich’s credentials, training, or ministerial

background,” St. James did not “hold Biel out as a minister

by suggesting to its community that she has special expertise

in Church doctrine, values, or pedagogy beyond that of any

practicing Catholic,” id. at 608, and “nothing in the record

indicates that Biel considered herself a minister or presented

herself as one to the community,” id. at 609.

Because, “[a]t most, only one of the four Hosanna-Tabor

considerations weigh[ed] in St. James’s favor,” the panel

BIEL V. ST. JAMES SCHOOL 13

majority held the ministerial exception did not apply. Id.

at 610. The majority refused “to exempt from federal

employment law all those who intermingle religious and

secular duties but who do not ‘preach [their employers’]

beliefs, teach their faith, . . . carry out their mission . . . [and]

guide [their religious organization] on its way.’” Id. at 611

(quoting Hosanna-Tabor, 565 U.S. at 196). The panel

majority “decline[d] St. James’s invitation to be the first”

federal court of appeals to apply “the ministerial exception

in a case that bears so little resemblance to Hosanna-Tabor.”

Id. at 610.

III

When considering the “totality of the circumstances,” the

panel majority converted the four considerations discussed

by the Supreme Court into a comparative test: “Only after

describing all of these aspects of Perich’s position did the

Supreme Court hold . . . that Perich was a minister covered

by the ministerial exception.” Id. at 608 (emphasis added)

(internal quotation marks omitted). Under the panel

majority’s test, a religious organization must show that its

employee served a significant religious function and the

presence of at least one additional “consideration” to receive

protection under the ministerial exception.

But Hosanna-Tabor mandates no such requirement. It

did not establish a test or set any legal floor that must be met

for the exception to apply. It held only that the exception

exists, applies to ADA claims, and covered Perich.

Hosanna-Tabor, 565 U.S. at 190. The panel majority

embraced the narrowest reading of the ministerial exception

and diverged from the function-focused approach taken by

our court previously, our sister courts, and numerous state

supreme courts.

14 BIEL V. ST. JAMES SCHOOL

As our court recently observed, “The Supreme Court has

provided some guidance on the circumstances that might

qualify an employee as a minister within the meaning of the

ministerial exception.” Puri, 844 F.3d at 1160 (emphasis

added). Other circuits agree. See Grussgott v. Milwaukee

Jewish Day Sch., Inc., 882 F.3d 655, 658 (7th Cir. 2018),

cert. denied, 139 S. Ct. 456 (2018) (“Consequently,

Grussgott’s argument focuses on differentiating herself from

the teacher in that case, and she is correct that her role is

distinct from the called teacher’s in Hosanna-Tabor. But the

Supreme Court expressly declined to delineate a ‘rigid

formula’ for deciding when an employee is a minister.”

(citing Hosanna-Tabor, 565 U.S. at 190)); Fratello v.

Archdiocese of N.Y., 863 F.3d 190, 204–05 (2d Cir. 2017)

(“Hosanna-Tabor instructs only as to what we might take

into account as relevant, including the four considerations on

which it relied; it neither limits the inquiry to those

considerations nor requires their application in every case.”);

Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 176–

77 (5th Cir. 2012) (“Any attempt to calcify the particular

considerations that motivated the Court in Hosanna-Tabor

into a ‘rigid formula’ would not be appropriate . . . .

Application of the exception . . . does not depend on a

finding that [the employee] satisfies the same considerations

that motivated the Court to find that Perich was a minister

within the meaning of the exception.”).

Ignoring the warnings of Justices Alito and Kagan (and

Justice Thomas), the panel majority found that because three

of the considerations—all of which relate to Biel’s title—

were not present, the exception did not apply. See Biel,

911 F.3d at 607–09. The only area in which it did find Biel

and Perich similar was in the religious function each

performed. Yet this similarity is particularly significant to

religious groups whose beliefs and practices may render the

BIEL V. ST. JAMES SCHOOL 15

other three considerations less relevant, or not relevant at all.

Such is the case here.

Comparing Biel’s title to Perich’s, the panel majority

reasoned, “it cannot be said that [Biel’s title of] Grade 5

Teacher ‘conveys a religious—as opposed to secular—

meaning.’” Biel, 911 F.3d at 608–09 (quoting Conlon v.

