520 F.3d 198 (2nd Cir. 2008), 06-1041, Rweyemamu v. Cote

• Citation: 520 F.3d 198
• Party Name: Justinian RWEYEMAMU and Buguruka Orphans & Community Economic Development, Inc., Plaintiffs-Appellants, v. Michael COTE, Bishop of Diocese of Norwich, and Norwich Roman Catholic Diocesan Corporation, Defendants-Appellees.
• Case Date: March 21, 2008
• Court: United States Courts of Appeals, U.S. Court of Appeals — Second Circuit

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520 F.3d 198 (2nd Cir. 2008)

Justinian RWEYEMAMU and Buguruka Orphans & Community Economic Development, Inc., Plaintiffs-Appellants,

v.

Michael COTE, Bishop of Diocese of Norwich, and Norwich Roman Catholic Diocesan Corporation, Defendants-Appellees.

Docket No. 06-1041-cv.

United States Court of Appeals, Second Circuit.

March 21, 2008

Argued: Oct. 26, 2006.

Appeal from a judgment of the United States District Court for the District of Connecticut (Warren W. Eginton, Judge) concluding that the "ministerial exception" to Title VII barred plaintiff's suit and granting defendants' motion to dismiss for lack of jurisdiction. We hold that Title VII is unconstitutional as applied in this case and that the ministerial exception bars plaintiff's claim.

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Norman A. Pattis, Bethany, Conn., for Plaintiffs-Appellants.

Meredith G. Diette, Brown Jacobson P.C., Norwich, Conn., for Defendants-Appellees.

Michael L. Costello, Tobin & Dempf (Mark E. Chopko, Jeffrey Hunter Moon, United States Conference of Catholic Bishops, Wash., D.C., on the brief), Albany, N.Y., for Amici Curiae the Salvation Army National Corporation, the General Council on Finance and Administration of the United Methodist Church, the Church of Jesus Christ of Latter-Day Saints, the Lutheran Church-Missouri Synod, the International Church of the Foresquare Gospel, the General Conference of Seventh-Day Adventists, and the United States Conference of Catholic Bishops.

Before: CARDAMONE, WALKER, and STRAUB, Circuit Judges.

JOHN M. WALKER, JR., Circuit Judge

Alleging that the Roman Catholic Diocese of Norwich, through its Bishop, misapplied canon law in denying him a requested promotion and, ultimately, in terminating him, Father Justinian Rweyemamu,

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an African-American Catholic priest, claims racial discrimination in a Title VII suit against the Bishop and the Diocese. After the district court dismissed the suit pursuant to the "ministerial exception," Father Justinian appealed. The question we must decide is whether, under the First Amendment, Title VII is unconstitutional as applied in this case. In reaching this constitutional question, we distinguish this case from our decision in Hankins v. Lyght, 441 F.3d 96, 99 (2d Cir. 2006), which held that a federal statute, the Religious Freedom Restoration Act (RFRA) of 1993, 42 U.S.C. §§ 2000bb, 2000bb-1 to -4, governed the merits of an age discrimination action against a church.

BACKGROUND

As this case comes to us after the denial of a motion to dismiss, we accept the facts as they are alleged in the complaint. Almonte v. City of Long Beach, 478 F.3d 100, 104 (2d Cir. 2007). Father Justinian is an ordained priest of the Roman Catholic Church and the founder of Bugurka Orphans and Community Economic Development, Inc. (BOCED), a nonprofit organization. Prior to his dismissal, Father Justinian served for five years as parochial vicar at St. Bernard's Church in Rockville, Connecticut.

In April 2004, Father Justinian applied to be parish administrator of St. Bernard's, but he was not selected; the Diocese selected a white man instead. Thereafter, Father Justinian sought other promotions but was equally unsuccessful.

Concerned that the Diocese, through its Bishop, Michael Cote, had discriminated against him on the basis of his race, Father Justinian complained to church officials, arguing that Bishop Cote had failed to follow canon law in staffing the vacancies. He also filed claims with the Equal Employment Opportunities Commission (EEOC) and the Connecticut Commission on Human Rights and Opportunities (CHRO), the state analogue to the EEOC.

