The Ninth Circuit represents itself well in its sole opinion from today. Since Judge Friedland's opinion (joined by Judge Watford) is much more persuasive than the dissent from Judge Fisher (sitting by designation from the Third Circuit).
The question is whether the defendants get to take advantage of the "ministerial exception" to justify their decision to fire a substitute teacher at a Catholic school who got canned when she told the school that she had breast cancer and would need to take time off to undergo chemotherapy. (The school's response was to tell her that she was fired because, inter alia, “it was not fair . . . to have two teachers for the
children during the school year.” Nice.)
Judge Friedland summarizes some of the basic facts about the fired teacher in a easily understood fashion that helps make clear why the ministerial exception doesn't apply:
"After graduating in 2009, Biel worked at
two tutoring companies and as a substitute teacher at several
public and private schools. St. James, a Roman Catholic
parish school within the Archdiocese of Los Angeles, hired
Biel in March 2013 as a long-term substitute teacher. At the
end of that school year, St. James’s principal hired Biel as
the school’s full-time fifth grade teacher. Biel is herself
Catholic, and St. James prefers to hire Catholic teachers, but
being Catholic is not a requirement for teaching positions at
St. James. Biel had no training in Catholic pedagogy at the
time she was hired. Her only such training was during her
tenure at St. James: a single half-day conference where
topics ranged from the incorporation of religious themes into
lesson plans to techniques for teaching art classes.
Biel taught the fifth graders at St. James all their
academic subjects. Among these was a standard religion
curriculum that she taught for about thirty minutes a day,
four days a week, using a workbook on the Catholic faith
prescribed by the school administration. Biel also joined her
students in twice-daily prayers but did not lead them; that
responsibility fell to student prayer leaders. She likewise
attended a school-wide monthly Mass where her sole
responsibility was to keep her class quiet and orderly."
The Third Circuit's Judge Fisher would hold that the ministerial exception would apply to these facts, but to me, the majority opinion wins the battle fairly clearly.
There might well be some judges on the Ninth Circuit who would see things the same way as Judge Fisher. But I don't think they're a majority. Or anywhere near.
