Compare Pl.'s Ex. 54 with Pl.'s Ex. 59; see also Pl.'s Ex. 81-a-i. Plaintiff offered expert testimony that her articles were of high scholarly quality. See Testimony of Father Hill, Tr., Vol. II (Nov. 4, 1993) at 4-37. Plaintiff also offered evidence that her teaching evaluations were comparable, if not better than her tenured colleagues. See, e.g., Pl.'s Exs. 58 & 60.
However, the comparison between the quantity of plaintiffs publications and those of Father Provost does not favor plaintiff. Compare Pl.'s Ex. 54 with Pl.'s Ex. 60. There is also evidence that Father Kennedy's classroom teaching was very highly regarded, and he offered a unique dual-expertise in civil and canon law, having received a J.D. from Harvard Law School. See Pl.'s Ex. 59; Test. of Fr. Green, Tr., Vol. II (Nov. 4, 1993) at 62-64. Moreover, Father Kennedy's award of tenure was given at an earlier time when the department's enrollment was predicted to increase because of recent revision of the code.
It is possible for a court to compare the quantity of published articles and, to some extent, the teaching evaluations. The issue decided by the Canon Law Department, the School of Religious Studies, the Faculty Senate and, ultimately, the Church authorities, necessarily involves the quality, and hence the substance, of her work. That substance is materially religious. In reviewing actions on most complex and technical subjects, a trier of fact chooses between competing expert opinions. There are such competing expert opinions as to the quality and, neccessarily, the religious substance of Sister McDonough's writings in this record. I find and conclude that it is neither reasonably possible nor legally permissible for a lay trier of fact to evaluate these competing opinions on religious subjects.
The First Amendment commands Congress to "make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. Section 702 of Title VII narrowly exempts "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." 42 U.S.C. § 2000e-2 (1988). The facts here require the conclusion that the Canon Law Department of the School of Religious Studies of the Catholic University of America is a "religious . . . educational institution."
However the exemption does not apply to this case as it is obvious that Sister McDonough was not denied tenure because of her Catholic faith. Accordingly, it becomes necessary to confront the constitutional issue of whether Title VII as applied by the EEOC and as it would be applied by federal courts, to the facts and relationships here would violate the First Amendment. See, e.g., International Association of Machinists v. Street, 367 U.S. 740, 749-50, 6 L. Ed. 2d 1141, 81 S. Ct. 1784 (1961). The facts and relationships here require the conclusion that application of Title VII to them would violate both the Free Exercise and the Establishment Clauses by entangling government in a primarily religious function and relationship.
The Supreme Court has held that the Free Exercise Clause provides religious institutions with the "power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116, 97 L. Ed. 120, 73 S. Ct. 143 (1952). It precludes civil interference "with ecclesiastical hierarchies, church administration, and appointment of clergy." King's Garden, Inc. v. Federal Communications Commission, 162 U.S. App. D.C. 100, 498 F.2d 51, 56 (D.C. Cir. 1974). Many hiring decisions within a religious institution determine "whose voice speaks for the church," and there is no "area of inquiry less suited to a temporal court for decision." Minker v. Baltimore Annual Conference of United Methodist Church, 282 U.S. App. D.C. 314, 894 F.2d 1354, 1356-57 (D.C. Cir. 1990). Courts have developed a "ministerial function" test to determine whether a discrimination claim brought by an employee of a church or religious institution can be reviewed by a civil court. An employee whose "'primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship'" must look elsewhere than to government agencies and courts for relief from race, sex, national origin, or age discrimination. Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985), cert. denied, 478 U.S. 1020, 92 L. Ed. 2d 739, 106 S. Ct. 3333 (1986) quoting Bagni, "Discrimination in the Name of the Lord: A Critical Evaluation of Discrimination by Religious Organizations." 79 Colum. Law Rev. 1514, 1545 (1979).
As stated, the facts here demonstrate that the Canon Law Department of the School of Religious Studies within the Catholic University of America is a religious institution. In a similar context, the Fifth Circuit held that a Baptist Seminary was a religious institution for purposes of a "ministerial functions" inquiry. EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 279 (5th Cir. 1961). The Southwestern Baptist court relied on the fact that the seminary was owned and operated by an association of Baptist churches which provides sixty percent of its financial support. Id. That court also found that the seminary's curriculum was sectarian, offering degrees in theology, religious education, and church music. Moreover, the seminary trained future ministers and thus required representation that students received "the call" to ministry. Id.
