Monica L. McDowell Elvig v. Calvin Presbyterian Church Will Ackles

375 F.3d 951 Monica L. McDowell ELVIG, Plaintiff-Appellant, v. CALVIN PRESBYTERIAN CHURCH; Will Ackles, Defendants-Appellees. No. 02-35805. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 8, 2003. Filed July 23, 2004. Judith A. Lonnquist, Seattle, WA, for the plaintiff-appellant. Elizabeth K. Reeve, Reeve Shima, P.C., Seattle, WA, for the defendants-appellees. Gwynne Skinner and Kathy Barnard, Seattle, WA, for amicus curiae Northwest Women's Law Center. Paul Berks, Robert L. Byer, and Thomas R. Johnson, Kirkpatrick & Lockhart, LLP, Pittsburgh, PA, for amicus curiae Presbyterian Church (U.S.A.) Synod of Alaska Northwest. Appeal from the United States District Court for the Western District of Washington; Barbara Jacobs Rothstein, District Judge, Presiding. D.C. No. CV-02-00626-BJR. Before TROTT, FISHER and GOULD, Circuit Judges. GOULD, Concurence, TROTT, Dissent. INTRODUCTION FISHER, Circuit Judge. 1 Plaintiff Monica L. McDowell Elvig ("Elvig"), an ordained Presbyterian minister, brought claims under Title VII against her employer Calvin Presbyterian Church, North Puget Sound Presbytery (together the "Church") and her supervisor Pastor Will Ackles…

Dissenting:

After a three-judge panel decided Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999), we took a vote on whether to rehear the ease en banc. The vote failed. Judge Wardlaw, joined by Judges Kozinski, O’Scannlain, and Kleinfeld, then crafted a persuasive dissent from our standard order denying rehearing, a disquisition which has turned out to be prescient. With oracular foresight, she said,

Bollard v. California Province of the Society of Jesus, 211 F.3d 1331, 1332 (9th Cir.2000) (citation omitted).

And here, we are with the predicted serious consequences: the Presbyterian Church, as a hierarchical religious institution, will now be compelled in federal court affirmatively to defend as reasonable its formal internal processing and handling of an ordained minister’s sexual harassment and retaliation claims against another ordained minister and their Church, and be potentially liable for money damages. A secular federal court jury has been given the authority to invade, to evaluate, and to overrule the Presbyterian Church’s final judgment to which the Church says the plaintiff was bound to accept by her religious vows. My able colleagues…

GOULD, Concurence, TROTT, Dissent.

INTRODUCTION

Plaintiff Monica L. McDowell Elvig (“Elvig”), an ordained Presbyterian minister, brought claims under Title VII against her employer Calvin Presbyterian Church, North Puget Sound Presbytery (together the “Church”) and her supervisor Pastor Will Aekles (collectively “Defendants”), alleging that she was sexually harassed and retaliated against by the Defendants. The district court dismissed Elvig’s complaint, concluding that her Title VII claims fell within the scope of the so-called “ministerial exception” to Title VII. This exception saves Title VII from unconstitutionality under the First Amendment by requiring that Title VII suits be dismissed when they would impermissibly encroach upon the free exercise rights of churches or excessively entangle government and religion.

Applying our decision in Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999), we reverse and remand. Under the ministerial exception, a church’s decisions about whom to employ as a minister are protected by the First Amendment. Thus to the extent Elvig’s sexual harassment and retaliation claims implicate the Church’s ministerial…

concurring:

I concur in Judge Fisher’s opinion, believing that it follows with logic and persuasive reasoning in light of our circuit’s precedent in Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999). Although I havé misgivings whether Bollard was correctly decided, it binds us unless and until altered by an en banc panel or the United States Supreme Court.