Lynn Starkey v. Roman Catholic Archdiocese of

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 21-2524

LYNN STARKEY,

Plaintiff-Appellant,

v.

ROMAN CATHOLIC ARCHDIOCESE OF INDIANAPOLIS, INC. and

RONCALLI HIGH SCHOOL, INC.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:19-cv-03153 — Richard L. Young, Judge.

____________________

ARGUED MAY 16, 2022 — DECIDED JULY 28, 2022

____________________

Before EASTERBROOK, BRENNAN, and ST. EVE, Circuit Judges.

BRENNAN, Circuit Judge. The ministerial exception,

grounded in the First Amendment’s Religion Clauses, bars in-

terference with the selection and control of a religious organ-

ization’s ministers. The issues here are whether a guidance

counselor at a Catholic high school is a minister, and whether

the ministerial exception applies to state law claims made by

the guidance counselor.

2 No. 21-2524

I

Roncalli High School (“Roncalli”) is a Catholic school in

the Archdiocese of Indianapolis. Its mission is to “provide, in

concert with parents, parish, and community, an educational

opportunity which seeks to form Christian leaders in body,

mind, and spirit.” Roncalli supports and “further[s] the mis-

sion and purposes of” the Archdiocese. As the Archdiocese

and Roncalli explain, their relationship is governed by Cath-

olic theology and canon law. 1

Charles Weisenbach, Roncalli’s principal, is responsible

for hiring “faculty and staff whose values are compatible”

with the school’s mission. When hiring, Weisenbach consid-

ers whether a candidate is a “faithful Catholic,” “involved in

the Catholic community,” and “wants to grow with” the

school. If possible, the school prefers to hire Catholics for

teaching, administrative, and guidance counseling positions.

Ideally, “all teachers and guidance counselors that are hired

would be qualified, faithful Catholics.” After a candidate is

hired, Roncalli continues to evaluate “which teachers and

counselors are actively seeking opportunities to be involved

in the faith formation and overall development of [its] stu-

dents.” This involvement is considered when deciding which

employees to retain or promote.

Lynn Starkey began working at Roncalli in 1978 as an as-

sistant band director and choral director. Her job included

teaching choral music, selecting music for that curriculum

(some of which was religious), and preparing “students for

the music that was used during the all-school liturg[ies].”

1“A body of law developed within a particular religious tradition.”

Canon Law, BLACK’S LAW DICTIONARY (11th ed. 2019).

No. 21-2524 3

After three years, Starkey left Roncalli to complete a one-year

master’s degree in music education. When she returned, she

transitioned into a new role as Roncalli’s New Testament

teacher and became a certified catechist. About seven years

later, Starkey also became the school’s fine arts chair. In that

job she oversaw the school’s “band, choir, the visual arts, and

theater,” as well as evaluated the teachers in the department.

Although she did not consider this new position to be a

promotion, it came with a pay raise and additional responsi-

bilities. After about nine years, Starkey became a guidance

counselor, a position for which she completed a master’s de-

gree in school counseling.

Some guidance counselors at Roncalli discuss and practice

their faith with students. For example, one guidance

counselor testified that praying and attending liturgies with

students was a regular part of her job. Another former

counselor disagreed and testified that she did not recall

praying with students. Starkey submits that although some

counselors might act in this capacity, she never discussed

religion during a student consultation. Instead, when

confronted with non-academic concerns, she would refer a

student to a social worker or chaplain. Starkey acknowledges

that at the principal’s request, more than once she delivered a

morning prayer over the school’s public address system.

A decade later, Starkey became Roncalli’s Co-Director of

Guidance. This position involved supervision of the school’s

guidance counselors and oversight of the department’s social

work. Her responsibilities included tasks related to the

budget, course catalog, course description book, and curricu-

lum updates from the Indiana Department of Education. Ac-

cording to Starkey, her “job was to provide academic, college,

4 No. 21-2524

and career guidance to students and to provide resources and

referrals as needed.” As a supervisor, she also discussed reli-

gious topics with staff and administration. For example,

Starkey instructed staff how to prepare students of different

faiths for the Catholic liturgy. And in May 2016, she wrote

Weisenbach that if “school counselors had a Ministry Descrip-

tion, it would be identical to that of teachers,” with only two

exceptions unrelated to religion.

Starkey does not dispute that as Co-Director of Guidance

she helped draft performance criteria for Roncalli to evaluate

the guidance counselors under her supervision. Among the

criteria for a “Distinguished School Counselor” half were re-

ligious factors, such as:

• “School counselor embodies the charisms of

Saint John XXIII [Angelo Roncalli] and lives

out his traits.”

• “School counselor encourages students’

spiritual life and resources in counseling

conversation as appropriate (i.e. encourag-

ing prayer/reflection, sharing one’s own

spiritual experiences as appropriate; encour-

aging retreat, parish, youth ministry, mis-

sion work).”

• “School counselor consistently attends their

Sunday liturgy or church service.”

Starkey is not a practicing Catholic. She did not receive

religious training or claim religious tax deductions while at

Roncalli. The school did not ask whether she donated

financially to the Catholic Church or regularly attended Mass.