InterVarsity Christian Fellowship, 777 F.3d 829, 834–35

(6th Cir. 2015)). Unlike in Biel, Perich’s title in Hosanna-

Tabor was particularly relevant because, as the Court noted,

the Sixth Circuit “failed to see any relevance in the fact that

Perich was a commissioned minister.” Hosanna-Tabor,

565 U.S. at 192–93. Clarifying that her title “by itself, does

not automatically ensure coverage,” the Court explained that

“the fact that an employee has been ordained or

commissioned as a minister is surely relevant.” Id. at 193.

In this discussion, the Court did not suggest that the lack of

a title with religious significance suggests that an employee

does not hold a ministerial role. See Fratello, 863 F.3d

at 207 (“Nor would plainly secular titles (by themselves)

prevent application of the ministerial exception. We think

the substance of the employees’ responsibilities in their

positions is far more important.”). Indeed, requiring a

religious group to adopt a formal title or hold out its

ministers in a specific way is the very encroachment into

religious autonomy the Free Exercise Clause prohibits,

precisely because such a demand for ecclesiastical titles

inherently violates the Establishment Clause.

Requiring religious titles is particularly problematic

when religious organizations do not bestow such titles on

some (or any) of their ministers yet clearly understand the

employee’s role to carry religious significance. This is why

“a recognized religious mission [which] underlie[s] the

description of the employee’s position” is also “surely

16 BIEL V. ST. JAMES SCHOOL

relevant,” just as an employee’s title or ordination may be.

Hosanna-Tabor, 565 U.S. at 193. Title may cut one way

because “an employee is more likely to be a minister if a

religious organization holds the employee out as a minister

by bestowing a formal religious title.” Puri, 844 F.3d

at 1160 (emphasis added). Lack of a religious title does not

suggest the opposite.

It’s not surprising that Biel’s title, as a Catholic school

teacher, differed from Perich’s title, as a Lutheran school

teacher. “Minister,” although commonly used in Protestant

denominations, is “rarely if ever used in this way by

Catholics, Jews, Muslims, Hindus, or Buddhists.” Hosanna-

Tabor, 565 U.S. at 198 (Alito, J., concurring) (emphasis

added). Indeed, focus on Biel’s title “trivialized how the

distinct Catholic mission of integral formation permeated

everything Ms. Biel did as a teacher” and “downplays Ms.

Biel’s function as a Catholic teacher.” Brief for Nat’l

Catholic Educ. Ass’n as Amicus Curiae in Support of

Rehearing and Rehearing En Banc at 4.

Catholicism contains a rich history replete with evidence

that its teachers play an essential role in its religious mission,

yet it doesn’t always embrace a formal title for such teachers

as Hosanna-Tabor did with Perich. See generally id. at 5–9.

Because of this, St. James thoroughly explained in its

Motion for Summary Judgment why the role of the teacher

comes with “duties and responsibilities” to be “performed

within the School’s overriding commitment to developing its

faith” by incorporating “Catholic values and traditions

throughout all subject areas, not just during the Religion

course.” St. James’s Mot. For Summ. J. at 3–4, Biel v. St.

James Sch., No. 15-04248, ECF No. 65. Biel, as a teacher,

played an “instrumental role in furthering and promoting the

Catholic faith as part of her daily job duties.” Id. at 13.

BIEL V. ST. JAMES SCHOOL 17

Nor is it surprising that a Catholic school’s practices

regarding ordination differ. As with title, religious training

may be relevant, as it was in the Lutheran context. But other

religious groups don’t always require similar formal training

yet clearly bestow ministerial roles. The concept of

ordination—although recognized by some, and by some

only as to certain offices—“has no clear counterpart” in

others. 5 Hosanna-Tabor, 565 U.S. at 198 (Alito, J.,

concurring). The “Catholic Church has repeatedly

emphasized that the growth of lay Catholic teachers—those

who are succeeding roles previously held by religious

orders, sisters, brothers, and clergy—does not change a

Catholic teacher’s responsibilities.” Brief of Nat’l Catholic

Educ. Ass’n as Amicus Curiae in Support of Rehearing and

Rehearing En Banc at 14; see also id. at 8–9 & n.2 (“only

2.8% of Catholic full-time professional staff are either

members of the clergy or religious orders”). These diverse

religious practices are why Justices Alito and Kagan

cautioned against emphasis on title.

