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Court of Appeal, Sixth District, California.

O'CONNOR HOSPITAL, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent. Paul E. CLEU, Real Party in Interest.

No. H003221.

Decided: October 14, 1987

No appearance for respondent. Phillip J. Griego, San Jose, for real party in interest. Gregory W. McClune, Stephen W. Parrish, Weissburg & Aronson, Inc., San Francisco, for petitioner. Melvin B. Sabey, Kris Ordelheide, Mark L. Sabey, Saunders, Snyder, Ross & Dickson, P.C., Denver, Colo., Warren L. Johns, Walter E. Carson, Richard W. Johns, Johns & Carson, Washington, D.C., for amicus curiae on behalf of petitioner.

This wrongful termination lawsuit is brought by real party in interest, Father Paul E. Cleu, a Roman Catholic priest discharged from his former position as Associate Chaplain of petitioner O'Connor Hospital (Hospital), a hospital sponsored and operated by the Daughters of Charity of Saint Vincent de Paul (Daughters), a religious order of the Roman Catholic Church (Church).   By petition for writ of mandate, Code of Civil Procedure section 437c, subdivision (1), Hospital seeks to compel summary judgment in its favor on the ground of its immunity from suit under the First and Fourteenth Amendments for its allegedly religiously motivated decision to discharge Father Cleu.   The trial court denied summary judgment because it perceived these justiciable factual issues:  (1) whether the person discharging Father Cleu, Father Durkin, was his religious superior, related to the issue whether Father Cleu was discharged by decision of a religious tribunal or hierarchy;  (2) whether Hospital is an extension of the Church or is a private employer subject to secular and civil law control over its employment termination decisions.

The trial court granted partial summary adjudication as follows:  (1) Hospital is sponsored and operated by a religious order, identified above;  (2) Father Cleu was fulfilling a religious, ecclesiastical role in serving as Associate Chaplain of Hospital.


Father Cleu filed this wrongful termination lawsuit against Hospital on August 14, 1986, alleging Hospital hired him as Associate Chaplain by oral agreement on March 14, 1983.   The agreement incorporated written policies and procedures which promised him continued employment during satisfactory performance, and advance notice of deficiencies and opportunity to correct them before terminating his employment.   He was given a written brochure describing these policies.   In breach of this agreement and of the implied covenant of good faith and fair dealing, he was fired without advance warning, despite satisfactory performance of his duties, in violation of the policies and procedures handbook and of the agreement.

Father Cleu was told to look elsewhere for employment in August 1985.   His termination was made official on October 31, 1985, but his salary was continued to July 31, 1986.

Hospital answered asserting among other things affirmative defenses based on the First and Fourteenth Amendments to the U.S. Constitution, saying the decision to fire Father Cleu was faith based, an ecclesiastical decision immune from judicial review.   On that basis Hospital sought summary judgment.

Hospital has not claimed the reasons for discharging Father Cleu stem from doctrinal differences of opinion.   In his declaration, Father Patrick J. Durkin, the Hospital Chaplain and Father Cleu's immediate supervisor, said the decision to terminate Father Cleu was jointly arrived at by Father Durkin and Sister Eileen Kenny, Chairperson of the Board of Hospital, because they decided Father Cleu was rigid and confrontational and was causing too much tension with the Sisters in the operation of Hospital.   Father Durkin also said he discussed these problems repeatedly with Father Cleu but the latter would never acknowledge any fault.   The facts of each such dispute were, according to Father Durkin, sometimes ecclesiastical and sometimes not.   He did not further elaborate.

Regarding the relevant chain of authority, Father Durkin said all members of the Hospital staff serve at the pleasure of their respective religious orders or dioceses.   The pastoral care staff consists entirely of Catholic religious personnel, other than a secretary.   Father Cleu's position of Associate Chaplain could only be held by a Roman Catholic priest.   The consent of the local ordinary, the Bishop of the Diocese of San Jose, was necessary before Father Cleu could take the position, by virtue of the Diocese's general jurisdiction over the Hospital located within its bounds;  but also Father Cleu needed the consent of his Bishop, the Bishop of Oakland, who incardinated him.   Father Cleu's duties included both secular functions, such as giving comfort and counseling, and religious functions, such as administering the sacrament.

Father Durkin admitted he never followed with Father Cleu the counselling and warning procedures prescribed in the employee handbook distributed by Hospital.

In her declaration, Sister Kenny described the principles applicable to the operation of Hospital by the religious order of the Daughters.   She said pastoral care played a central religious role in the Daughters' mission in operating the Hospital.   She said a Catholic health-care facility such as Hospital is an ecclesiastical community participating in the mission of the Church through the ministry of healing.