In December 2004, the CHRO dismissed Father Justinian's complaint for lack of jurisdiction based on a constitutionally grounded ministerial exception, a decision ultimately affirmed by the Connecticut Court of Appeals. See Rweyemamu v. Comm'n on Human Rights & Opportunities, 98 Conn.App. 646, 911 A.2d 319 (Conn. App. Ct. 2006), appeal denied, 281 Conn. 911, 916 A.2d 51 (Conn. 2007), cert. denied, --- U.S. ----, 128 S.Ct. 206, 169 L.Ed.2d 144 (2007). One month after the CHRO dismissed Father Justinian's complaint, Bishop Cote terminated Father Justinian's employment. Father Justinian again appealed to higher church authorities, but again without success. The Congregatio Pro Clericis in Rome found that there was "just cause" for Father Justinian's removal for several reasons, including "complaints regarding his homilies, complaints regarding his interaction with parish staff, . . . and the necessity of giving a unified and positive witness to the people of the parish." Prot. No. 20042458 (Sept. 6, 2005); see also id. (stating that "[t]estimony in this case indicates that Father [Justinian] Rweyemamu was not sufficiently devoted to ministry" because his work with "BOCED interfere[d] with [his] full-time parochial duties").

After the adverse ruling in Rome, Father Justinian filed suit in the United States District Court for the District of Connecticut, claiming that the Diocese and Bishop Cote had violated Title VII, 42 U.S.C. §§ 2000e to 2000e-17, and alleging a variety of state-law causes of action, including intentional infliction of emotional distress, tortious interference with business relations, and defamation, the latter causes of action arising from Bishop

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Cote's public statements concerning Father Justinian's involvement with BOCED. Upon defendants' motion, the district court (Warren W. Eginton, Judge) dismissed Father Justinian's complaint for lack of jurisdiction. The district court concluded that "[t]he Free Exercise Clause of the First Amendment, . . . [through] the 'ministerial exception,' preserves a religious institution's right to be free from governmental entanglement [with the] management of its internal affairs." Rweyemamu v. Cote, No. 3:05CV00969, 2006 WL 306654, at *3 (D. Conn. Feb. 8, 2006). Father Justinian now appeals that decision.

ANALYSIS

We review a district court's decision to grant a motion to dismiss de novo. Marsh v. Rosenbloom, 499 F.3d 165, 172 (2d Cir. 2007). On appeal, Father Justinian argues principally that a recent decision of this court, Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), "eliminated" the ministerial exception in employment cases governed by federal law, such as Title VII. Hankins, Father Justinian maintains, requires us to vacate the district court's judgment. We disagree.

I. Hankins v. Lyght and the Application of RFRA

We reach the question of the ministerial exception and decide this case on constitutional grounds notwithstanding our decision in Hankins, in which a panel of this court decided a similar case on statutory grounds, by holding that RFRA applied as a defense to the plaintiff's discrimination claim. Cf. Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them."). The statutory argument is not available in this case because defendants knowingly and expressly waived a RFRA defense.

In Hankins, a clergy member who was forced to retire at the age of seventy brought suit against his church and bishop under the Age Discrimination in Employment Act (ADEA) of 1967, 29 U.S.C. §§ 621-634. The district court dismissed the claim under Federal Rule of Civil Procedure 12(b)(6) "based on a 'ministerial exception' to the ADEA -- a rule adopted by several circuits that civil rights laws cannot govern church employment relationships with ministers without violating the free exercise clause because they substantially burden religious freedom." Hankins, 441 F.3d at 100. On appeal, however, the Hankins court's resolution of the dispute rested not on ministerial exception grounds but on its determination that RFRA "govern[ed] the merits of the principal issue raised by the parties." Id. at 99. The court vacated the dismissal of the complaint and remanded for the district court to decide whether applying the ADEA to the church's action would violate RFRA. See id.

RFRA was enacted as a response to the Supreme Court's watershed decision in Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In passing RFRA, Congress sought to effect "a substantive change in constitutional protections." City of Boerne v. Flores, 521 U.S. 507, 532, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Congress intended to restore the legal standard that was applied before Smith, see H.R. Rep. No. 103-88, at 6-7 (1993); see also S. Rep. No. 103-111, at 8 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1897-98, specifically the "compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder,

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406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), "42 U.S.C. § 2000bb(b)(1).

In Smith, the Court noted that its decisions "have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." 494 U.S. at 879, 110 S.Ct. 1595 (internal quotation marks omitted). In doing so, the Court distinguished Sherbert and Yoder, confining the former to its facts, see id. at 884-85, 110 S.Ct. 1595, while holding that the latter involved more than just the right to free exercise of religion, see id. at 881, 110 S.Ct. 1595 (discussing "the Free Exercise Clause in conjunction with other constitutional protections," such as the right of parents to direct the education of their children).

In response to Smith, RFRA provides, in pertinent part that:

Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to...