Amicus Curiae Brief — Our Lady of Guadalupe School, Petitioner v. Agnes Morrissey-Berru

Nos. 19-267, 19-348

In the

Supreme Court of the United States

OUR LADY OF GUADALUPE SCHOOL,

Petitioner,

v.

AGNES MORRISSEY-BERRU,

Respondent.

ST. JAMES SCHOOL,

Petitioner,

v.

DARRYL BIEL,

Respondent.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE OF BILLY GRAHAM

EVANGELISTIC ASSOCIATION, SAMARITAN’S

PURSE, FORCEY CHRISTIAN SCHOOL,

CONGRESSIONAL PRAYER CAUCUS

FOUNDATION, INTERNATIONAL CONFERENCE

OF EVANGELICAL CHAPLAIN ENDORSERS,

NATIONAL LEGAL FOUNDATION, AND PACIFIC

JUSTICE INSTITUTE

in support of Petitioners

Steven W. Fitschen

Frederick W. Claybrook, Jr.

James A. Davids

The National Legal

Foundation

524 Johnstown Road

Chesapeake, Va. 23322

Claybrook LLC

700 Sixth St., NW, Ste. 430

Washington, D.C. 20001

David A. Bruce

205 Vierling Dr.

Silver Spring, Md. 20904

Counsel of Record

i

Table of Contents

Table of Authorities .................................................... ii

STATEMENTS OF INTERESTS ............................... 1

SUMMARY OF THE ARGUMENT ........................... 4

ARGUMENT ............................................................... 6

I.

The Ministerial Exception Protects Religious

Organizations Other Than Houses of

Worship and Their Schools. ............................. 6

II.

The Ministerial Exception’s Application

Must Be Grounded in Basic First

Amendment Principles, Rather Than by

Comparisons to the Teacher in HosannaTabor............................................................... 10

III.

Justice Thomas’s Approach to Determining

the Scope of the Ministerial Exception

Is the Correct One. ......................................... 15

IV.

Several Amici Demonstrate the Importance

That This Court Adopt Justice Thomas’s

Test for the Exception. ................................... 23

CONCLUSION.......................................................... 26

APPENDIX......................................................................... 1a

ii

Table of Authorities

Cases

Bd. of Airport Comm’rs of LA v. Jews for Jesus,

Inc., 482 U.S. 569 (1987) ....................................... 14

Biel v. St. James Sch.,

911 F.3d 603 (9th Cir. 2018) ................................. 11

Biel v. St. James Sch.,

926 F.3d 1238 (9th Cir. 2019)

(denial of en banc rehearing) ................................ 14

Broadrick v. Okla., 413 U.S. 601 (1973) .................. 14

Cannata v. Catholic Diocese of Austin,

700 F.3d 169 (5th Cir. 2012) ................................. 20

Conlon v. InterVarsity Christian Fellowship/USA,

777 F.3d 829 (6th Cir. 2015) ............................... 7, 9

Corp. of Presiding Bishop of Church of Jesus

Christ of Latter-day Saints v. Amos,

483 U.S. 327 (1987) ........................................ passim

EEOC v. Catholic Univ.,

83 F.3d 455 (D.C. Cir. 1996) ................................... 6

Fowler v. R.I., 345 U.S. 67 (1953) ...................... 12, 13

Fratello v. Archdiocese of N.Y.,

863 F.3d 190 (2d Cir. 2017).............................. 18-20

Grussgott v. Milwaukee Jewish Day Sch., Inc.,

882 F.3d 655 (7th Cir. 2018) ............................ 17-18

Hollins v. Methodist Healthcare, Inc.,

474 F.3d 223 (6th Cir. 2007) ................................... 6

iii

Hosanna-Tabor Evangelical Lutheran Church

and School v. EEOC, 565 U.S. 171 (2012)..... passim

Kedroff v. St. Nicholas Cath. of Russ. Orthodox

Church in N. Am., 344 U.S. 94 (1952) .................. 10

Kennedy v. Bremerton Sch. Dist.,

869 F.3d 813 (9th Cir. 2017) ................................. 14

Larson v. Valente, 456 U.S. 228 (1982) .................... 12

McClure v. Salvation Army,

460 F.2d 553 (5th Cir. 1972) ................................... 6

Meek v. Pittenger, 421 U.S. 349 (1975) .................... 17

Niemotko v. Md., 340 U.S. 268 (1951) ...................... 12

NLRB v. Cath. Bishop of Chi.,

440 U.S. 490 (1979) ............................................... 16

Petruska v. Gannon Univ.,

462 F.3d 294 (3d Cir. 2006)..................................... 6

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963) ............................................... 18

Scharon v. St. Luke’s Epis. Pres. Hosps.,

929 F.2d 360 (8th Cir. 1991) ................................... 6

Schleicher v. Salvation Army,

518 F.3d 472 (7th Cir. 2008) ................................... 6

Serbian E. Orthodox Diocese for U.S.A. and Can.

v. Milivojevich, 426 U.S. 696 (1976) ..................... 13

Shaliehsabou v. Hebrew Home of Greater Wash.,

Inc., 363 F.3d 299 (4th Cir. 2004) ................... 6, 7, 9

iv

Sterlinski v. Cath. Bishop of Chi.,

934 F.3d 568 (7th Cir. 2019) ........................... 20, 22

Thomas v. Review Bd., 450 U.S. 707 (1981) ............ 26

Watson v. Jones, 80 U.S. 679 (1871) ........................ 13

Statutes

IRC, 26 U.S.C.

§ 170(b)(1)(A)(i)........................................................ 9

§ 509(a)(1) ................................................................ 9

Other Authorities

James A. Davids, “Religious Colleges’

Employment Rights Under the ‘Ministerial

Exception’ and When Disciplining an

Employee for Sexually Related Conduct,”

21 Tex. Rev. of Law & Politics 423 (2017) .............. 9

1

STATEMENTS OF INTERESTS1

The

Billy

Graham

Evangelistic

Association (BGEA) was founded by Billy Graham

in 1950 and, continuing the lifelong work of Billy

Graham, exists to support and extend the

evangelistic calling and ministry of Franklin Graham

by proclaiming the Gospel of the Lord Jesus Christ to

all it can by every effective means available to it and

by equipping the church and others to do the same.

BGEA ministers to people around the world through

a variety of activities including Decision America

Tour prayer rallies, evangelistic festivals and

celebrations, television and internet evangelism, the

Billy Graham Rapid Response Team, the Billy

Graham Training Center at the Cove, and the Billy

Graham Library. Through its various ministries and

in partnership with others, BGEA strives to

represent Jesus Christ in the public square, to

cultivate prayer, and to proclaim the Gospel. BGEA

believes that, to fulfill its mission, it is essential that

its employees share its religious beliefs and

acknowledge that those beliefs are put into action

through BGEA in pursuit of its religious mission and

objectives.

Samaritan’s Purse is a nondenominational,

evangelical Christian organization formed in 1970 to

provide spiritual and physical aid to hurting people

around the world. It seeks to follow the command of

1 The parties have consented to the filing of this brief in

writing. No counsel for any party authored this brief in

whole or in part. No person or entity other than amici and

their counsel made a monetary contribution intended to

fund the preparation or submission of this brief.

2

Jesus to “go and do likewise,” true to the story of the

Samaritan who helped a hurting stranger.

Samaritan’s Purse operates in over 100 countries

providing emergency relief, community development,

vocational programs, and resources for children, all

in the name of Jesus Christ. Samaritan’s Purse

believes that its mission can only be properly fulfilled

by employees who share its religious commitments.

Forcey Christian School (FCS) in Silver

Spring, Maryland, is a K-8 school serving the local

community. FCS is a ministry of Forcey Bible

Church and is co-located on the church grounds.