Starkey does not dispute that she attended monthly school

No. 21-2524 5

Masses, during which she received Communion and sang

with the congregation. Several times she went to “Days of

Reflection,” an annual event meant to focus faculty “who are

impacting kids in their spiritual life on a day-to-day basis” on

the Catholic mission. These events involved a call-and-

response Commissioning Prayer, in which faculty accepted

the responsibilities of their ministry. Starkey and several

others do not recall participating in the call-and-response

prayer.

As part of her job, Starkey served on Roncalli’s main lead-

ership body, the Administrative Council. According to

Weisenbach, “[m]ost faculty and staff recognize the Adminis-

trative Council as the lifeblood of decision-making at the

school.” The Council meets weekly to address Roncalli’s

“day-to-day operations and spiritual life.” Together, “the Ad-

ministrative Council and the Department Chairs are respon-

sible for 95% of Roncalli’s daily ministry, education, and

operations.” Along with these day-to-day operations, the Ad-

ministrative Council makes decisions related to the school’s

religious mission, such as arranging logistics for an all-school

liturgy and qualifications for a student to serve as a eucharis-

tic minister. 2

Starkey maintains that although she may have been in a

position to provide input on religious matters, she never ac-

tually did so. As a member of the Administrative Council, she

contributed little to nothing on topics related to religion, and

only voiced her opinion on non-religious matters that came

2 According to Catholic canon law, “an acolyte or another member of

the Christian faithful designated” to distribute Communion. 1983 CODE

c.910, § 2.

6 No. 21-2524

before it. The Faculty Handbook did not list her as a leader of

the “Faith Community,” so she largely deferred to Council

members who had religious titles and responsibilities. In her

role on the Administrative Council, she participated in discus-

sions about suicide prevention, holding a prayer service after

the Parkland mass shooting, and how Roncalli should present

itself as a Catholic option for faith formation and religious ed-

ucation.

Roncalli uses a one-year employment contract for teachers

and guidance counselors. For more than thirty years, Roncalli

has included a “morals clause” in those contracts. From 2007

to 2017, the school used a contract titled, “School Teacher Con-

tract,” which required employees refrain from “any personal

conduct or lifestyle at variance with the policies of the Arch-

diocese or the moral or religious teachings of the Roman Cath-

olic Church.” Failure to do so would result in “default under

th[e] contract.” An employee was also in default if she en-

gaged in “[c]ohabitation (living together) without being le-

gally married.” The school principal and the pastor could

“suspend or terminate the employment” of a defaulted em-

ployee at his or her discretion.

For the 2017–18 school year, Roncalli instituted a new em-

ployment agreement entitled “Teaching Ministry Contract.”

It contained the same morals clause and attached a Ministry

Description detailing the responsibilities of the position. The

next year, in May 2018, Starkey signed a contract titled,

“School Guidance Counselor Ministry Contract,” which came

with the “Archdiocese of Indianapolis Ministry Description.”

The updated contract included a similar morals clause, but

now stated that an employee was in default if the employee

were to engage in a relationship “contrary to a valid marriage

No. 21-2524 7

as seen through the eyes of the Catholic Church,” which de-

fines marriage as between a man and a woman. Catechism of

the Catholic Church ¶ 1660 (2d ed. 2016).

The accompanying Ministry Description defined the pri-

mary functions of a school guidance counselor in part as:

Adhering to mission and within the school’s su-

pervisory structure, including the school princi-

pal and pastor or high school principal and

president, the school guidance counselor will

collaborate with parents and fellow profes-

sional educators to foster the spiritual,

academic, social, and emotional growth of the

children entrusted in his/her care.

The Ministry Description also labeled guidance counselors

“minister[s] of the faith,” and stated that their position in-

cluded “[f]acilitat[ing] [f]aith [f]ormation.” A guidance coun-

selor’s responsibilities included:

1. Communicates the Catholic faith to students

and families through implementation of the

school’s guidance curriculum, academic course

planning, college and career planning, admin-

istration of the school’s academic programs,

and by offering direct support to individual stu-

dents and families in efforts to foster the inte-

gration of faith, culture, and life.

2. Prays with and for students, families, and col-

leagues and their intentions. Participates in and

celebrates liturgies and prayer services as ap-

propriate.

8 No. 21-2524

3. Teaches and celebrates Catholic traditions

and all observances in the Liturgical Year.

4. Models the example of Jesus, the Master

Teacher, in what He taught, how He lived, and

how He treated others.

5. Conveys the Church’s message and carries

out its mission by modeling a Christ-centered

life.

6. Participates in religious instruction and Cath-

olic formation, including Christian services, of-

fered at the school. Non-Catholic school guid-

ance counselors are expected to participate to

the fullest extent possible (e.g., non-Catholics

would come forward to receive a blessing in-

stead of Holy Communion in the Catholic

Mass).

By signing the contract, Starkey acknowledged that she re-

ceived the Ministry Description and agreed to fulfill “the du-

ties and responsibilities” the agreement provided. Starkey

does not dispute the text of these documents or her signatures

on them. Instead, she argues that these documents do not de-

scribe either her or the school’s actual conduct.