Additionally, courts are ill-equipped to gauge the

religious significance of titles or the sufficiency of training.

Biel’s title may appear to carry little or no religious

significance to a court unfamiliar with the customs of

Catholic education, but Biel’s employment at St. James had

significant religious substance. See Biel, 911 F.3d at 612–

13, 616–18 (Fisher, J., dissenting) (documents, “including

her employment contract, a performance review, and the

faculty handbook,” all supported applying the exception).

Thus, when noting that Biel’s title of “teacher” cannot be

5

For example, Jehovah’s Witnesses “consider all” adherents to be

“ministers,” while in Islam, “every Muslim can perform the religious

rites, so there is no class or profession of ordained clergy.” Hosanna-

Tabor, 565 U.S. at 202 nn.3–4 (Alito, J., concurring) (citations omitted).

18 BIEL V. ST. JAMES SCHOOL

said to convey a religious meaning, the panel majority, just

like the now-reversed Sixth Circuit in Hosanna-Tabor,

overlooks the “recognized religious mission” which

“underlie[s] the description of the employee’s position.”

Hosanna-Tabor, 565 U.S. at 193.

Furthermore, ignoring this history and these practices

risks the very Establishment Clause violation the ministerial

exception was intended to prevent. As Justice Thomas

explains:

Our country’s religious landscape includes

organizations with different leadership

structures and doctrines that influence their

conceptions of ministerial status. The

question whether an employee is a minister is

itself religious in nature, and the answer will

vary widely. Judicial attempts to fashion a

civil definition of “minister” through a

bright-line test or multi-factor analysis risk

disadvantaging those religious groups whose

beliefs, practices, and membership are

outside of the “mainstream” or unpalatable to

some.

Id. at 197 (Thomas, J., concurring).

Other courts have rightly considered these differences.

For example, the Massachusetts Supreme Judicial Court

applied the ministerial exception to a teacher at a Jewish

school, although “she was not a rabbi, was not called a rabbi,

and did not hold herself out as a rabbi” on a record “silent as

to the extent of her religious training.” Temple Emanuel of

Newton v. Mass. Comm’n Against Discrim., 975 N.E.2d 433,

443 (Mass. 2012).

BIEL V. ST. JAMES SCHOOL 19

Finally, the panel majority also contrasted how Perich

held herself out as a minister, noting “nothing in the record

indicates that Biel considered herself a minister or presented

herself as one to the community.” Biel, 911 F.3d at 609.

That Perich held herself out as a minister merely evidenced

her ministerial role; it did not institute a requirement that

others must hold themselves out as ministers to qualify for

the exception. That is one way in which an employee is

“more likely to be considered a minister.” Puri, 844 F.3d

at 1160.

Biel’s religious duties are far more relevant than whether

she personally felt she was a minister. See Grussgott,

882 F.3d at 660 (“Grussgott’s opinion does not dictate what

activities the school may genuinely consider to be

religious.”). Presumably, any plaintiff who wishes to avoid

the application of the exception will emphasize why she did

not consider herself a minister.

In sum, as title, training, and how an employee holds

herself out differ widely depending on tradition, courts have

rightly focused on the fourth consideration—function.

IV

The panel majority rejected a function-focused approach

embraced by all other circuits, including our own, before and

after Hosanna-Tabor, in favor of its resemblance test.

Despite Biel’s religious function, the panel majority refused

to apply the exception because it determined the other

considerations were not present. 6 Biel’s significant religious

6

However, Judge Fisher in dissent persuasively found two of the

“considerations” weighed in favor of the exception. See Biel, 911 F.3d

at 616–20, 622 (concluding the ministerial exception applied because of

20 BIEL V. ST. JAMES SCHOOL

function, as a Catholic school teacher who teaches religion,

demonstrates why the exception applies.