There is no material difference between the Canon Law Department at Catholic University and a department within a seminary. The Vatican retains the ultimate authority over the Canon Law Department as a unit of the School of Religious Studies. Catholic University is a Vatican-chartered University. The Canon Law Department has a special status within Catholic University as one of its three "ecclesiastical departments." The Vatican must grant final approval to all tenured faculty of the Canon law Department. Moreover, the Canon Law Department students are almost exclusively priests and members of religious orders -- all of whom received a call to serve their church. Like a seminary, the subject matter is predominantly ecclesiastical. The dissertation subjects of the Canon Law Department students dramatically evidence its religious focus. The Department's purpose, in substantial part, is to train future church leaders in the law that governs the Catholic Church and the religious life of its members. The sectarian origin and character of Canon Law are further evidenced by the consistent refusal of federal and state courts to resolve disputes rooted in Canon Law. As the Supreme Court said in a related context, the First Amendment requires that civil courts defer to ecclesiastical tribunals regarding questions of "canon or ecclesiastical law." Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 49 L. Ed. 2d 151, 96 S. Ct. 2372 (1976).
Sister McDonough's primary role in the Department of Canon Law was the functional equivalent of the task of a minister, as that set of duties is broadly defined in the case law. See, e.g., Rayburn, 772 F.2d at 1168-69. She instructed or "spread" religious doctrine as embodied in the Canon Law. Sister McDonough's functions as a professor of canon law included "teaching . . . church governance" and other essentially religious subject matter. See id. at 1169. She taught such courses as Religious Law and Consecrated Life. Her writings included articles on the rules governing members of religious orders and interpretations of the canons. See, supra p. 10. Just as the Constitution, statutes and decided cases are instruments for "governance" of the United States, so the Canon Law is an instrument for "governance" of the Catholic Church. Moreover, Canon Law provides guidance for the members of the Catholic Church. As such, Canon Law is church doctrine. For example the Canon Law has been cited by civil courts as expressing Church doctrine as to when human life begins. See, e.g., Roe v. Wade, 410 U.S. 113, 133-34 & n.22, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973) (citing Means I, at 411-12; Noonan 20-26; Quay 426-30; J. Noonan, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists 18-29 (1965).
The evidence requires the conclusion that the mission of the Canon Law Department, and Sister McDonough's role as a teacher, scholar, writer, and part-time consultant and as a committed member of the Dominican Order are separately and in concert, "important to the spiritual and pastoral mission of the church." See Rayburn, 772 F.2d at 1169. It may be that no one of these roles "so embodies the basic purpose of the religious institution that state scrutiny of the process for filling the position would raise constitutional problems; [but] when functions are combined, the burden of potential interference becomes extraordinary." See id. at 1168. Therefore, the Free Exercise Clause precludes review of this employment decision.
Plaintiff points to the fact that she is not ordained and argues that the Free Exercise Clause should only preclude review of Title VII in cases brought by ordained ministers or priests. However, the mere fact of ordination is not determinative. Rather, it is the role or function of the employee that is critical. Courts have made clear that the First Amendment preempts Title VII claims brought by non-ordained persons performing religious functions. See, e.g., EEOC v. Southwestern Baptist, 651 F.2d at 279, 283; Rayburn, 772 F.2d at 1165, 1169. The unsuccessful plaintiff in Southwestern Baptist was a theology professor in a Baptist seminary. The plaintiff in Rayburn was a woman "associate in pastoral care," who was not ordained and whose duties included teaching. See 772 F.2d at 1165.
The Establishment Clause prohibits the government from "involving itself too deeply in [a religious] institution's affairs," County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 591, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989); or having "'an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971) (quoting Walz v. Tax Commission, 397 U.S. 664, 668, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970). The determination of whether there is excessive entanglement turns on the character and purpose of the institution involved, the nature of the regulator's intrusion into church affairs, and the resulting relationship between the government and the religious authority. See Lemon, 403 U.S. at 615.
The evidence supporting the Free Exercise Clause analysis is also determinative of the Establishment Clause issue. In 1990, the Court of Appeals for this Circuit, in a related context, declared that "any inquiry into the Church's reasons for asserting that [plaintiff] was not suited for a particular pastorship would constitute an excessive entanglement in its affairs." See Minker, 894 F.2d at 1360.