In August 2018, Starkey’s colleague—the other Co-

Director of Guidance—was placed on administrative leave

after an Archdiocesan priest learned that she had entered a

same-sex union. 3 That same month Starkey informed

Roncalli’s leadership that she too was in a same-sex union.

3The Archdiocese stipulated to this fact only for the purpose of sum-

mary judgment in this case.

No. 21-2524 9

The school permitted her to finish her contract, but at the end

of the year she received a letter from the principal explaining

that her employment would not be renewed for the 2019–20

school year because her conduct violated the terms of her

contract. Starkey then began working as a guidance counselor

at a public school for a higher salary.

In July 2019, Starkey filed a complaint alleging Roncalli

and the Archdiocese violated Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq. and Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681 et seq., as well as two

Indiana state tort claims against the Archdiocese. Following

discovery and the dismissal of the Title IX claims, Roncalli

and the Archdiocese moved for summary judgment based on

the ministerial exception, Title VII’s religious exemption, the

Religious Freedom and Restoration Act of 1993 (“RFRA”), 42

U.S.C. § 2000bb et seq., and other grounds. The court granted

summary judgment based on the ministerial exception, with-

out reaching the other issues. Starkey now appeals that deci-

sion on five claims: (1) Title VII Discrimination; (2) Title VII

Retaliation; (3) Title VII Hostile Work Environment; (4) Inten-

tional Interference with Contractual Relationship; and (5) In-

tentional Interference with Employment Relationship.

This case comes to us for de novo review of a grant of sum-

mary judgment for the defendants. See v. Ill. Gaming Bd., 29

F.4th 363, 368 (7th Cir. 2022). We view the facts in the light

most favorable to Starkey as the nonmoving party, drawing

all reasonable inferences in her favor. Id.

II

“Congress shall make no law respecting an establishment

of religion or prohibiting the free exercise thereof.” U.S.

10 No. 21-2524

CONST. amend. I. From these Religion Clauses “flow[] the

ministerial exception, which ‘ensures that the authority to se-

lect and control who will minister to the faithful—a matter

strictly ecclesiastical—is the church’s alone.’” Demkovich v. St.

Andrew the Apostle Par., Calumet City, 3 F.4th 968, 975 (7th Cir.

2021) (en banc) (quoting Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC, 565 U.S. 171, 194–95 (2012)). Under

that rule “courts are bound to stay out of employment dis-

putes involving those holding certain important positions

with churches and other religious institutions.” Our Lady of

Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020).

The Supreme Court unanimously endorsed the ministerial

exception in Hosanna-Tabor. There, the Court considered a

teacher’s retaliation claim against an Evangelical Lutheran

school under the Americans with Disabilities Act of 1990

(“ADA”), 42 U.S.C. § 12101 et seq. 565 U.S. at 177–79. When

deciding whether the teacher was a minister, the Court de-

clined to “adopt a rigid formula.” Id. at 190. Rather, it consid-

ered all the circumstances of employment including: (1) “the

formal title given” by the church; (2) “the substance reflected

in that title”; (3) the individual’s “own use of that title”; and

(4) “the important religious functions” the individual per-

formed for the church. Id. at 192. The Court noted that the

school held the teacher “out as a minister, with a role distinct

from that of most of its members”; her title “reflected a signif-

icant degree of religious training followed by a formal process

of commissioning”; she held herself out as a minister; and her

“job duties reflected a role in conveying the Church’s message

and carrying out its mission.” Id. at 191–92. The Court ruled

that the teacher was a minister, clarifying that the ministerial

exception is “not limited to the head of a religious congrega-

tion.” Id. at 190.

No. 21-2524 11

Eight years later, in Our Lady of Guadalupe, the Court re-

viewed the consolidated appeals of two Catholic school teach-

ers who alleged they were wrongfully terminated in violation

of the ADA and the Age Discrimination in Employment Act

of 1967, 29 U.S.C. § 621 et seq. 140 S. Ct. at 2056–59. The Court

held that the ministerial exception barred both suits because

there was “abundant record evidence that [both teachers] per-

formed vital religious duties.” Id. at 2066, 2069. Even though

their “titles did not include the term ‘minister,’ and they had

less formal religious training, … their core responsibilities as

teachers of religion were essentially the same.” Id. at 2066. The

teachers were “expected to guide their students, by word and

deed, toward the goal of living their lives in accordance with

the faith.” Id. They prayed and attended Mass with students

and “prepared the children for their participation in other re-

ligious activities.” Id. The schools’ faculty handbooks stated

that the teachers “were expected to help the schools carry out

this mission.” Id.