Forcey Bible Church is a non-denominational,

Christian church whose mission is to live out the

gospel by service to others, biblical teaching, and

evangelization, and FCS is an important outreach of

the church. Its teachers and administrative staff are

required to endorse a statement of faith and to abide

by standards of conduct consistent with their

profession of biblical Christianity. All teachers

engage in religious instruction of their students, but

teachers are not required to be ordained or to have a

formal religious degree.

The

Congressional

Prayer

Caucus

Foundation (CPCF) is an organization established

to protect religious freedoms (including those related

to America’s Judeo-Christian heritage) and to

promote prayer (including as it has traditionally

been exercised in Congress and other public places).

It is independent of, but traces its roots to, the

Congressional Prayer Caucus that currently has over

100 representatives and senators associated with it.

CPCF

reaches

across

all

denominational,

socioeconomic, political, racial, and cultural dividing

3

lines. It has an associated national network of

citizens, legislators, pastors, business owners, and

opinion leaders hailing from thirty-three states. To

fulfill its religious mission, it requires its employees

to be co-religionists.

The

International

Conference

of

Evangelical Chaplain Endorsers (ICECE) has as

its main function the endorsement of chaplains who

lack a denominational structure for endorsement.

This method for endorsing chaplains for the military

and other organizaitons avoids the entanglement

with religion that the government would otherwise

have if it determined chaplain endorsements. ICECE

safeguards religious liberty for chaplains and all

military personnel.

The National Legal Foundation (NLF) is a

public interest law firm dedicated to the defense of

First Amendment liberties and the restoration of the

moral and religious foundation on which America

was built. The NLF and its donors and supporters,

including those in California, seek to ensure that an

historically accurate understanding of the Religion

Clauses is presented to our country’s judiciary. NLF

often represents religious organizations that do not

easily fit into either a church or church school mold.

But those organizations have important ministries

fueled by their religious beliefs—for example, work

in disaster relief and “lifestyle” evangelization—that

often do not involve explicit teaching or conducting

standard “worship services” or “rituals.”

The Pacific Justice Institute (PJI) is a nonprofit legal organization established under Section

501(c)(3) of the Internal Revenue Code. Since its

4

founding in 1997, PJI has advised and represented in

court and administrative proceedings thousands of

individuals, businesses, and religious institutions,

particularly in the realm of First Amendment rights.

As such, PJI has a strong interest in the

development of the law in this area. PJI often

represents religious organizations that do not easily

fit into either a church or church school mold but

which have important ministries fueled by their

religious beliefs. Those organizations sincerely

believe that many of their employee positions should

be filled by co-religionists in order to perform the

organization’s ministries to which they are called.

SUMMARY OF THE ARGUMENT

This Court in Hosanna-Tabor Evangelical

Lutheran Church and School v. EEOC2 confirmed

that the Constitution requires the exemption of at

least some employees of some religious organizations

from nondiscrimination laws. Now this Court should

articulate more specifically the circumstances in

which the exception applies.

In Hosanna-Tabor, while eschewing setting

out any rigid test, this Court did establish three

important principles that help define the scope of the

ministerial exception. One, the First Amendment

safeguards from interference by the State at least

some employment decisions of religious organizations

that are not prototypical worship centers, like

religious schools. Two, the ministerial exception

covers more than just the top-tier officials of religious

2 565 U.S. 171 (2012).

5

organizations. And, three, an employee need not

perform exclusively what an outsider might consider

“religious” activities to qualify as a “minister” under

the exception.

Amici either are, or commonly represent,

organizations that are not traditional places of

worship,

but,

nevertheless,

are

religious

organizations because they are founded for religious

reasons, affirm religious principles, and carry out

religiously inspired ministries. One amicus is a

church school, but of a non-denominational

character, unlike the Lutheran Church—Missouri

Synod school involved in Hosanna-Tabor. These

religious organizations and ones like them are

protected by the religious exception, which at a most

basic level includes decisions of the religious

organization as to who best carries out its religious

mission.

Justice

Brennan

rightly

observed,

“Determining that certain activities are in

furtherance of an organization's religious mission,

and that only those committed to that mission should

conduct them, is . . . a means by which a religious

community defines itself.”3

In deciding the contours of the “ministerial

exception,” this Court should hew to the overriding

demands of the Religion Clauses that the

government keep out of the business of divining

religious doctrine and that it refrain from secondguessing judgment calls of religious organizations

about how they should perform their mission. To do

3 Corp. of Presiding Bishop of Church of Jesus Christ of

Latter-day Saints v. Amos, 483 U.S. 327, 342 (1987)

(Brennan, J., concurring).

6

so, this Court should adopt the standard advocated

by Justice Thomas in his concurring opinion in

Hosanna-Tabor, which requires a court “to defer to a

religious organization’s good-faith understanding of

who qualifies as a minister.”4

ARGUMENT

I.

The Ministerial Exception Protects

Religious Organizations Other Than

Houses of Worship and Their Schools.

From the outset, the courts of appeal have

applied the ministerial exception to religious

organizations other than traditional houses of

worship such as churches, synagogues, and mosques.

In two of the leading cases, the Fifth and Seventh

Circuits applied it to the Salvation Army, a religious

organization engaged in both evangelistic and social

welfare activities.5 The Fourth Circuit applied it to a

Jewish nursing home.6

The Sixth and Eighth

Circuits, to denomination-related hospitals.7 The

D.C. and Third Circuits, to Catholic universities.8

4 565 U.S. at 196 (Thomas. J., concurring).

5 See Schleicher v. Salvation Army, 518 F.3d 472, 475 (7th

Cir. 2008); McClure v. Salvation Army, 460 F.2d 553 (5th

Cir. 1972).

6 See Shaliehsabou v. Hebrew Home of Greater Wash.,

Inc., 363 F.3d 299, 310 (4th Cir. 2004).

7 See Hollins v. Methodist Healthcare, Inc., 474 F.3d 223,

223-25 (6th Cir. 2007); Scharon v. St. Luke’s Epis. Pres.

Hosps., 929 F.2d 360, 362-63 (8th Cir. 1991).

8 See Petruska v. Gannon Univ., 462 F.3d 294, 303-07 (3d

Cir. 2006); EEOC v. Catholic Univ., 83 F.3d 455, 460-63

(D.C. Cir. 1996).

7

And, of course, this Court, in Hosanna Tabor itself,

applied it to a church-affiliated, K-8 school.9

After Hosanna Tabor, the Sixth Circuit

applied the ministerial exception to the InterVarsity

Christian Fellowship/USA, “an evangelical campus

mission serving students and faculty on college and

university campuses nationwide.”10 It noted that

IVCF’s stated purposes included establishing

“witnessing communities” of Christians on campuses,

that the organization’s beliefs included the “sanctity

of marriage,” and that IVCF restricted employment

opportunities to those who conformed in faith and

practice with its own beliefs.11 In finding IVCF to

qualify as a “religious group” for purposes of the

ministerial exception, the Sixth Circuit adopted the

Fourth Circuit’s formulation: “[A] religiously

affiliated entity is one whose mission is marked by

clear or obvious religious characterisitics.”12

This Court should adopt the same rule,

allowing organizations with an obvious religious

character to qualify for the ministerial exception

despite their not being what is considered a

“traditional church” or denomination. Indeed, many

religious organizations, similar to IVCF, have a

sincere belief that their mission is best accomplished

by associating employees who are, both in belief and

conduct, among those faithful to the organization’s

9 565 U.S. at 177.

10 Conlon v. InterVarsity Christian Fellowship/USA, 777

F.3d 829, 831 (6th Cir. 2015).

11 Id.

12 Id. at 834 (quoting Shaliehsabou, 363 F.3d at 310;

internal quotation marks omitted).