Further, she said morale problems developed at Hospital after Father Cleu was hired.   The Sisters complained he was not available when on call, was reluctant to come when called, refused to administer the Sacrament of the Sick to patients he did not consider good Catholics, was short tempered and antagonistic, and exhibited an unsuitable attitude for a chaplain.

The declaration of Reverend John Folmer, a canonical law expert and staff attorney to the Archdiocese of San Francisco, said Father Cleu is a diocesan priest incardinated by the Bishop of Oakland, but he was required to and did obtain his faculties or powers to perform the religious aspects of his position at Hospital from the Bishop of San Jose who has jurisdiction over Hospital for this purpose.   Also he said Father Cleu reported to, was hired by, and functioned under direct supervision of, Father Durkin.   Further, Reverend Folmer said the chaplaincy of a Catholic hospital is a quasi-parish, or ecclesiastical community, under jurisdiction of the local ordinary or bishop.   In Reverend Folmer's opinion, a chaplain has no vested right to his office and may be removed with no legal cause whatsoever.   Further, the duties of a chaplain are identical to those of a pastor or priest with respect to the latter's parish, except that the chaplain's faculties are limited to those necessary in a hospital setting.

The job description for the position of chaplain at Hospital said the position requires a Catholic priest with the continuing endorsement of the Ordinary of the Diocese.   His primary responsibility is “serving the spiritual, emotional and attitudinal well being of patients, families and staff of the hospital.”

In his deposition, Father Cleu said the reasons Father Durkin gave him for termination were that he does not agree with the Daughters' philosophy and he does not get along well with the nursing staff or the Sisters.   Father Cleu denied these reasons were true.   Although unclear, he apparently believed he was terminated because of an irrational dislike of him by Sister Kenny.

Father Cleu pointed to favorable reviews of his performance in February of 1984 and March of 1985 and to a salary increase given him in March 1984.   He said he gave up a favorable job opportunity in southern California to remain in this position and was compensated by the raise in salary.   Neither Father Durkin nor anyone else gave him any warning he would be discharged until suddenly in August of 1985 he was told to look elsewhere.

Also he said he spent the vast majority of his time in the position performing nonreligious tasks, such as administrative work or patient counselling.

Father Cleu said it is a tenet of the Church that a priest in carrying out his duties carries out God's work.   He believed he was doing that at Hospital.

In the opinion of Father Maurice Francis Shea, a diocesan priest and presiding judicial officer of the Tribunal of the Diocese of San Jose, a hospital is not and cannot be a quasiparish.   Further, the Bishop plays a limited and largely ceremonial role in approving the hiring of a chaplain.   He also said no ecclesiastical remedy was realistically available to Father Cleu here other than this civil lawsuit, which suit is permissible under canon law.

The trial court, denying Hospital's motion for summary judgment, said it could not resolve as a matter of law whether Father Cleu was terminated by the act of a religious superior or merely a secular employer.   It is unclear whether Father Durkin, who terminated him, is his religious superior, and also in dispute whether the decision of Hospital is equivalent to a decision of the Catholic hierarchy.   Also the court said there is evidence Father Cleu was told certain personnel policies and procedures applied to his position.   Finally, there is “no evidence that plaintiff was terminated because of his religious beliefs.”

However, the trial court granted summary adjudication in favor of Hospital on these issues:  (1) “O'Connor Hospital is an institution sponsored and operated by the Daughters of Charity of Saint Vincent de Paul, a religious order of the Roman Catholic Church”;  (2) “Father Cleu was fulfilling a religious, ecclesiastical role in serving as an Associate Chaplain at O'Connor Hospital.”


For purposes of summary judgment, Father Cleu has here stated the elements of the California tort of wrongful discharge, based on allegations Hospital has violated implied and express promises not to terminate without good cause nor without first following certain warning procedures which admittedly were not used here.   The issue presented is whether permitting Father Cleu to sue for damages for wrongful discharge imposes a constitutionally impermissible burden on Hospital's right of free exercise of religious belief protected by the First and Fourteenth Amendments.