The Court in Our Lady of Guadalupe also clarified how

courts should apply the ministerial exception. It explained

that although the factors from Hosanna-Tabor are relevant,

they are not requirements and are not even “necessarily im-

portant” in all cases. Id. at 2063. Rather, “[w]hat matters, at

bottom, is what an employee does.” Id. at 2064. Implicit in

Hosanna-Tabor “was a recognition that educating young peo-

ple in their faith, inculcating its teachings, and training them

to live their faith are responsibilities that lie at the very core of

the mission of a private religious school.” Id. The teacher in

that case was a minister because she “had been entrusted with

the responsibility of ‘transmitting the Lutheran faith to the

next generation.’” Id. at 2064 (quoting Hosanna-Tabor, 565 U.S.

at 192). The ministerial exception should therefore include

12 No. 21-2524

“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.” Id. (quoting

Hosanna-Tabor, 565 U.S. at 199 (Alito, J., concurring)). This rule

recognizes that “[t]he religious education and formation of

students is the very reason for the existence of most private

religious schools.” Id. at 2055. For that reason, the “religious

institution’s explanation of the role of such employees in the

life of the religion in question is important.” Id. at 2066.

III

We consider first whether Lynn Starkey was a minister un-

der the exception. The district court concluded that she was

because Roncalli “expressly entrusted” her with “the respon-

sibility of communicating the Catholic faith to students” and

guiding the religious mission of the school.

The record supports the district court’s conclusion. As the

Co-Director of Guidance and a member of the Administrative

Council, Starkey was one of the school leaders responsible for

the vast majority of “Roncalli’s daily ministry, education, and

operations.” She was expected to take part in the school’s day-

to-day operations, which included responsibilities that con-

veyed the Catholic faith to students, such as leading prayer

over the public address system more than once. Her employ-

ment agreements and faculty handbooks recognized these job

duties and responsibilities by stating that she was expected to

carry out Roncalli’s religious mission.

In this role, Starkey had supervisory authority over other

guidance counselors. Their job included facilitating faith for-

mation by communicating the Catholic religion to students,

“modeling a Christ-centered life,” and “pray[ing] with and

No. 21-2524 13

for students.” According to the Archdiocese’s Ministry De-

scription, guidance counselors were “to foster the spiritual,

academic, social and emotional growth of the children en-

trusted in his/her care.” Those counselors contributed to

Roncalli’s religious mission of putting faith into action by vol-

unteering at service projects, going on mission trips, and at-

tending a retreat program. Starkey helped develop the criteria

used to evaluate guidance counselors, which included reli-

gious components like assisting students in faith formation

and attending church services. In short, Starkey was en-

trusted with communicating the Catholic faith to children, su-

pervising guidance counselors, and advising the principal on

matters related to the school’s religious mission.

Roncalli also held Starkey out as a minister. She was iden-

tified as a “minister of the faith” in her job description and

employed under a “Ministry Contract” beginning in the 2017–

18 school year. Her title, Co-Director of Guidance, reflected

the substance of her position, which Starkey noted in salary-

related communications with school administrators. This

court has consistently applied the ministerial exception in em-

ployment cases brought by teachers, music directors, press

secretaries, and organists, among other positions. See, e.g.,

Demkovich, 3 F.4th at 973, 985 (applying the ministerial excep-

tion to a music director, choir director, and organist’s Title VII

hostile work environment claim); Grussgott v. Milwaukee Jew-

ish Day Sch., Inc., 882 F.3d 655, 656 (7th Cir. 2018) (applying

the exception to a Jewish day school teacher’s ADA termina-

tion claim); Sterlinski v. Cath. Bishop of Chi., 934 F.3d 568, 569,

572 (7th Cir. 2019) (applying the exception to an organist and

music director’s Title VII retaliation and discrimination

claims); Alicea-Hernandez v. Cath. Bishop of Chi., 320 F.3d 698,

700, 702–04 (7th Cir. 2003) (applying the exception to the

14 No. 21-2524

Archdiocese of Chicago’s Hispanic Communications Man-

ager’s Title VII discrimination claim). Under this case law,

Starkey as Co-Director of Guidance qualifies as a minister.

Starkey argues that even if she were entrusted with reli-

gious responsibilities, she should not be considered a minister

because she never engaged in religious matters or held a for-

mal religious title. For example, Starkey notes that she did not

speak on religious topics during Administrative Council

meetings, and she would not pray or discuss religion with

students during one-on-one counseling sessions. She also

does not recall participating in a call-and-response prayer led

by the principal. Thus, Starkey maintains that she did not act

in a ministerial capacity, even if she were entrusted to do so.

This argument misunderstands the ministerial exception.

What an employee does involves what an employee is en-

trusted to do, not simply what acts an employee chooses to

perform. See Our Lady of Guadalupe, 140 S. Ct. at 2055 (apply-

ing the exception to an “employment dispute involving teach-

ers at religious schools who [were] entrusted with the respon-

sibility of instructing their students in the faith”). Under

Starkey’s theory, an individual placed in a ministerial role

could immunize themself from the ministerial exception by

failing to perform certain job duties and responsibilities. Reli-

gious institutions would then have less autonomy to remove

an underperforming minister than a high-performing one.

But an employee is still a minister if she fails to adequately

perform the religious duties she was hired and entrusted to

do. Cf. Hosanna-Tabor, 565 U.S. at 192 (noting “job duties” and

“responsibilities” demonstrated that the teacher was en-

trusted with “transmitting the Lutheran faith to the next gen-

eration”).