8

doctrines and purposes. For instance, amicus Billy

Graham Evangelistic Association in its employee

handbook provides as follows:

As an ambassador of the Gospel of Jesus

Christ and of BGEA, each employee is expected to

exhibit conduct consistent with the highest degree

of moral, ethical, and Biblical integrity and

fidelity. . . .

....

All employees must indicate and demonstrate

ongoing

agreement

with

the

following

expectations:

• I acknowledge that the Lord Jesus Christ is

my personal Savior and that I am a personal

representative of Him.

• I understand that BGEA is a Christian

organization whose purpose is proclaiming the

message of the Gospel of the Lord Jesus Christ

throughout the world.

• I agree that the purpose of my employment

with BGEA is to further its Christian purpose

and that I am prepared to support its work

through prayer and to assist in accomplishing

BGEA’s mission.

• I understand that I must exhibit conduct

that is consistent with BGEA’s expectations,

whether at work or away from work, in keeping

with Scriptural teachings and principles as set

forth in God’s Word, BGEA’s Statement of Faith,

9

and BGEA’s

Conduct.

policies,

including

Christian

• I understand that BGEA has the right and

the responsibility to ensure that its Christian

religious purpose is carried on with the highest

standards and is not harmed or impeded by

conduct that is inconsistent with the Bible,

BGEA’s Statement of Faith, its Christian

religious purpose, or its policies. (App’x 1a-3a.)

Similar statements made by other amici in their

internal governance documents are in the appendix.

The bottom line is that many religious

organizations other than traditional houses of

worship believe it critical to employ those personally

committed to its religious purposes. This Court

rightly held in Hosanna-Tabor that the ministerial

exception covers such organizations as well.13 It

should take this opportunity to clarify that the

exception covers any organization “whose mission is

marked

by

clear

or

obvious

religious

characteristics.”14

Many religious organizations like amici BGEA and

Samaritan’s Purse are considered an “association of

churches” and are classified the same as churches by the

IRS under IRC §§ 509(a)(1) and 170(b)(1)(A)(i).

14 Shaliehsabou, 363 F.3d at 310; accord Conlon, 777 F.3d

at 834; see generally James A. Davids, “Religious

Colleges’ Employment Rights Under the ‘Ministerial

Exception’ and When Disciplining an Employee for

Sexually Related Conduct,” 21 Tex. Rev. of Law & Politics

423 (2017).

13

10

II.

The Ministerial Exception’s Application

Must Be Grounded in Basic First

Amendment Principles, Rather Than by

Comparisons

to

the

Teacher

in

Hosanna-Tabor.

This Court in its majority decision in

Hosanna-Tabor properly began with first principles:

the Religion Clauses themselves and the protection

they offer to religious individuals and organizations.

Simply stated, the Free Exercise and Establishment

Clauses mutually reinforce the principle that

government must not interfere with the internal

affairs and practices of religious organizations.15

More particularly, as this Court noted, religious

organizations have the “power to decide for

themselves, free from state interference, matters of

church government as well as those of faith and

doctrine.”16

Applying first principles requires looking

beyond the term minister. The Constitution does not

use the term, and the concerns that activate the

“ministerial exception” apply more broadly than just

to the leader of a religious organization, as this Court

properly recognized in Hosanna-Tabor.17

Religious organizations are typically operated

by more than just their leaders, and those same

organizations often believe it essential to their

ministries to require fidelity to their own first

15 565 U.S. at 183-87.

16 Id. at 186 (quoting Kedroff v. St. Nicholas Cath. of Russ.

Orthodox Church in N. Am., 344 U.S. 94, 116 (1952)).

17 See id. at 190.

11

principles of faith and conduct by most, if not all, of

their employees. The determination by an

organization of which employees must do so is a

function of the organization’s ministry purpose, its

size, its logistical circumstances, and, always, its

understanding of its own religious beliefs and how

best to fulfill its mission.

The Ninth Circuit in the cases here on appeal

ignored first principles, tying the analysis instead to

the particular facts in Hosanna-Tabor. One can

divide the circumstances this Court listed for the

teacher involved in Hosanna-Tabor into four general

categories, as the Ninth Circuit did in Biel v. St.

James School.18 Or one could itemize each of the

facts mentioned about the teacher in Hosanna-Tabor,

listing them into the teens. The Ninth Circuit’s

approach of toting up the numbers converts the legal

calculus into how closely analogous to the HosannaTabor teacher’s circumstances the next situation

happens to be.

Justice Thomas in his concurrence in

Hosanna-Tabor presciently warned of the temptation

to which the Ninth Circuit succumbed:

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

18 911 F.3d 603, 607-08 (9th Cir. 2018).

12

test

or

multi-factor

analysis

risk

disadvantaging those religious groups whose

beliefs, practices, and membership are outside

of the “mainstream” or unpalatable to some.

Moreover, uncertainty about whether its

ministerial designation will be rejected, and a

corresponding fear of liability, may cause a

religious group to conform its beliefs and

practices regarding “ministers” to the

prevailing secular understanding.19

The Ninth Circuit’s method is not only

impractical because, as Justice Thomas pointed out,

religious organizations vary greatly in purpose,

structure, mission, and doctrine; it also quickly runs

afoul of basic, First Amendment principles. It would

make Lutheran—Missouri Synod polity the

touchstone for future cases, to the disadvantage of

many other denominations and faiths. This has long

been condemned as forbidden by the Religion

Clauses. As this Court stated in Larson v. Valente,20

“The clearest command of the Establishment Clause

is that one religious denomination cannot be

officially preferred over another.”21

The Ninth Circuit’s method also founders as a

test of the reach of First Amendment protections

because, in making factual decisions as to which

565 U.S. at 197 (Thomas, J., concurring) (citing

Amos, 483 U.S. at 336)).

20 456 U.S. 228, 244 (1982).

21 Accord Fowler v. R.I., 345 U.S. 67, 69-70 (1953); see also

Niemotko v. Md., 340 U.S. 268, 272-73 (1951) (holding

that discrimination among religious denominations

violates equal protection guarantees).

19

13

employees are central enough to a religious

ministry’s purposes to qualify, judges would have to

decide which beliefs are important to a religious

organization and which are not. This would

necessarily involve courts in parsing religious

doctrine and divining the intent of religiously driven

decisions. Once again, this has long been understood

to be foreclosed by the Religion Clauses. As this

Court stated in Fowler v. Rhode Island, “it is no

business of courts to say that what is a religious

practice or activity for one group is not religion under

the protection of the First Amendment.”22

Finally, as Justice Thomas pointed out in the

passage quoted above, the Ninth Circuit’s approach

of adding up similarities and dissimilarities to the

church school teacher situation in Hosanna-Tabor

also has the very real risk of chilling the free exercise

of religion by religious groups and individuals. To try

to “fit” within that framework, they will be pressured

to take organizational steps or positions—ones that

they otherwise would not take.23 This, too,

22 345 U.S. at 70; see also Amos, 483 U.S. at 339; Serbian

E. Orthodox Diocese for U.S.A. and Can. v. Milivojevich,

426 U.S. 696, 708-09 (1976); Watson v. Jones, 80 U.S. 679,

728-29 (1871).

23 See Amos, 483 U.S. at 336 (“[I]t is a significant burden

on a religious organization to require it, on pain of

substantial liability, to predict which of its activities a

secular court will consider religious. The line is hardly a

bright one, and an organization might understandably be

concerned that a judge would not understand its religious

tenets and sense of mission. Fear of potential liability

might affect the way an organization carried out what it

understood to be its religious mission.”); id. at 344

(Brennan, J., concurring) (“A case-by-case analysis for all

14

demonstrates that the Ninth Circuit’s approach does

not comport with the First Amendment. 24

Finally, allowing the judiciary to determine

which employees qualify as “ministers” for purposes

of the exception invites inconsistencies that will be

viewed as simply reflections of the personal

predelictions and understandings of the particular

judges deciding the case. Indeed, Judge Nelson

pointed out in his dissent to the denial of an en banc

rehearing25 that, while the Biel panel found that a

Catholic elementary school teacher who teaches

religion every day was not religious enough for the

ministerial exception to apply, another Ninth Circuit

panel a year earlier in Kennedy v. Bremerton School

District26 found the Religion Clauses were not

violated when a high school coach was fired when he

kneeled by himself on the field after a football game,

reasoning that his job was “akin to being a teacher”

and that he served as “a role model and moral

exemplar” to students who would see his kneeling as

a religious act.27

Courts are in a precarious position when they

take on the task of deciding which positions have

activities therefore would both produce excessive

government entanglement with religion and create the

danger of chilling religious activity.”).

