Seventh and Second Circuits Split re Whether RFRA Amended the ADEA’s Ministerial Exception

BNA’s The United States Law Week (Volume 74 Number 38, Fri., Apr. 11, 2006, Page 1598, ISSN 1522-4317) is reporting on Tomic v. Catholic Diocese of Peoria, --- F.3d ----, 2006 WL 851640 (7th Cir. Apr. 4 2006):

"The First Amendment-based ministerial exception [to the Age Discrimination in Employment Act] precludes federal court adjudication of a church music director's age discrimination suit against the Roman Catholic diocese that dismissed him, the U.S. Court of Appeals for the Seventh Circuit held April 4 . . . . In so ruling, [the Seventh Circuit] took the opportunity to voice disagreement with the Second Circuit's recent conclusion . . . that the Religious Freedom Restoration Act amended the Age Discrimination in Employment Act to eliminate the ministerial exception."

In Tomic, the Seventh Circuit stated:

After the oral argument in this case, the Second Circuit held (over dissent) that the Religious Freedom Restoration Act [(RFRA)], 42 U.S.C. §§ 2000bb et seq. (which in the wake of City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), is limited to federal action, O'Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir.2003)) amended the [Age Discrimination in Employment Act (ADEA)] to wipe out the ministerial exception and substitute RFRA's standard, which requires deciding whether a particular law imposes a substantial burden on religious activity. Hankins v. Lyght, 438 F.3d 163, 169 (2d Cir.2006). The decision would if sound invalidate the many decisions in this and other circuits recognizing the ministerial exception to federal employment discrimination law. The decision is unsound. RFRA is applicable only to suits to which the government is a party. See 42 U.S.C. §§ 2000bb-1(b), (c); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1120-21 (9th Cir.2000); Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 834-35 (9th Cir.1999). “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.”42 U.S.C. § 2000bb-1(c).

It is hardly to be imagined, moreover, that in seeking to broaden the protection of religious rights, Congress, dropping nary a hint, wiped out a long-established doctrine that gives greater protection to religious autonomy than RFRA does. Indeed a serious constitutional issue would be presented if Congress by stripping away the ministerial exception required federal courts to decide religious questions. The exception is based on the establishment and free-exercise clauses of the First Amendment, see, e.g., Combs v. Central Texas Annual Conference of United Methodist Church, supra, 173 F.3d at 350; Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir.1985), which place tight limits on governmental authority to regulate religion. In the Catholic Bishop case, the majority adopted a strained interpretation of the National Labor Relations Act in order to avoid confronting this constitutional issue. The dissent thought the strain too great, but did not deny the existence of such an issue, or intimate a view on how it should be resolved. 440 U.S. at 517-18, 99 S.Ct. 1313.

BNA subscribers can view the article on Tomic by clicking here.