Plaintiff here presents one of those cases "in which the relationship between employee and employer is so pervasively religious that it is impossible to engage in [a] . . . discrimination inquiry without serious risk of offending the Establishment Clause." DeMarco v. Holy Cross High School, 4 F.3d 166, 172 (2d Cir. 1993). A judicial evaluation of the "quality" of Sister McDonough's canon law scholarship would constitute and the prolonged monitoring and investigation by the EEOC has constituted excessive entanglement with religion in violation of the Establishment Clause.
During the trial in this federal court, the critical issue of pretext generated contradictory opinion testimony about the "scholarly" quality, as distinguished from quantity, of Sister McDonough's writing as well as her teaching of canon law and other related, and primarily religious, subjects. Fourteen out of eighteen witnesses called, sworn and vigorously cross-examined, were clergy or members of a religious order. The differences in opinion were among the clerical members of the faculty, as well as between them and outside evaluators. Plaintiff argues that the clergymen who reviewed and ruled on the pedagogical quality of Sister McDonough's teaching of courses, such as Consecrated Life, and the scholarly quality of her writing could, and did, evaluate her without making doctrinal religious judgments, and that a court could and should independently determine the bona fide of these evaluations. But no expert testimony can effectively filter out the religious elements from the secular ones sufficiently to avoid unwholesome and impermissible entanglement with religious concerns.
The general subject matter of her scholarship, canon law, not only governs the Church and its members, it is essentially ecclesiastical doctrine. Plaintiff's expertise lies in laws governing religious orders and, in particular, women religious. Plaintiff herself brought to the Department the perspective of a sister and member of a religious order. Some of her articles were written, at least in part, for members of religious orders who do not hold degrees in canon law. These articles were not deemed scholarly by some of the faculty who testified. See, e.g., Def.'s Ex. 50 at 9 (Decl. of Fr. McManus). This suggests a disagreement about the "scholarliness" and the importance of canon law articles written for practitioners, including women religious. Civil courts should not be entangled in such disputes.
Entanglement also has already resulted from the interaction between a government agency, the EEOC, and Catholic University's Department of Canon Law. In this action, the EEOC's investigation lasted more than two years and presumably was sufficiently thorough to have inquired deeply into the issues that were later tried here. The First Amendment precludes sustained involvement that "would result in an intolerably close relationship between church and state both on a substantive and procedural level." Rayburn, 772 F.2d at 1170. The Department of Canon Law is not immune from all temporal claims filed against it. However, "pervasive monitoring by public authorities . . . infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement." Aguilar v. Felton, 473 U.S. 402, 413, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985). If this plaintiff can involve the EEOC and the Court in the tenure decision at issue here, the prospect that others will follow portends impermissible "pervasive monitoring" of religious-freighted decisions of an essentially religious body. Id. As Judge Wilkinson noted, "there is the danger that [religious institutions], wary of EEOC or judicial review of their decisions, might make them with an eye to avoiding litigation or bureaucratic entanglement rather than upon the basis of their own . . . doctrinal assessments." Rayburn, 772 F.2d at 1171.
Thus, the facts compel the following conclusions. The Canon Law Department of the School of Religious Studies of Catholic University of America is a religious institution. Sister McDonough, as a professor in the Canon Law Department who taught the Church's governing law predominantly to priests and members of religious orders, was, and as a tenured professor would have been, one whose "primary duties consist of teaching, spreading the faith [and] church governance." Rayburn, 772 F.2d at 1169. A comparative review of the quality of plaintiff's scholarship and teaching, the monitoring of and investigation into the tenure decisions of the Canon Law Department by the EEOC and the courts, and the possible judicial involvement in a larger doctrinal intra-church controversy,
has impermissibly entangled the civil authorities in religious decision-making, and would do so in the future. This would impair a religious institution's choice of those who teach its doctrine and participate in church governance. Therefore, the religion clauses of the First Amendment preclude decision of this Title VII action on its merits.
Date: June 29, 1994
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
For the reasons stated in the accompanying Memorandum, it is this 29th day of June 1994, hereby
ORDERED: that this action should be, and is hereby, DISMISSED.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE