Van Osdol v. Vogt

Citation908 P.2d 1122
Decision Date16 January 1996
Docket NumberNo. 94SC646,94SC646
Parties69 Fair Empl.Prac.Cas. (BNA) 1480, 68 Empl. Prac. Dec. P 44,104, 64 USLW 2470 Holley E. VAN OSDOL, Petitioner, v. Hugh Frederick VOGT, individually and in his capacity as an agent of the Mile Hi Church of Religious Science; the Mile Hi Church of Religious Science, a Colorado non-profit corporation; and the United Churches of Religious Science, a California corporation, Respondents.
CourtColorado Supreme Court

Feiger, Collison & King, P.C., Lynn D. Feiger, Madeline A. Collison, Darold W. Killmer, Theresa L. Corrada, Denver, for Petitioner Holley E. Van Osdol.

Quigley & Bruce, Neil Quigley, William C. Ritter, Denver, for Mile Hi Church of Religious Science.

White and Steele, P.C., Sandra Spencer Coleman, Denver, for United Churches of Religious Science

Law Firm of Leonard M. Chesler, P.C., Leonard M. Chesler, John S. Tatum, Denver, for Hugh Frederick Vogt.

Justice KOURLIS delivered the Opinion of the Court.

Petitioner Holley E. Van Osdol challenges the dismissal of her retaliation claim under Title VII, 42 U.S.C.2000e-3 (1988 & Supp. V 1993), and certain of her intentional tort claims against the respondents Hugh Frederick Vogt, Mile Hi Church of Religious Science, and the United Churches of Religious Science. The trial court found that the claims were precluded by the First Amendment to the United States Constitution and dismissed them under C.R.C.P. 12(b)(1) and (5). The court of appeals upheld the dismissal of the claims. We affirm and remand with directions.


Hugh Frederick Vogt was a past president of the United Churches of Religious Science (UCRS) and a past member of the governing body of UCRS, known as the Ecclesiastical Committee. He was a senior minister at the Mile Hi Church of Religious Science (Mile Hi), and had a television ministry that aired throughout Colorado.

From 1968 to 1975, when Van Osdol was a child, she lived with her mother and Vogt. At that time, Vogt was married to her mother and was her stepfather. Van Osdol alleges that for years during her childhood, Vogt subjected her to sexual abuse. Van Osdol claimed the sexual abuse ended in 1975 when Van Osdol, then seventeen, moved out of her mother's home.

Some sixteen years later, in 1991, Van Osdol was serving as a minister for UCRS in Washington state. She moved to Denver and in early 1992 submitted a proposal to the Ecclesiastical Committee to open a new Church of Religious Science in southern metropolitan Denver. In May of 1992, the Ecclesiastical Committee informed Van Osdol that they had approved her plans to open the new church and granted her a novitiate minister license in Colorado.

In June of 1992, Van Osdol informed the Ecclesiastical Committee that Vogt had sexually abused her as a child, and that she believed he had sexually harassed a parishioner and several UCRS employees. She requested the Committee's assistance in convincing Vogt that he should pay for her therapeutic treatment, and threatened to publicize her allegations if Vogt did not agree to pay for her therapy.

Vogt responded to Van Osdol's charges with a letter to UCRS' President and Chief Operating Officer denying the charges of sexual abuse and asking the church to begin an investigation of the matter.

In August of 1992, the Ecclesiastical Committee voted to revoke Van Osdol's novitiate minister license and rescind the decision to allow her to open a new church. They notified her of that decision by letter dated September 15, 1992.

Van Osdol brought this action against Vogt, Mile Hi, and UCRS in 1993 1 alleging the following thirteen claims: (1) illegal retaliation by UCRS in violation of 42 U.S.C. § 2000e-3 (1988 & Supp. V. 1993) (Title VII); (2) breach of fiduciary duty by UCRS and Mile Hi; (3) interference with prospective economic advantage by UCRS, Mile Hi, and Vogt; (4) intentional interference with contract by Vogt and Mile Hi; (5) breach of contract by UCRS; (6) promissory estoppel against UCRS; (7) battery against Vogt; (8) assault against Vogt; (9) outrageous conduct against Vogt; (10) breach of fiduciary duty by a person in a position of trust against Vogt; (11) negligent hiring against Mile Hi and UCRS; (12) negligent supervision against Mile Hi and UCRS; and (13) negligent retention of Vogt by Mile Hi and UCRS. The relief she requested included compensatory and punitive damages, back pay, and future pay in lieu of reinstatement. 2