A

The panel majority mistakes Hosanna-Tabor to hold that

the ministerial exception cannot apply based on important

religious functions alone, despite the Court’s express

reservation of the question. See Biel, 911 F.3d at 609

(rejecting that the exception applies based on function and

“[i]f it did, most of the analysis . . . would be irrelevant

dicta”); id. at 610 (“the other considerations that guided the

reasoning in Hosanna-Tabor and its progeny are not present

here”).

Our court should have adhered to circuit precedent and

followed the lead of our sister circuits by focusing on “the

function performed by persons who work for religious

bodies.” Hosanna-Tabor, 565 U.S. at 198 (Alito, J.,

concurring). The majority’s departure from the functional

approach is even more surprising because the court has

previously placed more emphasis on function post-

Hosanna-Tabor.

[A]n employee whose “job duties reflect a

role in conveying the Church’s message and

carrying out its mission” is likely to be

covered by the exception, even if the

employee devotes only a small portion of the

workday to strictly religious duties and

substance reflected in her title and important religious functions she

performs).

BIEL V. ST. JAMES SCHOOL 21

spends the balance of her time performing

secular functions.

Puri, 844 F.3d at 1160 (internal brackets omitted) (quoting

Hosanna-Tabor, 565 U.S. at 192). Teachers, like Biel, at

mission-driven schools, like St. James, convey the Church’s

message and carry out its mission. In this court, this renders

the employee “likely to be covered by the exception.” Id.

By allowing the panel majority’s decision to stand, we have

allowed a panel to contradict our precedent in a way that

strips the exception of its core constitutional purpose.

After Hosanna-Tabor, other circuits have placed greater

emphasis on an employee’s function. See Lee v. Sixth Mount

Zion Baptist Church of Pittsburgh, 903 F.3d 113, 122 n.7 (3d

Cir. 2018) (“[T]he ministerial exception applies to any

claim, the resolution of which would limit a religious

institution’s right to choose who will perform particular

spiritual functions.”) (internal quotation marks omitted);

Grussgott, 882 F.3d at 661 (finding teacher fell within

exception, noting school intended plaintiff to take on a

religious role including functions not part of a teacher’s job

at a secular school); Fratello, 863 F.3d at 205 (“Where, as

here, the four considerations are relevant in a particular case,

‘courts should focus’ primarily ‘on the function[s]

performed by persons who work for religious bodies.’”

(quoting Hosanna-Tabor, 565 U.S. at 198 (Alito, J.,

concurring))); Cannata, 700 F.3d at 177 (applying the

exception because plaintiff performed important “function”

that “furthered the mission of the church and helped convey

its message”).

Similarly, state supreme courts have emphasized the

importance of function. See Temple Emanuel of Newton,

975 N.E.2d at 443 (holding function alone sufficed to apply

22 BIEL V. ST. JAMES SCHOOL

the exception); Kirby v. Lexington Theological Seminary,

426 S.W.3d 597, 613 (Ky. 2014) (courts should focus on the

“actual acts or functions conducted by the employee”).

B

The ministerial exception protects the “interest of

religious groups in choosing who will preach their beliefs,

teach their faith, and carry out their mission.” Hosanna-

Tabor, 565 U.S. at 196. It “insulates a religious

organization’s ‘selection of those who will personify its

beliefs.’” Puri, 844 F.3d at 1159 (quoting Hosanna-Tabor,

565 U.S. at 188). Justices Alito and Kagan found the

ministerial exception “should apply to any ‘employee’ who

leads a religious organization, conducts worship services or

important religious ceremonies or rituals, or serves as a

messenger or teacher of its faith.” Hosanna-Tabor, 565 U.S.

at 199 (Alito, J., concurring) (emphasis added). On many

occasions, the Court has recognized the “critical and unique

role of the teacher in fulfilling the mission of a church-

operated school.” NLRB v. Catholic Bishop of Chi., 440 U.S.

490, 501 (1979); see also Lemon v. Kurtzman, 403 U.S. 602,

617 (1971) (“Religious authority necessarily pervades [the

Catholic] school system.”).

Catholic school teachers certainly hold this special role.