No. 21-2524 15

Starkey also contends the ministerial exception does not

apply to her because at one point the Archdiocese’s lawyers

advised that guidance counselors were not ministers. Starkey

cites emails from May 2016, which stated that “[s]chool coun-

selors and social workers do not meet the definition for the

ministerial exemption” for purposes of the Affordable Care

Act. These emails do not support Starkey’s contention. Ra-

ther, they show a lack of consensus among Weisenbach,

Starkey, and the Archdiocese’s lawyers over the legal defini-

tion of a minister for that Act. This confusion did not change

the nature or expectations of Starkey’s employment or her

employment documents. Instead, the emails concerned pro-

spective compliance with federal statutes, and neither the

emails nor that Act are binding on this litigation.

Finally, Starkey asserts that Roncalli’s Ministry Descrip-

tion and Ministry Contracts were pretextual because they

were added only three months before the Archdiocese’s law-

yers concluded that guidance counselors did not qualify as

ministers. But this ignores that the addition of a Ministry De-

scription only made formal Starkey’s role at Roncalli. For

more than 30 years, Roncalli’s employment contracts in-

cluded a morals clause, and all evidence shows that the school

considered Starkey to be a minister and entrusted her with

religious duties. On this record, the changes to Roncalli’s em-

ployment contracts are an honest formalization of Starkey’s

ongoing responsibilities. See Sterlinski, 934 F.3d at 571 (“The

answer lies in separating pretextual justifications from honest

ones. … If the court finds that the reason is honest, it does not

ask whether the reason is correct—it is enough that the em-

ployer believe its own reason in good faith. And the burden

of showing pretext rests with the plaintiff.”).

16 No. 21-2524

We affirm the district court’s decision that Starkey was a

minister under the First Amendment’s ministerial exception,

as well as its ruling that the exception bars Starkey’s three fed-

eral Title VII claims for discrimination, retaliation, and hostile

work environment. We turn next to Starkey’s state law claims.

IV

Starkey brings two Indiana state tort claims against the

Archdiocese: Interference with Contractual Relationship and

Intentional Interference with Employment Relationship. We

must decide whether the ministerial exception applies to such

state law claims.

The Supreme Court foresaw this issue in Hosanna-Tabor

but declined to resolve it. The Court stated: “We express no

view on whether the exception bars other types of suits, in-

cluding actions by employees alleging breach of contract or

tortious conduct by their religious employers. There will be

time enough to address the applicability of the exception to

other circumstances if and when they arise.” Hosanna-Tabor,

565 U.S. at 196.

As the district court noted here, the doctrine of church au-

tonomy is important to this question. In Hosanna-Tabor, the

Court emphasized that “[r]equiring a church to accept or re-

tain an unwanted minister, or punishing a church for failing

to do so, intrudes upon more than a mere employment deci-

sion.” Id. at 188. Such an intrusion “interferes with the internal

governance of the church” by “depriving [it] of control over

the selection of those who will personify its beliefs.” Id. But

the “distinction between what falls within the protection of

the church autonomy doctrine is not easily reduced to a

bright-line rule.” Brief of Professors as Amicus Curiae at 19

No. 21-2524 17

(citing Richard W. Garnett, The Freedom of the Church: (Toward)

an Exposition, Translation, and Defense, in THE RISE OF

CORPORATE RELIGIOUS LIBERTY 33, 50 (Micah Schwartzman et

al. eds., 2015)). Instead, courts must look to the First Amend-

ment, which “has struck the balance” between the “interest of

society in the enforcement of employment discrimination

statutes” and “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. As we have

stated, church autonomy “means what it says: churches must

have ‘independence in matters of faith and doctrine and in

closely linked matters of internal government.’” Demkovich, 3

F.4th at 975 (quoting Our Lady of Guadalupe, 140 S. Ct. at 2061).

A year after Our Lady of Guadalupe, our court considered

the scope of the ministerial exception in Demkovich. There, we

held that the ministerial exception “applies to hostile work

environment claims based on minister-on-minister harass-

ment.” Id. at 973. The decision relied on two principles from

Hosanna-Tabor and Our Lady of Guadalupe. First, “although

the[] cases involved allegations of discrimination in termina-

tion, their rationale is not limited to that context. The

protected interest of a religious organization in its ministers

covers the entire employment relationship, including hiring,

firing, and supervising in between.” Id. at 976–77 (citations

omitted). Second, the ministerial exception prevents “civil in-

trusion and excessive entanglement,” thereby reserving mat-

ters of ministerial employment for religious organizations. Id.

at 977 (citations omitted).

Before Hosanna-Tabor, several circuits ruled that the minis-

terial exception barred state law claims. For example, in Natal

v. Christian & Missionary Alliance, the First Circuit held that the

18 No. 21-2524

Free Exercise Clause barred an inquiry into a reverend’s

claims that his “property and contract rights were mutilated,

his reputation tarnished, and his emotional health ruined.”