24 See Bd. of Airport Comm’rs of LA v. Jews for Jesus, Inc.,

482 U.S. 569, 574 (1987) (relaxing normal standing rules

when regulation may chill First Amendment expression);

Broadrick v. Okla., 413 U.S. 601, 612 (1973) (same).

25 926 F.3d 1238, 1250 (9th Cir. 2019) (Nelson, J.,

dissenting from denial of rehearing en banc).

26 869 F.3d 813 (9th Cir. 2017).

27 Id. at 825-27.

15

sufficient

religious

significance

to

religious

organizations for purposes of the ministerial

exception. It is a task foreclosed to them by the

Religion Clauses.

III.

Justice Thomas’s Approach to

Determining the Scope of the Ministerial

Exception Is the Correct One.

This question remains: What approach should

the Court adopt to guide future determinations of

whether a religious organization’s employee qualifies

under the ministerial exception? These consolidated

cases provide the opportunity to affirm that the First

Amendment does not allow the government to

second-guess the sincere decision of a religious

organization with respect to who must carry out its

mission.

The majority in Hosanna-Tabor declined to set

out any specific test that could be used in future

cases.28 It found only that, on the facts of that case,

the employment decision of the church school with

respect to a teacher was not reviewable by the

government.29

Justice Alito in his concurrence at least

implicitly warned that courts should not do what the

Ninth Circuit did by treating the Hosanna-Tabor

facts as the touchstone for determining which

employees were covered by the ministerial exception.

He did not attempt to set out a comprehensive test,

though. Instead, he posited a broader definition of

28 565 U.S. at 190.

29 Id.

16

those who were, at a minimum, covered by the

exception: one who “leads a religious organization,

conducts worship services or important religious

ceremonies or rituals, or serves as a messenger or

teacher of its faith.”30

Justice Alito’s expanded definition of

“minister” certainly incorporates those whom

religious organizations consider as important to their

ministries. But his formulation is only a listing of

non-exhaustive descriptors; it does not purport to be

a definition encompassing the universe of covered

“ministers.”31 As a result, Justice Alito’s definitions

do not set out a workable rule for all cases. Justice

Thomas in his concurring opinion does so, and that is

the test that this Court should adopt.

Justice Thomas’s formulation is simply this:

The Religion Clauses require courts to defer to a

religious organization’s good-faith understanding of

who qualifies as its “minister.”32 Stated more

generally, First Amendment protections reach any

employee of a religious organization that the

organization sincerely believes must adhere to its

faith and conduct principles for it to best accomplish

its ministries.33

30 Id. at 199 (Alito, J., concurring).

31 Id.

32 Id. at 196 (Thomas, J., concurring).

33 Cf. NLRB v. Cath. Bishop of Chi., 440 U.S. 490, 501-04

(1979) (finding Congress did not intend to give NLRB

jurisdiction over church-related schools in part because it

would raise First Amendment issues).

17

The error and inconsistency in treating either

the

Hosanna-Tabor

majority’s

particularized

description of the teacher’s characteristics or Justice

Alito’s more generic, “functional” definition as the

controlling test is shown in the case law interpreting

the exception in the wake of Hosanna-Tabor—even

among those decisions that, unlike the Ninth Circuit,

found the exception applicable. For instance, in

Grussgott v. Milwaukee Jewish Day School, Inc.,34

the Seventh Circuit, while recognizing that this

Court “declined” in Hosanna-Tabor “to delineate a

clear test for determining who is a ministerial

employee,”35 proceeded to match up the teacher in

that case with the one in Hosanna-Tabor, finding two

parts of the analysis did not weigh in her favor, i.e.,

her title of “grade school teacher” and how she

“presented herself to the public.”36 The court found

these more than counterbalanced when it analyzed

the “substance” of her responsibilities and whether

they were sufficiently “religious” in function, wading

into the question of whether her instruction was

merely “secular” or “cultural,” rather than

“religious.”37

To its credit, the Seventh Circuit, when

finding in favor of the school, stated what should be

the controlling rules.

It first noted that it is

inappropriate for courts to draw “a distinction

between secular and religious teaching . . . when

34 882 F.3d 655 (7th Cir. 2018).

35 Id. at 657.

36 Id. at 659.

37 Id. at 659-60; see also Meek v. Pittenger, 421 U.S. 349,

370 (1975) (noting difficulty of separating the religious

from the secular in a church school setting).

18

doing so involves the government challenging a

religious institution’s honest assertion that a

particular practice is a tenet of its faith. . . . And not

only is this type of religious line-drawing incredibly

difficult, it impermissibly entangles the government

with religion.”38 What the Seventh Circuit failed to

note is that, if it had applied these principles, its

prior factual analysis of whether the teacher was or

was not involved in sufficiently “religious”

instruction in the court’s eyes should have been

avoided. Instead, as the Seventh Circuit concluded in

tracking the substance of what Justice Thomas

proposed as the governing rule in Hosanna-Tabor,

“This does not mean that we can never question a

religious organization’s designation of what

constitutes religious activity, but we defer to the

organization in situations like this one, where there

is no sign of subterfuge.”39

The Second Circuit in Fratello v. Archdiocese

of New York40 also applied the four-category fact

analysis it distilled from the majority decision in

Hosanna-Tabor in deciding that a principal of a

Catholic school qualified for the ministerial

exception. In doing so, the Second Circuit recognized

that “courts are ill-equipped to assess whether, and

to what extent, an employment dispute between a

38 882 F.3d at 660 (citing Amos, 483 U.S. at 343 (Brennan,

J., concurring); Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203, 306 (1963) (Goldberg, J., concurring)).

39 Id.; see also Hosanna-Tabor, 565 U.S. at 196 (Thomas,

J., concurring); id. at 199 (Alito, J., concurring) (exception

applies if “religious group believes” employee performs

key functions described).

40 863 F.3d 190 (2d Cir. 2017).

19

minister and his or her religious group is premised

on religious grounds.”41 Noting that the majority

decision in Hosanna-Tabor explicitly disclaimed

setting out a “rigid formula,” the Second Circuit

found Justice Alito’s concurrence “both persuasive

and extremely helpful” and applied a more

“functional” test.42

Nevertheless, the court walked through the

four categories this Court’s majority focused on for

the school teacher in Hosanna-Tabor, weighing the

significance of the principal’s title, assessing whether

her functions and job qualifications were sufficiently

“religious,” and analyzing her use of her title in

public settings.43 While the Second Circuit concluded

that “she held herself out as a spiritual leader” and

that she “performed many important religious

functions to advance [the school’s] Roman Catholic

mission,” thus finding her to fall under the

ministerial exception, this type of analysis itself

violates the basic principle that courts are

incompetent to judge the religious mission of an

organization and which employees must adhere to

the organization’s tenets of faith and practice in

order for the organization to fulfill that mission as it

sees best. As the Second Circuit observed earlier in

its decision,

Judges are not well positioned to determine

whether ministerial employment decisions rest

on practical and secular considerations or

fundamentally different ones that may lead to

41 Id. at 203.

42 Id. at 204-05.

43 Id. at 207-09.

20

results that, though perhaps difficult for a

person not intimately familiar with the religion

to understand, are perfectly sensible—and

perhaps even necessary—in the eyes of the

faithful. In the Abrahamic religious traditions,

for instance, a stammering Moses was chosen to

lead the people, and a scrawny David to slay a

giant.44

In Cannata v. Catholic Diocese of Austin,45 the

Fifth Circuit dealt with perhaps the “hardest” case

for the religious organization of those decided under

Hosanna-Tabor, hardest because the employee

arguably matched up in only one of the four fact

categories the Hosanna-Tabor majority relied upon.