See Brief of Nat’l Catholic Educ. Ass’n as Amicus Curiae in

Support of Rehearing and Rehearing En Banc at 5–9

(schools and teachers lay at the core of the church’s

ministry). According to the Vatican, the Catholic Church

founded schools “because she considers them as a privileged

means of promoting the formation of the whole man, since

the school is a centre in which a specific concept of the

world, of man, and of history is developed and conveyed.”

Id. at 5 (quoting The Sacred Congregation for Catholic

Education, The Catholic School #8(5) (1977)). Teachers of

BIEL V. ST. JAMES SCHOOL 23

religion at religious schools, regardless of title, training, or

official ordination, effectuate this purpose and carry out the

Church’s mission by ministering to students. 7

At St. James, teachers “preach” and “teach” the school’s

Catholic beliefs and faith. By instructing new generations,

teachers carry out the school’s mission, precisely what a

unanimous Supreme Court found relevant. Hosanna-Tabor,

565 U.S. at 192. Teachers personify the beliefs of the school

and serve a crucial role in providing a holistic education to

students. Biel’s religious duties and function as a teacher at

St. James show she was “entrusted with teaching and

conveying the tenets of the [Catholic] faith to the next

generation” and played a “substantial role in conveying the

Church’s message and carrying out its mission.” Id. at 200,

204 (Alito, J., concurring) (internal quotation marks

omitted). Employment decisions relating to those who serve

this function is precisely what the ministerial exception is

supposed to protect.

7

The religious nature of teachers is not unique to Catholicism. See

Brief for Church of God in Christ, Inc. and Union of Orthodox Jewish

Congregations of Am. as Amicus Curiae in Support of Rehearing and

Rehearing En Banc at 1, 14 (parochial K–12 schools teach “religious and

secular studies in a holistic environment”; a central Jewish prayer repeats

the Biblical directive to “[t]ake to heart these instructions with which

[God] charges you this day” and to “[i]mpress them upon your children”

(quoting Worship Services: V’ahavta (Read), ReformJudaism.org,

https://tinyurl.com/yddle9l6)); Brief for Gen. Conference of Seventh-

day Adventists, Int’l Soc’y for Krishna Consciousness, Inc., Jewish

Coal. for Religious Liberty, and Shaykh Hamza Yusuf as Amicus Curiae

in Support of Rehearing and Rehearing En Banc at 2 (“[R]eligious

education is a critical means of propagating the faith, instructing the

rising generation, and instilling a sense of religious identity” for minority

religious groups like amici.).

24 BIEL V. ST. JAMES SCHOOL

Our sister circuits pay closer attention to function,

particularly in religious educational settings like the one

here. See, e.g., Grussgott, 882 F.3d at 657 (Jewish Day

School teacher’s role fell within “ministerial exception as a

matter of law,” given “[h]er integral role in teaching her

students about Judaism and the school’s motivation in hiring

her, in particular, demonstrate that her role furthered the

school’s religious mission”); Fratello, 863 F.3d at 208–09

(former principal at Catholic school was a minister,

emphasizing “function” was “the most important

consideration”); Conlon, 777 F.3d at 837 (finding spiritual

director at Christian college educational group a minister).

Indeed, religious groups will have differing “views on

exactly what qualifies as an important religious position, but

it is nonetheless possible to identify a general category of

‘employees’ whose functions are essential to the

independence of practically all religious groups.” Hosanna-

Tabor, 565 U.S. at 200 (Alito, J., concurring). Among such

groups are “those who are entrusted with teaching and

conveying the tenets of the faith to the next generation.” Id.

Biel was certainly entrusted with this duty.

The panel majority’s minimized view of the religious

significance of Biel’s role as a teacher stands in stark

contrast to this court’s view of the role of teachers in secular

contexts. This court recently expounded on the instrumental

role of a high school football coach—a role “akin to being a

teacher”—as his “multi-faceted” job “entailed both teaching

and serving as a role model and moral exemplar,” because

of which he had a “duty to use his words and expressions to

‘instill[ ] values.’” Kennedy v. Bremerton Sch. Dist.,

869 F.3d 813, 825–27 (9th Cir. 2017), cert. denied, 139 S.

Ct. 634 (2019) (citations omitted). If true at a secular public

school, how much more significant the role of an elementary

BIEL V. ST. JAMES SCHOOL 25

school teacher at a Catholic school who teaches religion on

a daily basis?