878 F.2d 1575, 1576–78 (1st Cir. 1989). In Bell v. Presbyterian

Church (U.S.A.), the Fourth Circuit held that the First Amend-

ment barred review of an even broader range of tort claims.

126 F.3d 328, 329, 333 (4th Cir. 1997). These included: (1) in-

terference with a contract, (2) intentional infliction of emo-

tional distress, (3) breach of the covenant of good faith and

fair dealing, (4) interference with a prospective advantage,

(5) wrongful termination, and (6) breach of an annual finan-

cial pledge. Id. at 329–30. For similar reasons, the Sixth Circuit

held that it lacked jurisdiction to review a complaint that

“contained claims for breach of contract, promissory estoppel,

intentional infliction of emotional distress, and loss of consor-

tium.” Lewis v. Seventh Day Adventists Lake Region Conf., 978

F.2d 940, 941–53 (6th Cir. 1992). See also Hutchison v. Thomas,

789 F.2d 392, 392–93 (6th Cir. 1986) (affirming the district

court’s decision to dismiss a complaint, which included

claims for (1) improper application of religious provisions,

(2) fraudulent or collusive or arbitrary action, (3) defamation,

(4) intentional infliction of emotional distress, (5) breach of

contract, and (6) loss of consortium on the minister’s wife’s

part).

Since Hosanna-Tabor, one circuit has applied the ministe-

rial exception to a breach of contract claim. Lee v. Sixth Mount

Zion Baptist Church of Pittsburgh, 903 F.3d 113, 123 (3d Cir.

2018). In Lee, the Third Circuit considered a reverend’s breach

of contract claim, which resulted after his congregation voted

to terminate his employment based on his performance. Id. at

116–17. The court affirmed the grant of summary judgment

on ministerial exception grounds, reasoning that “the

No. 21-2524 19

adjudication of Lee’s contract claim would impermissibly en-

tangle the Court in religious doctrine in violation of the First

Amendment’s Establishment Clause.” Id. at 116. It noted that

it was “not aware of any court that has ruled on the merits

(i.e., not applied the ministerial exception) of a breach of con-

tract claim alleging wrongful termination of a religious leader

by a religious institution.” Id. at 122. But “the ministerial ex-

ception does not apply to, and courts may decide, disputes

that do not implicate ecclesiastical matters.” Id. at 123 (citation

omitted).

Other circuits have held that the ministerial exception ap-

plies to state law claims more generally. For example, in Con-

lon v. InterVarsity Christian Fellowship/USA, the Sixth Circuit

held that the “exception can be asserted as a defense against

state law claims.” 777 F.3d 829, 836 (6th Cir. 2015). Because the

Religion Clauses “apply to the States through the Fourteenth

Amendment by incorporation, the federal right would defeat

any [state] statute that, as applied, violates the First Amend-

ment.” Id. This point was not disputed in Hosanna-Tabor, 565

U.S. at 194 n.3 (“[Respondent] does not dispute that if the

ministerial exception bars her retaliation claim under the

ADA, it also bars her retaliation claim under Michigan law.”).

Similarly, the Ninth Circuit “has framed the exception as

applicable ‘to any state law cause of action that would other-

wise impinge on the church’s prerogative to choose its minis-

ters or to exercise its religious beliefs in the context of employ-

ing its ministers.’” Puri v. Khalsa, 844 F.3d 1152, 1158 (9th Cir.

2017) (quoting Bollard v. Cal. Province of the Soc’y of Jesus, 196

F.3d 940, 950 (9th Cir. 1999)). So, “any claim ‘with an associ-

ated remedy … [that] would require the church to employ [a

minister]’ would ‘interfer[e] with the church’s

20 No. 21-2524

constitutionally protected choice of its ministers,’ and thereby

‘would run afoul of the Free Exercise Clause.’” Id. (alterations

in original) (quoting Bollard, 196 F.3d at 950). The “ministerial

exception also bars relief for ‘consequences of protected em-

ployment decisions,’ such as damages for ‘lost or reduced

pay,’ because such relief ‘would necessarily trench on the

Church’s protected ministerial decisions.’” Id. (quoting Elvig

v. Calvin Presbyterian Church, 375 F.3d 951, 966 (9th Cir. 2004)).

See also Hosanna-Tabor, 565 U.S. at 194 (“An award of such re-

lief would operate as a penalty on the Church for terminating

an unwanted minister, and would be no less prohibited by the

First Amendment than an order overturning the termina-

tion.”); Tucker v. Faith Bible Chapel Int’l, 36 F.4th 1021, 1027 n.2

(10th Cir. 2022) (noting it was not disputed that the ministerial

exception applied to state law causes of action).

Our decision follows the lead of these other circuits. We

hold that the ministerial exception applies to state law claims,

like those for breach of contract and tortious conduct, that

implicate ecclesiastical matters. A claim implicates

ecclesiastical matters if it is “[o]f, relating to, or involving the

church, esp[ecially] as an institution.” Ecclesiastical, BLACK’S

LAW DICTIONARY (11th ed. 2019). To hold otherwise would

entangle courts in matters the First Amendment treats as

“strictly ecclesiastical,” and therefore the church’s alone.

