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June 29, 1994


The opinion of the court was delivered by: LOUIS F. OBERDORFER

 This is an employment discrimination action against Catholic University of America filed on October 30, 1992 by Sister Elizabeth McDonough and the Equal Employment Opportunity Commission ("the EEOC") alleging sex discrimination and retaliation. Before authorizing and filing the complaint, the EEOC, acting on a charge brought by Sister McDonough on January 18, 1990, conducted an investigation that ended on April 23, 1992. After protracted pretrial proceedings before Judge Charles Richey and myself to simplify the proof process and narrow the issues, the case went to trial without a jury on November 3, 1993, and concluded on November 10, 1993. *fn1" The parties called eighteen witnesses, fourteen of whom were priests or members of a religious order, and several were subjected to very vigorous cross-examination. Thereafter, the parties filed proposed findings and conclusions. Later, at my request, they filed briefs addressing the question whether the First Amendment precludes maintenance and adjudication of Sister McDonough's claims. I now conclude that the First Amendment precludes review of Sister McDonough's sex discrimination and retaliation claims under Title VII.



 Sister McDonough presently lives at the St. Bernadette Convent in Silver Spring, Maryland, and serves as Canonical Consultant and Tribunal Judge in the Office of Cardinal Hickey, Archbishop of Washington and Chancellor of Catholic University. She has had a life-long and devoted association with Catholic Church institutions. After high school she entered Albertus Magnus College, a small college for women operated by the Dominican Sisters of St. Mary of the Springs in New Haven, Connecticut. In her first year there she "experienced what is referred to in Catholic circles as the call to a religious vocation and wanted 'to enter the convent,' that is, to become a member of the community of Sisters who owned and operated Albertus Magnus College." Affidavit of Sister Elizabeth McDonough, O.P., Pl.'s Ex. 88 at P 4. According to Sister McDonough, "the Dominican Order was founded . . . in the . . . 13th century for the purpose of combatting then prevalent heresies by preaching the truths of the Catholic faith. Thus, it is known officially as the 'Order of Preachers' and its members use the initials 'O.P.' after their names." Id. at P 8. Dominicans are divided into three major segments or orders. Priests are the first order. The second is comprised of cloistered contemplative nuns in monasteries. The third order, to which Sister McDonough belongs, "consists of congregations of sisters engaged in various apostolic2 works." Id. (emphasis added). In 1963, Sister McDonough entered the Congregation of St. Mary of the Springs, a religious community with headquarters in Columbus, Ohio. In 1969, she took an oath to lead a consecrated life, "professing vows of poverty, chastity and obedience." Id. at P 10. As a member she "is required to live according to the approved internal norms of the group and is subject to the direct authority of its legitimate superiors in regard to internal discipline and external works." Id. at P 5 (emphasis added). According to Sister McDonough, membership in a religious *fn3" community is a commitment "to a life of prayer and/or apostolic service along with other similarly motivated people . . . [who] are then constituted as an identifiable subgroup that usually lives, prays and works in accord with a specific rule or life and organizational plan that has been officially recognized and sanctioned by competent ecclesiastical authority." Id.

 Prior to taking her vows, Sister McDonough completed "a program of initial formation": teaching grade school for one year each in Hartford, Connecticut and Columbus, Ohio, presumably in Catholic schools. Id. at P 10. In 1967, she earned a master's degree with a major in mathematics and a minor in theology from Ohio Dominican College. Immediately thereafter, she was assigned by her community's "major" or "ecclesiastical" superior to teach math and science at a high school owned and operated by her community in New Haven, Connecticut and to live with twenty-five other "Sisters at St. Mary's Convent in New Haven." Id. at P 11. From 1970 through 1978, she taught math and religion at Northwest Catholic High School in West Hartford, Connecticut and then at Fisher Catholic High School in Lancaster, Ohio. See id.

 In 1976, Sister McDonough's major superior asked if she would consider pursuing a degree in canon law, *fn4" a discipline recently opened to women, "an area of study akin to Dominican tradition," and one for which Sister McDonough might have a certain aptitude. Id. at P 12. In 1978, after obtaining a full tuition scholarship, Sister McDonough began "a semester of theology courses in the Theology Department of the School of Religious Studies at CUA." Id. at P 16. In January 1979, she transferred to the Canon Law Department and entered a program leading to a "Master of Church Administration degree." Id. at 18.

 During her student years, among other activities, Sister McDonough participated twice as a guest lecturer "on the . . . law for religious in the class on Introduction to Canon Law . . . for the seminarians in the theology department." Id. at P 33. She also "prepared a working translation and brief commentary for the canons on consecrated life as contained in the 1980 Schema of the Code of Canon Law . . . [which] had been sent by Rome to ecclesiastical faculties of canon law (and various other persons and entities) throughout the world for study and comment." Id. at P 34. Sister McDonough prepared a sixty-page spiral booklet, apparently on this subject, which "was widely used by students, canonists and religious for the next two or three years." Id. In addition, Spirituality Today, a journal then published by the Chicago Province of Dominican Fathers, published her article on "the relationship between spirituality and law in light of the soon to be promulgated revised Code." *fn5" Id. at P 35. In February 1980, Sister McDonough was officially granted her JCB degree. See id. at P 26. In the fall of that year her religious community approved her pursuit of a doctorate (JCD). See id. at P 30.