The church fired its music director, and he claimed to

have no religious duties, as he only played the piano

and ran the sound system at mass and performed a

few, internal, administrative responsibilities for the

music program. The Fifth Circuit, relying on the

sworn statement of the priest that music was an

integral and important part of the mass, ruled that

the ministerial exception applied. It disallowed the

employee’s contrary statement that his duties were

not religious because that contention was a challenge

to church doctrine, a challenge that “government is

foreclosed from deciding by the Religion Clauses”:

“we may not second-guess whom the Catholic Church

may consider a lay liturgical minister under canon

law.”46 In so ruling, the Fifth Circuit relied on both

44 Id. at 203.

45 700 F.3d 169 (5th Cir. 2012).

46 Id. at 177-80; see also Sterlinski v. Cath. Bishop of Chi.,

934 F.3d 568 (7th Cir. 2019) (finding church organist

covered by exception).

21

Justice Thomas’s and Justice Alito’s concurrences,

concluding that the church had established the

“importance” of music to the mass and that the

employee had performed an “important” function

during the service.47

But one must ask what the result would have

been if the Fifth Circuit had considered the duties of

the music director not to be “important” to the

ministry, but only “tangential” or “peripheral.”

Although Justice Alito included among those who

obviously qualified as a “minister” for purposes of the

exception personnel who are “essential” or

“important” to “key” and “important” religious

activities,48 he at the same time declined to secondguess the “importance” to the school of the teacher’s

firing because of its stated reason that she had

violated the church doctrine of internal dispute

resolution. In doing so, he reasoned as follows:

The credibility of Hosanna-Tabor’s asserted

reason

for

terminating

respondent’s

employment could not be assessed without

taking into account both the importance that

the Lutheran Church attaches to the doctrine of

internal dispute resolution and the degree to

which that tenet compromised respondent’s

religious function. If it could be shown that this

belief is an obscure and minor part of Lutheran

doctrine, it would be much more plausible for

respondent to argue that this doctrine was not

the real reason for her firing. If, on the other

hand, the doctrine is a central and universally

47 700 F.3d at 180.

48 565 U.S. at 199, 204 (Alito, J., concurring).

22

known tenet of Lutheranism, then the church’s

asserted reason for her discharge would seem

much more likely to be nonpretextual. But

whatever the truth of the matter might be, the

mere adjudication of such questions would pose

grave problems for religious autonomy: It would

require calling witnesses to testify about the

importance and priority of the religious doctrine

in question, with a civil factfinder sitting in

ultimate judgment of what the accused church

really believes, and how important that belief is

to the church’s overall mission.

....

What matters in the present case is that

Hosanna-Tabor believes that the religious

function that respondent performed made it

essential that she abide by the doctrine of

internal dispute resolution; and the civil courts

are in no position to second-guess that

assessment.49

This states the law properly, and it harmonizes

Justice Alito’s views with those articulated by Justice

Thomas. The Religion Clauses require courts to give

full credit to a religious organization’s good-faith

judgment as to which employees are its ministers.

Justice Brennan stated it cogently in Amos: “we

deem it vital that, if certain activities constitute part

of a religious community's practice, then a religious

49 Id. at 205-06 (Alito, J., concurring); see also Sterlinski,

934 F.3d at 570; cf. Amos, 483 U.S. at 339 (noting that

requiring a court to determine what duties are “secular”

and what are “religious” would be an “intrusive inquiry

into religious belief” of a religious group).

23

organization should be able to require that only

members of its community perform those

activities.”50

IV.

Several Amici Demonstrate the

Importance That This Court Adopt

Justice Thomas’s Test for the Exception.

Justice Thomas’s formulation is critically

important for several of your amici, for the simple

reason that they do not fit easily into normal

religious classifications or, in the case of the church

school, do not track the organizational structure of

the Lutheran-Missouri Synod church school in

Hosanna-Tabor. Amicus Billy Graham Evangelistic

Association focuses principally on one aspect of the

mission of the Christian Church, evangelization.

BGEA believes that the work of evangelism is

primarily a spiritual endeavor that requires unity of

purpose and belief. BGEA conducts regular

devotional activities and provides other resources

and opportunities intended to enhance each

employee’s relationship with Jesus Christ and,

consequently, their personal spiritual preparedness

to serve effectively in the organization. But it does

not, like a local church, conduct normal worship

services in a church building. BGEA also provides

religious instruction through a variety of means and

media. But it does not, like a Christian school, teach

or catechize in a typical classroom setting. It is an

ecumenical ministry supported by thousands of

individuals and churches. In its employ are those

who fit comfortably into most definitions of minister,

such as its evangelists who preach at its evangelistic

50 483 U.S. at 342-43 (Brennan, J., concurring).

24

crusades. But there are other employees who work

with local churches to organize its evangelistic

events and follow up with those who respond to its

invitation to believe in Jesus Christ. And other

employees run associated evangelistic ministries,

such as the Billy Graham Library in Charlotte;

digital, radio and television broadcasts; telephone

ministry and internet evangelism; and BGEA’s Rapid

Response Team that dispatches crisis-trained

chaplains to assist persons beset by natural and

man-made disasters when and where they strike. All

of these employees—and yet others whose positions

BGEA’s leadership determined would somehow

support and extend its evangelistic efforts—are

instrumental to its religious mission. As a result,

BGEA requires each of them to share the ministry

goals and to adhere to the standards of conduct and

belief in its employee handbook as reproduced above

and in the appendix. (App’x 1a-3a.)

Amicus Samaritan’s Purse as its principal

mission focuses on another aspect of the calling of

the Christian Church—reaching out to those in need

of material assistance, while at the same time

presenting the answer to each person’s spiritual

needs with the good news of Jesus Christ. This

ministry is not subservient to that of evangelization,

but complementary to it; it is also a ministry to

which Christians are called. All Samaritan’s Purse

employees are actively involved in its daily devotions

and prayer ministry, and they directly further the

mission of the organization by interacting with

donors, the community at large, and those they

assist. They are literally the hands of Christ as they

meet the needs of others and, as a result,

Samaritan’s Purse requires all its employees to

25

commit to its Statement of Faith and Code of

Christian Conduct.

Otherwise, its important,

spiritually-driven mission would be undermined.

Amicus Forcey Christian School has many of

the same goals as the school in Hosanna-Tabor, but

its supporting church is non-denominational and

does not have the liturgical formality of Lutheran—

Missouri Synod churches. For instance, the school’s

teachers, while engaged in leading devotionals with

their children, are not “ordained” or required to be

members of the sponsoring church. However, all its

teachers and administrators are required to affirm a

statement of faith and conduct, and the church and

school sincerely believe that, to carry out the mission

of the school fully, such affirmation is essential.

(App’x 4a-12a.)

Amicus

Congressional

Prayer

Caucus

Foundation has the explicit religious purpose of

preserving and promoting the use of prayer and

other religious expression in the public square. To

fulfill that mission, it requires its employees to pray

daily as a group and to affirm a Christian statement

of faith. (App’x 13a-21a.)

Amicus ICECE is a ministry assisting our

country’s armed forces and serving explicitly

religious purposes, including the placement of

chaplains who are not sponsored by established

denominations.