Hosanna-Tabor, 565 U.S. at 194–95 (“The exception instead

ensures that the authority to select and control who will

minister to the faithful—a matter ‘strictly ecclesiastical’—is

the church’s alone.” (quoting Kedroff v. St. Nicholas Cathedral

of Russian Orthodox Church in N. Am., 344 U.S. 94, 119 (1952)));

Demkovich, 3 F.4th at 975 (same). This holding follows the

Supreme Court’s guidance and aligns with the decisions of

other circuits to have considered this issue. We have found no

No. 21-2524 21

decision that holds a contrary position on the application of

the ministerial exception to state law claims, nor have the

parties cited one to us.

Importantly, though, the ministerial exception is not ap-

plicable when a claim does not implicate an ecclesiastical mat-

ter. A minister who commits a tort outside the scope of em-

ployment may still be subject to liability. The same is true for

a breach of contract unrelated to an ecclesiastical matter. As

we have said before, “[i]f a minister’s allegations rise to those

levels, they may be independently actionable, as the protec-

tion of the ministerial exception inures to the religious organ-

izations, not to the individuals within them.” Demkovich, 3

F.4th at 982. To the best of our knowledge, “no court has held

that the ministerial exception protects against criminal or per-

sonal tort liability,” id., and we do not hold so here.

Both of Starkey’s state tort claims—Interference with Con-

tractual Relationship 4 and Intentional Interference with Em-

ployment Relationship 5—implicate ecclesiastical matters

4 “The elements of tortious interference with a contract are as follows:

(1) the existence of a valid and enforceable contract; (2) the defendant’s

knowledge of the existence of the contract; (3) defendant’s intentional in-

ducement of breach of the contract; (4) the absence of justification; and

(5) damages resulting from defendant’s wrongful inducement of the

breach.” Payne-Elliott v. Roman Cath. Archdiocese of Indianapolis, Inc., 180

N.E.3d 311, 324–25 (Ind. Ct. App. 2021) (citing Duty v. Boys and Girls Club

of Porter Cnty., 23 N.E.3d 768, 774 (Ind. Ct. App. 2014)).

5 “To prevail on a claim of intentional interference with an employ-

ment relationship, the claimant is required to show: (1) the existence of a

valid relationship; (2) the defendant’s knowledge of the existence of the

relationship; (3) the defendant’s intentional interference with that relation-

ship; (4) the absence of justification; and (5) damages resulting from

22 No. 21-2524

because they litigate the employment relationship between

the religious organization and the employee. Each tort con-

tains an element which requires either a valid relationship or

a valid and enforceable contract. To evaluate either claim re-

quires review of the Church’s authority over the employer,

the employer-employee relationship, and the contents of the

employee’s contract.

Such a review would result in excessive judicial

entanglement in ecclesiastical matters. State law claims may

not be used to deprive a religious organization of “control

over the selection of those who will personify its beliefs.”

Hosanna-Tabor, 565 U.S. at 188. Just so, nor may those claims

be used to shield ministers or religious organizations from

liability in cases that do not implicate ecclesiastical matters.

As the Court stated in Hosanna-Tabor, “the First Amendment

has struck the balance” between the “interest of society in the

enforcement of employment discrimination statutes” and

“the interest of religious groups in choosing who will preach

their beliefs, teach their faith, and carry out their mission.” Id.

at 196. Applying the ministerial exception to Starkey’s state

tort claims does not disrupt or change that balance. Rather, it

respects the “special solicitude” the First Amendment

provides to religious organizations without shielding them

from liability in non-ecclesiastical matters. Id. at 189.

Because Starkey was a minister, the district court correctly

determined that both of Starkey’s state tort claims are barred

by the First Amendment’s ministerial exception.

defendant’s wrongful interference with the relationship.” Id. at 325 (citing

City of Lawrence Utils. Serv. Bd. v. Curry, 68 N.E.3d 581, 588–89 (Ind. 2017)).

No. 21-2524 23

V

Starkey was a minister because she was entrusted with

communicating the Catholic faith to the school’s students and

guiding the school’s religious mission. The ministerial

exception bars all her claims, federal and state. This opinion

therefore does not reach the parties’ Title VII, RFRA, or other

constitutional arguments. We AFFIRM the district court.

24 No. 21-2524

EASTERBROOK, Circuit Judge, concurring. It is a stretch to

call a high school guidance counsellor a minister. Even if the

school expects counsellors to pray with students and discuss

matters of faith with them, the job is predominantly secular.

Designating the position as a minister by contract cannot be

called pretextual, however, so I do not object to the majority’s

conclusion. See Sterlinski v. Catholic Bishop of Chicago, 934 F.3d

568, 571 (7th Cir. 2019).