The trial court denied motions to dismiss on the following six claims: breach of contract by UCRS, promissory estoppel against UCRS, battery against Vogt, assault against Vogt, outrageous conduct against Vogt, and breach of fiduciary duty by a person in a position of trust against Vogt. However, the court granted dismissal on the remaining seven claims, finding them barred by the First Amendment. The trial court granted C.R.C.P. 54(b) certification as to all claims here at issue. Van Osdol appealed the dismissal to the court of appeals, which affirmed the decision of the trial court. Van Osdol v. Vogt, 892 P.2d 402 (Colo.App.1994). On certiorari review before this court, Van Osdol challenges only the dismissal of claims one through four.


We granted certiorari on the following two issues: (1) whether the First Amendment precludes a court from exercising jurisdiction over a minister's tort and Title VII claims against her church and another minister, and (2) whether the "fraud" and "collusion" exceptions to the First Amendment defense are viable claims when a minister is discharged in retaliation for reporting the misconduct of another minister. We hold that the First Amendment precludes our jurisdiction over Van Osdol's Title VII and intentional tort claims and that no fraud and collusion exception to the First Amendment bar exists under these circumstances.


This case involves a conflict between Title VII and the First Amendment. Title VII, 42 U.S.C. §§ 2000e to 2000e-17 (1988 & Supp. V 1993), is the centerpiece of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees or job applicants with respect to hiring and discharge decisions, or the compensation, terms, conditions, and privileges of employment, based upon the employee/applicant's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Under Title VII, sexual harassment is considered sexual discrimination. Therefore, 42 U.S.C. § 2000e-3 prohibits an employer from retaliating against an employee for reporting or opposing employment practices made illegal under Title VII, including sexual harassment.

Section 702, 42 U.S.C. § 2000e-1, exempts religious corporations, associations, educational institutions, or societies from the requirements of Title VII in the limited area of religious discrimination 3 such that a religious organization is permitted to make hiring and discharge decisions on the basis of an employee/applicant's religious affiliation. 4

Van Osdol claims that UCRS violated Title VII when it revoked her license and rescinded the decision to allow her to open a new Church of Religious Science. She claims that this constituted illegal retaliation for her report that Vogt had committed sexual harassment. Absent some countervailing bar, such retaliation by an employer would, if proven, be contrary to the provisions of Title VII.


The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." 5 These words are the source of the Constitution's two branches of religious protection: the Free Exercise Clause and the Establishment Clause. The First Amendment's guarantee of religious protection is made applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

Each of Van Osdol's four claims on appeal arises directly out of UCRS' decision to revoke her novitiate minister license and to rescind the decision to allow her to open a new church. 6 Thus, each claim arises out of UCRS' choice of whether or not to employ Van Osdol as a minister of its church.

These facts therefore set this case apart from the vast majority of church employment cases involving non-minister hiring and discharge decisions, as well as from cases involving a minister's charges against a church that deal with employment matters separable from doctrinal issues. We conclude that the First Amendment does bar application of Title VII to the facts of this case. The choice of a minister is a unique distillation of a belief system. Regulating that choice comes perilously close to regulating belief.


Courts have traditionally analyzed the scope of the First Amendment by reference either to the Free Exercise Clause or to the Establishment Clause. Even so, the line between the two clauses can be indistinct and hard to define. Whether the courts should intrude into ecclesiastical decisions regarding choice of a minister is an issue that bridges both religion clauses of the First Amendment, because it potentially involves governmental intrusion into both ecclesiastical and individual decision-making. Hence, both clauses of the First Amendment are implicated and the parallel lines of cases must be examined. However, whether we look to Free Exercise Clause analysis or to Establishment Clause analysis, we find that a church's choice of a minister is uniquely protected.


Traditional free exercise analysis employs a balancing test to determine when a person or religious institution should be granted an exemption from a law that would otherwise require that person or institution to violate their religious beliefs. Under this test, governmental actions that substantially burden a religious practice must be justified by a compelling state interest. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). A court is, therefore, required to weigh the government's interest in...

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