August 6, 2010
Rehearing Ordered for 9th Circuit Ministerial Exception Case
Today the Ninth Circuit agreed to rehear Rosas v. The Corporation of the Catholic Archbishop of Seattle. In that case, the panel had held that the First Amendment's ministerial exception barred an action for overtime compensation brought under state law by a seminarian who did maintenance work at a Catholic church in Seattle. The panel held that because the plaintiff assisted with mass, it could not use the usual functional approach to determine whether he was a ministerial employee. By inquiring what the plaintiff's "primary duties" were, the court would entangle itself in the church-minister relationship that the exception seeks to protect. Additionally, the panel held that ministers or ministers-in-training might be ordered as part of their religious obligations to receive no pay for their work, whether the work was cleaning sinks or promoting the religion. Accordingly, the panel adopted a test similar to that used by the Fifth Circuit:
if a person (1) is employed by a religious institution, (2) was chosen for the position based “largely on religious criteria,” and (3) performs some religious duties and responsibilities, that person is a “minister” for purposes of the ministerial exception.
This case presents some of the difficult problems posed by the church/state relationship in the employment context. I'll be surprised if the full court reverses the results unless it is clear that the plaintiff here was clearly mostly a maintenance employee. Perhaps the full court simply wants to clarify the test. In any event, it will be interesting to see.
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