I am concerned, however, by what seems to have become

the norm in cases of this kind: starting with a constitutional

question under Hosanna-Tabor Evangelical Lutheran Church and

School v. EEOC, 565 U.S. 171 (2012), rather than with the stat-

ute, which is the proper sequence. See, e.g., New York City

Transit Authority v. Beazer, 440 U.S. 568, 582 (1979). The princi-

pal statutory question here is whether the Diocese is entitled

to the benefit of the exemption in §702(a) of the Civil Rights

Act of 1964, which provides:

This subchapter shall not apply to … a religious corporation, as-

sociation, educational institution, or society with respect to the

employment of individuals of a particular religion to perform

work connected with the carrying on by such corporation, associ-

ation, educational institution, or society of its activities.

42 U.S.C. §2000e–1(a). “This subchapter” refers to Title 42,

Chapter 21, Subchapter VI, which comprises all of Title VII.

The Diocese is a religious association, and the high school is a

religious educational institution. Any temptation to limit this

exception to authorizing the employment of co-religionists,

and not any other form of religious selectivity, is squelched

by the definitional clause in §2000e(j), which tells us that reli-

gion includes “all aspects of religious observance and prac-

tice, as well as belief”. (Section 2000e–2(e)(2) separately

No. 21-2524 25

provides an exemption for employment of co-religionists by

schools and colleges affiliated with religious groups.)

A straightforward reading of §2000e–1(a), coupled with

§2000e(j), shows that the Diocese was entitled to fire Starkey

without regard to any of the substantive rules in Title VII. It

is undisputed that the Roman Catholic Church deems same-

sex marriages improper on doctrinal grounds and that avoid-

ing such marriages is a kind of religious observance. Same-

sex marriages are lawful in secular society and are protected

by Title VII when its rules apply, see Bostock v. Clayton County,

140 S. Ct. 1731 (2020), but are forbidden by many religious

faiths. Section 702(a) permits a religious employer to require

the staff to abide by religious rules. A religious school is enti-

tled to limit its staff to people who will be role models by liv-

ing the life prescribed by the faith, which is part of “religion”

as §2000e(j) defines that word.

So why isn’t §702(a) the first issue considered in all Title

VII suits alleging discrimination by a religious organization?

The answer may be that courts of appeals say that the exemp-

tion permits religious discrimination but no other kind. That

the exemption permits religious associations to discriminate

on religious grounds is plain enough. See Corporation of the

Presiding Bishop v. Amos, 483 U.S. 327, 329 (1987). But where

does the “no other kind” limitation come from? Decisions

such as Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 192

(4th Cir. 2011), which states that “Section 2000e–1(a) does not

exempt religious organizations from Title VII’s provisions

barring discrimination on the basis of race, gender, or national

origin”, do not explain why “this subchapter” means some-

thing less than all of Title VII. See also, e.g., McClure v. Salva-

tion Army, 460 F.2d 553, 558 (5th Cir. 1972); EEOC v. Townley

26 No. 21-2524

Engineering & Manufacturing Co., 859 F.2d 610, 616 (9th Cir.

1988); Fratello v. Archdiocese of New York, 863 F.3d 190, 200 n.21

(2d Cir. 2017). Some decisions, such as Rayburn v. General Con-

ference of Seventh-Day Adventists, 772 F.2d 1164, 1167 (4th Cir.

1985), mention legislative history, but not any that illuminates

the meaning of “this subchapter”.

Maybe what these decisions are getting at is that §702(a)

does not exempt all employment decisions by religious organ-

izations. The decision must itself be religious, as that word is

defined in Title VII. This means, for example, that sex discrim-

ination unrelated to religious doctrine falls outside the scope

of §702(a). But when the decision is founded on religious be-

liefs, then all of Title VII drops out. I cannot imagine any plau-

sible reading of “this subchapter” that boils down to

“churches can discriminate against persons of other faiths but

cannot discriminate on account of sex”. One function of

§702(a) is to permit sex discrimination by religions that do not

accept women as priests. The exemption does this by declar-

ing all of “this subchapter” to be inapplicable. (Perhaps the

“bona fide occupational qualification” exemption in §2000e–

2(e)(1) also covers a rule against female clergy, but §702(a)

seems a better fit for this role.)

Anyway, how could one distinguish religious discrimina-

tion from sex discrimination in Starkey’s situation? Firing

people who have same-sex partners is sex discrimination, Bos-

tock holds. See also Hively v. Ivy Tech Community College, 853

F.3d 339 (7th Cir. 2017) (en banc). But it is also religious dis-

crimination. The Diocese is carrying out its theological views;

that its adherence to Roman Catholic doctrine produces a

form of sex discrimination does not make the action less reli-

giously based.

No. 21-2524 27

The block quotation above omits part of the exemption’s

language. The omitted words say that the subchapter “shall

not apply to an employer with respect to the employment of

aliens outside any State”. That language has been understood

to mean what it says: none of Title VII’s substantive rules ap-

plies to aliens covered by §702(a). See, e.g., Rabé v. United Air

Lines, Inc., 636 F.3d 866, 869 (7th Cir. 2011). What is true for

the alien exemption must be true for the religious exemption

as well.

Our circuit has never embraced the position that §702(a)

permits religious discrimination but not sex discrimination

that has a religious footing. Section 702(a) will not resolve all

claims made by employees of religious organizations, but it

resolves many—including Starkey’s.