In performing these religious

services, ICECE member chaplains must rely on

volunteer religious leaders and workers who provide

teaching and other ministries, such as music and

counseling, but who often are not ordained or from

the chaplain’s own faith group. An ICECE chaplain

26

has a duty in representing his sending church to

make sure the beliefs and practices of volunteers or

leaders who provide supporting services are in

harmony with church doctrine and practice, as

exhibiting a consistent religious message is critical to

effective ministry.

To suggest that courts are competent to

determine whether particular personnel of nontraditional ministry organizations like these amici

are “essential” or “important” by analogizing to the

teacher in Hosanna-Tabor, or by any other artificial

yardstick, conflicts with basic First Amendment

principles. Courts have no more competence to judge

the sincerity of a religious organization’s decision in

such matters than they have to judge religious

beliefs of an individual.51

Religious organizations draw the line for

which employees must adhere to the organization’s

faith and practice to meet its mission at different

places, but it is always a line informed by the

organization’s own religious beliefs. It is critical to

these groups that the government, through its antidiscrimination laws, not be allowed to restrict the

free exercise of their religion when they make those

decisions about their ministries.

CONCLUSION

The Ninth Circuit’s decisions should be

reversed. Before further encroachments are made on

the First Amendment freedoms of religious

organizations, this Court should provide additional

51 See Thomas v. Review Bd., 450 U.S. 707, 712-15 (1981).

27

guidance to the lower courts in this critically

important area by adopting Justice Thomas’s rule as

stated in his concurrence in Hosanna-Tabor.

Respectfully submitted

this 10th day of February 2020,

/s/ Frederick W. Claybrook, Jr

Frederick W. Claybrook, Jr.

Counsel of Record

Claybrook LLC

700 Sixth St., NW, Ste. 430

Washington, D.C. 20001

(202) 250-3833

Rick@Claybrooklaw.com

Steven W. Fitschen

James A. Davids

National Legal Foundation

524 Johnstown Road

Chesapeake, VA 23322

David A. Bruce

205 Vierling Dr.

Silver Spring, Md. 20904

1a

APPENDIX

Excerpts from Billy Graham Evangelistic

Association Employee Handbook

I. BGEA and Your Ministry Employment

....

b. Mission Statement (01.02)

Continuing the lifelong work of Billy Graham, the

Billy Graham Evangelistic Association exists to

support and extend the evangelistic calling and

ministry of Franklin Graham by proclaiming the

Gospel of the Lord Jesus Christ to all we can by

every effective means available to us and by

equipping the church and others to do the same.

c. Distinct Objectives

• Represent Jesus Christ—Serve as ambassadors for

Christ in the public square.

• Cultivate prayer—Engage the church in prayer to

empower evangelism and discipleship.

• Proclaim the Gospel—Spread the Gospel of the

Lord Jesus Christ to all we can by every effective

means available to us.

• Disciple New Believers—Engage new believers and

transition them to local, Bible-teaching churches.

• Equip the Church for Evangelism—Provide

training and tools to equip the church in evangelism.

• Demonstrate Love in Action—Support the church

in meeting practical human needs.

2a

....

e. Christian Conduct (08.01)

As an ambassador of the Gospel of Jesus Christ and

of BGEA, each employee is expected to exhibit

conduct consistent with the highest degree of moral,

ethical, and Biblical integrity and fidelity. BGEA’s

standards for evaluating Christian conduct include

its Statement of Faith, Mission Statement,

Hallmarks, and various policies, as well as other

written or verbal guidance that may be provided

from time to time. BGEA has the right and discretion

to consider all of an employee’s conduct, whether at

work or away from work, in order to determine

consistency with its expectations for those members

of the body of Christ serving in this ministry.

....

h. Expectations for Ministry Employment

All employees must indicate and demonstrate

ongoing agreement with the following expectations:

• I acknowledge that the Lord Jesus Christ is my

personal Savior and that I am a personal

representative of Him.

• I understand that BGEA is a Christian

organization whose purpose is proclaiming the

message of the Gospel of the Lord Jesus Christ

throughout the world. • I agree that the purpose of

my employment with BGEA is to further its

Christian purpose and that I am prepared to support

its work through prayer and to assist in

accomplishing BGEA’s mission.

3a

• I understand that I must exhibit conduct that is

consistent with BGEA’s expectations, whether at

work or away from work, in keeping with Scriptural

teachings and principles as set forth in God’s Word,

BGEA’s Statement of Faith, and BGEA’s policies,

including Christian Conduct.

• I understand that BGEA has the right and the

responsibility to ensure that its Christian religious

purpose is carried on with the highest standards and

is not harmed or impeded by conduct that is

inconsistent with the Bible, BGEA’s Statement of

Faith, its Christian religious purpose, or its policies.

• I understand that any of my conduct that is not in

keeping with Scriptural teachings and principles as

set forth in God’s Word, BGEA’s Statement of Faith,

and BGEA’s policies is inconsistent with BGEA’s

Christian religious purpose.

• I understand that if my conduct is determined by

BGEA to be inconsistent with its Christian religious

purpose, the result will be corrective action up to and

including termination from employment.

4a

Excerpts from Forcey Christian School

Faculty Handbook 2019-2020

HISTORY OF FORCEY CHRISTIAN SCHOOL

....

Forcey Christian School operates under the auspices

of the Forcey Education Association, a non-profit

corporation affiliated with Forcey Bible Church. . . .

Please uphold Forcey Christian School, its staff and

students, in your daily prayers.

MISSION AND VISION OF FORCEY

CHRISTIAN SCHOOL

The FCS Vision: FCS seeks to educate students to

reach their full potential spiritually, academically,

cognitively, physically, socially and emotionally; who

pursue an enduring intimacy with Jesus Christ, and

engage believers and non-believers in their lifelong

journey for His glory.

The FCS Mission: The mission of Forcey Christian

School is to provide sound, excellent, biblically-based

education to the children of our church and

community in a Christ-centered school environment

where they learn under born-again, professional

teachers in rigorous academic programs that will

develop them into highly capable students, imbued

with the disciplines of Christian life and Christ-like

character for the benefit of society. (Rom. 12:1-2,

Matt 28: 18-20, Eph. 4: 1-16)

....

5a

Philosophy and Purpose:

The school functions as a ministry of FBC to the

community. The school is founded on the belief that

God has purposefully provided the foundation for

Christian education by creating all things and

providing us with His written word through His Son

and the Holy Spirit.

In our view, Christian

education is a response to God’s desire to teach and

train students to know, love and obey the Triune God

and to relate all knowledge, skill, and life practice to

Him. Forcey Christian School holds the conviction

that God’s plan appoints parents to be responsible for

the education and development of their children

(Ephesians 6:1-4 and Deuteronomy 6:4-9).

The

general purpose of FCS is to assist parents with this

responsibility, and to lead and support students in

discovering and developing their unique God-given

abilities.

FCS teaches truth from a Biblical

worldview in an atmosphere of Christian love and

discipline, striving to develop in the student’s life a

proficiency in academic skills, godly character traits,

and a life of service towards the Savior. Leading

students to become more fully devoted followers of

Christ is the school’s highest priority. Through our

daily program, the students are made aware of God

the Creator and of His special love for each one of

them.

Bible studies that reveal God’s care,

protection, and leadership will be presented to

ensure a firm foundation of trust in our caring,

loving, and holy God. The Bible is presented in all

classes as the source book for life, and Jesus Christ is

introduced as the Son of God, the Savior. Forcey

Christian School welcomes students without regard

to race, sex, or nationality. As part of Forcey Bible

6a

Church, the school operates independently of state

regulation and control, but will adhere to state and

county health and safety standards.

FCS is

committed to providing an educational environment

that encourages learning under the tutelage of

professional, committed Christian teachers.

....