 While preparing to defend her doctoral thesis, Sister McDonough taught canon law at the Pontifical College Josephinum in Columbus, Ohio, along with part time tribunal (apparently adjudicative) work at the Diocese of Columbus. Id. at P 36. In this capacity she received special permission from the Vatican "to function as Defender of the Bond in marriage cases submitted to the Tribunal." Id. at P 37. Also during this period she was called upon by the Vicar for Religious in the Archdiocese of New York to participate in "collaborative consultation concerning matters of major import related to constitutional issues for the religious communities in that archdiocese." Id. at P 38. During her time in Columbus, she began "to be called upon as a consultant for numerous communities of religious women." Id. at P 39.

 In May 1982, Catholic University awarded Sister Mcdonough a JCD, the fifth such degree to be awarded to a woman by Catholic University, which had awarded 504 such degrees during the preceding 100 years. See id. at P 36.

 According to Sister McDonough:

The Canon Law ("CL") Department at The Catholic University of American ("CUA"), in addition to being a department within the School of Religious Studies ("SRS"), is also an ecclesiastical faculty of canon law established by the Holy See. As such, it is the only educational entity in the United States empowered by the Vatican to confer degrees which are recognized by the Catholic Church as ecclesiastical degrees in church law. The degrees granted by the ecclesiastical faculty of canon law at CUA are the Licentiate in Canon Law (JCL) and the Doctorate in Canon Law (JCD).

 Id. at P 13 (emphasis added). The Department of Canon Law and the Department of Theology of the School of Religious Studies ("SRS"), and the School of Philosophy are the only purely ecclesiastical units at Catholic University. They are governed by Special Statutes for Pontifical Schools, one of which states that "these schools are called Pontifical by virtue of accreditation by the Holy See; consequently those courses, programs, and degrees having canonical effects shall be conducted according to norms and regulations promulgated by the Holy See." Special Statute II (Def. Ex. 22).

 Recent topics of dissertations for advanced degrees in Canon Law awarded by the University include:

"The Ministry of the Priest in the Exercise of the Munus Sanctificandi As It Pertains to the Eucharist" (1992);
"Episcopal Power of Governance in the Diocesan Church: From the 1917 Code of Canon Law to the Present" (1991);
"Obedience to the Bishop by the Diocesan Priest in the 1983 Code of Canon Law" (1990); and
"Faithful Fulfillment of the Pious Will: A Fundamental Principle of Church Law as Found in the 1983 Code of Canon Law" (1988).

 Programs from the Catholic University Annual Commencements (attachment to Def.'s Jan. 14, 1994 Submission).

 Between 1983 and 1993, the Canon Law Department awarded thirty-seven JCD degrees to twenty-six ordained persons, eight non-ordained members of religious orders, two Catholic lay persons and one lay person who is a former Catholic. JCL degrees were awarded to 279 persons, 235 of whom were ordained, thirty-four of whom were non-ordained members of religious orders, and ten of whom were Catholic laypersons. *fn6" Def.'s Jan 14, 1994 Submission. Thus, over 95% of the students enrolled in the Canon Law Department have been ordained or members of a religious order. Before 1960, degrees of JCB, JCL and JCD were awarded only to males because, as a matter of practice, the study of canon law was limited to seminarians, and only males were eligible for "priestly ordination" and "officially deputed to exercise ordained ministry." Pl.'s Ex. 88 at P 14. In the early 1960s, "some ecclesiastical faculties in Rome [began] to admit as students some religious brothers who were not seminarians, and some religious sisters, who -- because of their sex -- could not qualify to be seminarians." Id. at P 15. In 1969, the first woman, a sister, earned a JCL degree from Catholic University. In 1975 two other sisters became the first women to win JCD degrees there.


 In November 1982, the Canon Law Department faculty at Catholic University invited Sister McDonough to apply for a teaching position there. She would be the first woman in the department. She consulted several people "about what might be [the] possibilities and pitfalls." Id. at P 41. One man whom she consulted "raised questions about the faculty's readiness to add a woman to their company and how [she] would fit in." Id. With his "warnings in mind," she applied. Id. at P 41. In May 1983, she was appointed "the first woman canon law faculty member with a tenure track appointment," probably the first "woman in any comparable position at any ecclesiastical faculty of canon law in the world as of 1983." Id. at P 43 (emphasis in original).

 By the time her first academic year was to begin at Catholic University, the Pontifical College Josephinum in Columbus had found no replacement for her. After consulting her major superior but, apparently, without advising her prospective employer (the Catholic University Canon Law Department) she "made arrangements to fly to Columbus on five weekends from September through mid-November to present classes on ...

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