Religion teaches morals and instills values, and “[t]he

various characteristics of the [parochial] schools make them

a powerful vehicle for transmitting the Catholic faith to the

next generation.” Lemon, 403 U.S. at 616 (internal quotation

marks omitted). 8 Teachers effectuate this purpose, and

“[w]hen it comes to the expression and inculcation of

religious doctrine, there can be no doubt that the messenger

matters.” Hosanna-Tabor, 565 U.S. at 201 (Alito, J.,

concurring). This court’s high view of the important role of

teachers as role models for morality in a secular public

school does not square with its view that teachers of religion

at a religious school carry little religious significance.

C

Our court is now the first to issue an opinion narrowing

the First Amendment’s ministerial exception to apply only

where an employee of a religious organization serves a

8

Whatever the continuing value of the legal test in Lemon, the

Supreme Court’s recognition of the religious mission of parochial

schools remains unchallenged. See Am. Legion v. Am. Humanist Ass’n,

No.17-1717, slip op. at 12–16 (U.S. June 20, 2019) (plurality op. of

Alito, J., joined by Roberts, C.J., Breyer, & Kavanaugh, JJ.) (“In many

cases, this Court has either expressly declined to apply the test or has

simply ignored it.”); id., slip op. at 1–4 (Kavanaugh, J., concurring)

(“[T]he Lemon test is not good law and does not apply to Establishment

Clause cases . . . .”); id., slip op. at 6–7 (Thomas, J., concurring in the

judgment) (“I would . . . overrule the Lemon test in all contexts.”); id.,

slip op. at 6–9 (Gorsuch, J., concurring in the judgment) (“Lemon was a

misadventure.”); see also Freedom From Religion Found., Inc. v. Chino

Valley Unified Sch. Dist. Bd. of Educ., 910 F.3d 1297, 1305–07 (9th Cir.

2018) (R. Nelson, J., joined by Bybee, Callahan, Bea, & Ikuta, JJ.,

dissenting from denial of rehearing en banc).

26 BIEL V. ST. JAMES SCHOOL

significant religious function and either bestows upon an

employee a religiously significant title (at least in a court’s

view), or requires the employee to have obtained religious

training.

The harmful effects of this opinion have already

emerged. In Morrissey-Berru, another panel of this court

applied Biel’s rule to hold summarily in an unpublished

opinion that a Catholic school teacher’s “significant

religious responsibilities” were insufficient. No. 17-56624,

2019 WL 1952853, at *1. Like Biel, Morrissey-Berru

reversed a district court judge’s decision finding the

exception applied. The panel acknowledged that Morrissey-

Berru

committed to incorporate Catholic values and

teachings into her curriculum, as evidenced

by several of the employment agreements she

signed, led her students in daily prayer, was

in charge of liturgy planning for a monthly

Mass, and directed and produced a

performance by her students during the

School’s Easter celebration every year.

Id. But because Biel held that “an employee’s duties alone

are not dispositive under Hosanna-Tabor’s framework,” the

panel concluded the exception did not bar Morrissey-Berru’s

claim. Id. The case for the ministerial exception in

Morrissey-Berru is even stronger than in Biel given the

Supreme Court’s directive in Hosanna-Tabor. Absent

further review of Biel, the implications are stark: Catholic

schools in this circuit now have less control over employing

its elementary school teachers of religion than in any other

area of the country. Given our court’s broad coverage, this

is not insignificant. Now thousands of Catholic schools in

BIEL V. ST. JAMES SCHOOL 27

the West have less religious freedom than their Lutheran

counterparts nationally. See Larson v. Valente, 456 U.S.

228, 244 (1982) (“The clearest command of the

Establishment Clause is that one religious denomination

cannot be officially preferred over another.”).

V

In applying the ministerial exception, our court should

look to the function performed by employees of religious

bodies. Doing so would honor the foundational protections

of the First Amendment and ensure all religious groups are

afforded the same protection.