CORE VALUES

• We recognize that parents bear the primary

responsibility for their child's education, and we

are committed to working with them and their

church to disciple each student.

• We make a commitment to maintain academic

excellence and to maximize every student's

potential.

• We are committed to hiring staff members who

are passionate, devoted followers of Christ who

love students.

• Students will learn how to process information

and to think critically in the context of a biblical

worldview.

• All students matter to God and have a right to

learn in a safe and secure environment.

• We will ensure that discipline will be purposeful,

directed toward the goal of self-discipline.

• Students are taught to love God with all their

heart, soul, mind, and strength and to love their

neighbor as themselves.

• We are committed to creating an environment

where the pursuit of full devotion to Christ is

expected and includes developing the habits of

personal responsibility and servanthood.

7a

....

APPENDIX 1: TEACHERS’ CODE OF ETHICS

Overview

Forcey Christian School teachers, believing that each

child is an image-bearer of God, recognize the

importance of helping students to grow academically,

physically, socially and spiritually. FCS teachers

accept the responsibility of adhering to the highest

ethical standards, acknowledging that God has called

them to the profession and has placed them in the

classroom not only to teach, but to model Christ in

their speech, conduct and relationships within the

school community.

I. The Teacher’s Commitment to Students

“Instruct them to do good, to be rich in good works, to

be generous and ready to share, storing up for

themselves a good foundation for the future, so that

they can take hold of that which is life indeed.”

(I Timothy 6:18)

The Forcey Christian School Teacher:

1.

2.

3.

4.

5.

Treats each child with respect, recognizing that

each possesses unique, God-given talents and

ability levels.

Demonstrates the fruit of the Spirit: love, joy,

peace,

patience,

kindness,

goodness,

faithfulness, gentleness and self-control.

Uses authority wisely and lovingly.

Exercises discipline justly and fairly.

Does not reveal confidential information

concerning students unless disclosure serves an

appropriate professional purpose.

8a

6.

Does not discriminate against any student on

the basis of race, color, sex, national or ethnic

origin

and

protects

students

from

discrimination.

II. The Teacher’s Commitment to Colleagues

“Let all be harmonious, sympathetic, brotherly,

kindhearted and humble in spirit.” (I Peter 3:8)

The Forcey Christian School Teacher:

1.

2.

3.

4.

Demonstrates honesty, love, respect, support

and encouragement toward colleagues, publicly

and privately.

Builds a collegial team through prayer and

cooperation.

Resolves differences with honesty and dignity

and in a loving manner.

Is respectful towards the administration and the

board and supports the expressed mission and

vision of the school.

III. The Teacher’s Commitment to Parents

“Children, obey your parents in the Lord, for this is

right.” (Ephesians 6:1)

The Forcey Christian School Teacher:

1.

2.

Makes every effort to establish a partnering

relationship with parents of students, realizing

they share the common goal of a quality, Christcentered education.

Keeps parents informed of their student’s

academic, social and spiritual development.

9a

3.

4.

Is respectful and understanding of the

traditions of diverse cultures represented in the

classroom.

Keeps confidential all information pertinent to

the student and family.

IV. The Teacher’s Commitment to

Professionalism

“Whatever you do, do your work heartily, as for the

Lord.” (Colossians 3:23)

The Forcey Christian School Teacher:

1.

2.

3.

Seeks opportunities to grow professionally.

Adheres to contractual conditions and strives to

perform all duties and responsibilities with

excellence.

Admirably represents the teaching profession

and the school throughout the community with

a life of integrity, honoring God.

APPENDIX 2: FCS LIFESTYLE STATEMENT

Forcey Christian School is a religious, nonprofit

organization representing Jesus Christ throughout

the local community. FCS requires its employees to

be born-again Christians, living their lives as

Christian role models (Rom. 10:9–10, 1 Tim. 4:12,

Luke 6:40) and conducting themselves in a way that

will not raise questions regarding their Christian

testimonies.

A lifestyle based on Biblical standards of moral

conduct should demonstrate integrity, appropriate

personal and family relationships, professional

conduct, and moral behavior. An employee is

10a

expected to display a teachable spirit, an ability to

share love for others, a willingness to live

contentedly under authority, and a commitment to

follow the Matthew 18 principle when an issue arises

with fellow employees or the administration.

Moral misconduct, which violates the bona fide

occupational qualification for employees to be

Christian role models, includes, but is not limited to,

promiscuity, homosexual behavior or any other

violation of the unique roles of male and female.

(Rom. 1:21-27; I Cor. 6:9-20). Forcey Christian School

believes that biblical marriage is limited to a

covenant relationship between a man and a woman.

FCS employees who fail to maintain a lifestyle based

on biblical standards of conduct may be subject to a

reprimand or, in some cases, dismissal from

employment. It is the goal of FCS that each employee

will have a lifestyle where “…He might have the preeminence.” Col. 1:18.

I declare that I am in agreement with the above

statements. My signature below indicates that I meet

the moral integrity standards and Christian role

model lifestyle requirements of FCS.

Applicant's signature:

_________________________________

Date:_____________________

Supervisor's signature after discussion:

_____________________________________________

11a

APPENDIX 3: DECLARATION

OF MORAL INTEGRITY FORM

Our school expects all of its employees, as well as its

volunteers who have unsupervised access to children,

to model the same Christian values and lifestyle that

it seeks to inculcate in its students. As an applicant

for a ministry position as an employee or as a

volunteer at this school, I, (print name)

_________________________________________,

recognize, understand, and agree to live by the

Christian moral standards of the school.

I declare that as a follower of Christ, I am not

engaging in and commit to not engage in

inappropriate sexual conduct. Inappropriate

conduct includes, but is not limited to, such

behaviors as the following: heterosexual activity

outside of marriage (e.g., premarital sex,

cohabitation, extramarital sex), homosexual

activity, sexual harassment, use of (including the

viewing of) pornographic material or websites,

and sexual abuse or improprieties toward minors

as defined by Scripture and federal or state law.

I declare that the above statement is factual and true.

My signature below indicates that I meet the moral

integrity standards and Christian role model lifestyle

requirements of Forcey Christian School.

__________________________________________________

Applicant’s signature

Date

12a

__________________________________________________

Administrator’s signature after discussion with

applicant/volunteer

_____________________ Date

“Honor marriage, and guard the sacredness of sexual

intimacy between wife and husband. God draws a

firm line against casual and illicit sex.” (Hebrews

13:4, The Message)

“A pupil is not superior to his teacher, but everyone

[when he is] completely trained (readjusted, restored,

set to rights, and perfected) will be like his teacher.”

(Luke 6:40, AMP)

13a

Excerpts from Congressional Prayer Caucus

Foundation, Inc., Employee Commitment

Our Vision

Protect religious freedom, preserve America’s JudeoChristian heritage and promote prayer.

....

Prayer with Employees

A private prayer time has been set for Staff, and all

Staff are required to join in prayer every day at the

designated time.

....

Calling

Our calling includes both introduction to and

encouragement to remain in a life of full devotion to

Jesus Christ (Colossians 3:17). We are charged with

encouraging, equipping, serving and sustaining

Christians. We do this by displaying our Christian

philosophies, values, missions and goals in

ministerial, members, employees and volunteers and

those whom our Foundation serves. Overt religious

purpose, as well as related religious purpose all serve

as methods that the Congressional Prayer Caucus

Foundation utilizes to instill our religious values and

beliefs, both expressly and by example. Guided by

Holy Scripture and the Holy Spirit, the

Congressional

Prayer

Caucus

Foundation’s

14a

Governing

Documents,

Doctrines,

Mission

Statement, Statements of Faith, Job Responsibility,

Positional Statements, Handbooks, Agreements and

Contracts and Website or Social Media Content

reflect our calling and all ministerial, members,

employees and volunteers are therefore subject to

them including discipline, mediation and termination

policies.

Community

The Congressional Prayer Caucus Foundation is

dedicated to serving and providing for its community.

We exist to foster a Christ-like environment of

persons subscribing to our religious beliefs and faith.

We believe that our success is derived from

participating in a larger religious community. For

this reason, individual members of our body play a

large role in furthering our mission and viewpoint as

a Foundation.

Associating with like-minded Christians reinforces

the Congressional Prayer Caucus Foundation’s

Christian purpose and is vital to the perpetuation of

our faith (2 Corinthians 6:14, 2 John 1:9-11, 1

Corinthians 15:33). We are committed to being and

making disciples who understand what it means to

follow Jesus Christ into a life of worship, fellowship,

sacrifice, service and being led by the Holy Spirit

(Matthew 28:19, Acts 1:8, John 15:16, Mark 16:15).

Our mission as the body of Christ is to participate,

share and encourage each other toward spiritual

growth (I Thessalonians 5:11, Hebrews 10:23-25,

Colossians 3:16).

15a

Involvement in our Foundation requires a tangible

commitment to our beliefs and mission as outlined in

the Congressional Prayer Caucus Foundation’s

Written Statements of Faith – and are therefore

subject to all of its discipline, mediation and

termination policies, which are incorporated herein

by reference, as if fully set forth herein.

Expression of Faith

The Congressional Prayer Caucus Foundation

intends to transmit our system of religious beliefs,

tradition, Christian morals, reverence and values.

We do so by engaging in the community and

individuals’ lives and through all activities in which

we participate. Likewise, we believe that all behavior

of members and representatives of the Foundation is

communicative in nature, exemplifying and

expressing our faith, both publically and privately (1

Peter 2:12). Any member or representative who

propounds a point of view contrary to our beliefs as

stated in our Written Statements of Faith, which are

incorporated herein by reference as if fully set forth

herein, will impair the Congressional Prayer Caucus

Foundation’s integrity and ability to disseminate its

religious views and message (James 4:4, 1

Corinthians 5:11-12) and therefore, are subject to

discipline, mediation and termination policies, which

are incorporated herein.

Outreach

We take very seriously the Biblical charge to be a

Christian presence in a secular world (Matthew 5:1416). Therefore, all activities that the Congressional

Prayer Caucus Foundation engages in are intended

16a

to further its religious purpose, as stated in our

Mission Statement. As such, all of our activities are

considered an outgrowth of the Congressional Prayer

Caucus Foundation’s mission to protect religious

freedom,

preserve

America’s

Judeo-Christian

heritage and promote prayer.

....

Discipline, Mediation and Termination Policy

The Congressional Prayer Caucus Foundation is an

organization representing the Christian church and

as such strives to present our doctrine in its fullness.

We further affirm that we hold, believe and practice

all that the Christian church teaches, believes and

proclaims to be true, as set forth in our Written

Statements of Faith, whether from the natural moral

law or revelation from God through Holy Scripture

and traditional teachings of the Christian church.

The Congressional Prayer Caucus Foundation

acknowledges that all ministerial, members,

employees and volunteers who engage in this

Foundation have a higher calling, according to which

they must not only avoid public contradiction of their

status as professional agents in the mission of the

Foundation, but are also called to conform their

hearts, minds and consciences, as well as their public

and private behavior, ever more closely to the truths

taught by Holy Scripture and through the

Foundation. Recognizing as we do that no person can

give perfect witness to these truths, the

Congressional

Prayer

Caucus

Foundation

professionals are nevertheless called to strive for

assent and fidelity.

17a

Failure to perform in accordance with the terms and

conditions of this contract as stated herein and in the

Written Statements of Faith are subject to discipline,

mediation and/or termination. Any activity or the

support of activities which espouse beliefs contrary to

the Congressional Prayer Caucus Foundation’s

teaching and Statements of Faith are sufficient cause

for termination. Further, refusal to foster, repeat,

advertise or disseminate views, messages or

statements in accordance with the Congressional

Prayer Caucus Foundation’s own can lead to

termination.

....

Final Authority

The Executive Director, President and Board of

Directors is the final authority on (1) scripture, faith,

morals and discipline; (2) formal employment or

membership requirements vis-à-vis eligibility,

morals, discipline, removal and rescission; (3)

Statements of Faith and Policy; (4) Standards of

Morals and Conduct; (5) internal dispute resolution;

and, (6) enforcement of conformity of belief and

practice relating to religious teaching and practice.

Any ministerial, member, employee or volunteer may

seek to clarify the Congressional Prayer Caucus

Foundation’s Positional Statements, Statements of

Faith and any other policy or belief in question.

Individuals should set an appointment with a

member of the final authority on such issues to

clarify his/her understanding.

Mediation

18a

Ministerials, members, employees or volunteers

submit to the designated final authority of the

Congressional Prayer Caucus Foundation to resolve

any disputes relating to policies and practices. Any

ministerial, member, employee or volunteer may

seek to move to mediation with a final authority and

optional external third party to discuss the

Congressional

Prayer

Caucus

Foundation’s

Positional Statements, Statements of Faith and any

other policy or belief in dispute. Individuals should

set an appointment with a member of the final

authority to proceed to mediation.

Automatic Termination Clause

All ministerial, member, employee or volunteer must

recognize the religious nature of the Congressional

Prayer Caucus Foundation and agree that the

Foundation has the right to dismiss one for public

immorality, scandal or rejection of the official

teachings, doctrine or policies, thereby terminating

any and all rights that one may have hereunder

resulting in automatically forfeiture of all privileges

for any conduct or avocation of conduct that stands in

contradiction to the Foundation’s stated beliefs,

policies and mission as set forth herein. Such

contrary beliefs or practices would make me unfit to

advance the Foundation’s mission as it would impede

and burden the integrity and religious mission of the

Foundation.

....

Employee Commitment

19a

The following is a declaration of statements we

believe each employee affiliated with the

Congressional Prayer Caucus Foundation can agree

with and commit to uphold in keeping with the spirit

and mission of the Congressional Prayer Caucus

Foundation

I believe







That Jesus Christ is the Son of God; was

crucified, died and was resurrected; is the Way

the Truth and the Life; and to see the kingdom

of God a person must be born again and choose

to follow Jesus Christ as Lord and Savior.

That the Bible is the inspired Word of God.

That the Holy Spirit indwells every believer

and His power and gifts are active today.

20a

Excerpts from International Conference Of

Evangelical Chaplain Endorsers Bylaws

II. Purposes and Responsibilities

ICECE’s purposes and responsibilities are:

a. To serve as a liaison between affiliated

Endorsers and the Armed Forces, Veterans

Administration, Bureau of Prisons, Emergency

Services and other agencies that require

chaplaincy services under the Free Exercise

Clause of the U.S. Constitution or to maintain

professional standards and necessary spiritual

support, and to manifest to them and the

nation that there are common areas of

spiritual and moral convictions and concerns

to which those within the Conference affirm

united commitment.

....

III.

Membership

a. Members shall hold as matters of faith and

conviction the seven faith statements listed

below, the rejection of which in word or

practice

shall

constitute

a

voluntary

withdrawal from ICECE.

i.

The Bible is the inerrant, infallible Word

of God and the absolute standard for

moral conduct, faith and practice;

ii. The doctrine of the Trinity as defined by

the Athanasian Creed;

21a

iii.

That Jesus Christ is Lord, the only

begotten Son of God born of the virgin

Mary;

iv. Salvation through repentance and faith

in the redeeming sacrifice of Christ on the

cross;

v. The physical resurrection and ascension

of Jesus Christ, and His Second Coming;

vi. The New Testament standard for those

who rule the church and teach doctrine,

permits only ordained men to serve as

Chaplains; and,

vii. Marriage is the legal and blessed union of

one man, who is born a male, and one

woman, who is born a female.

....