 Although the particular factual pattern presented here is somewhat novel, the basic issue of reconciling freedom of religious action with the obligations imposed by secular law is not new.   As has been said many times, although freedom of belief under the First Amendment is absolute, freedom of action cannot be;  “Conduct remains subject to regulation for the protection of society.”  (Cantwell v. Connecticut (1940) 310 U.S. 296, 304, 60 S.Ct. 900, 903, 84 L.Ed. 1213, fn. omitted.)   Among the religiously motivated behaviors which have been held legitimately forbidden on account of compelling governmental interest are the Mormon practice of polygamy (Reynolds v. United States (1878) 98 U.S. (8 Otto) 145, 25 L.Ed. 244);  sale by children of religious literature (Prince v. Massachusetts (1944) 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645);  itinerant solicitation at a fairground (Heffron v. Int'l Soc. for Krishna Consc. (1981) 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298);  required health measures such as vaccinations, blood transfusions, or X-rays, even where objected to on religious grounds (Jacobson v. Massachusetts (1905) 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643;  Jehovah's Witnesses in State of Wash. v. King County. Hosp. (W.D. Wash.1967) 278 F.Supp. 488, affd. (1968) 390 U.S. 598, 88 S.Ct. 1260, 20 L.Ed.2d 158;  State v. Armstrong (1952) 39 Wash.2d 860, 239 P.2d 545).   On the other hand, even criminal behaviors have occasionally been protected on First Amendment grounds, as in the California decision finding use of peyote by the Native American Church to be a protected activity despite its illegality.  (People v. Woody (1964) 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813.) 1  That decision weighed the competing values represented on the one side by the central importance of use of peyote to the religion involved, as against the state's interest in regulating the use of the substance, and found the balance tipped in favor of constitutional protection.   In People v. Woody, and in all such cases considering governmental action which burdens religious freedom, courts compare the severity of the burden on free exercise of religion with the importance of the governmental interest served by the regulation in determining whether the regulation may be imposed.   In general, once the central importance to a religious belief is established, it takes a compelling governmental interest to justify restriction, and it must also be shown the regulation is the least burdensome imposition possible to achieve the governmental purpose.  (See United States v. Lee (1982) 455 U.S. 252, 257, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127;  People v. Woody, supra, 61 Cal.2d at p. 727, 40 Cal.Rptr. 69, 394 P.2d 813.)

These principles are also relevant when the issue is not regulation by statute or administrative code, but imposition of liability to respond in damages in a civil lawsuit.   Such liability is also a burden which may or may not be permitted in a given case.   Again, a weighing process is appropriate:  the importance of the interests vindicated by the lawsuit against the centrality to religious belief of the allegedly tortious conduct.

At one end of the spectrum of such lawsuits we find the case where a religious organization is asked to respond in damages to an outsider based on secular dealings.   In such cases the legitimacy of the secular liability is taken for granted, and no decision appears to question the appropriateness of requiring a religious body to respond in damages under such circumstances.   (E.G., Saul v. Roman Catholic Church of Arch. of Santa Fe (1965) 75 N.M. 160, 402 P.2d 48 [liability of archdiocese to respond in damages in nuisance claim against Church.] )   At the other end of the spectrum, where courts have uniformly declined involvement, are disputes regarding “who will preach from the pulpit of a church” (Simpson v. Wells Lamont Corp. (5th Cir.1974) 494 F.2d 490, 492), that is, controversies revolving about the hiring or discharge of a minister or priest.   In such cases, the question who shall fill the pastoral position is deemed so close to the heart of the religious purpose of the church or congregation as to be entirely an ecclesiastical matter protected from any secular judicial intrusion by the First Amendment.  (See, e.g., Hutchison v. Thomas (6th Cir. 1986) 789 F.2d 392;  Rayburn v. General Conf. of Seventh-Day Adventists (4th Cir. 1985) 772 F.2d 1164;  Kaufmann v. Sheehan (8th Cir.1983) 707 F.2d 355.) 2  The decision in Rayburn v. General Conference of Seventh-Day Adventists, supra, points out a pastor functions as a liaison between the Church and the congregation, and is in a position to influence them, garbed with the authority and prestige of the institution.   He carries the Church imprimatur as a worthy spiritual leader and an example to the members.   Accordingly government standards have no place in selecting spiritual leaders.  (Rayburn, supra, 772 F.2d 1164, 1168–1169.)

Our case falls somewhere between the extremes.   Father Cleu is indeed clergy, an ordained priest;  but his position is not identical to that of a priest or minister empowered to preside over a congregation or parish.   Because he is not an outsider, but one who belongs to the Church and has voluntarily submitted himself to its discipline, he has to some extent given up his right to invoke the aid of a secular tribunal in deciding controversies between himself and the Church.  (See generally Laycock, Towards a General Theory of the Religion Clauses:  The Case of Church Labor Relations and the Right to Church Autonomy (1981) 81 Colum.L.Rev. 1373, 1406 [hereafter Laycock].)   However, his employer is not the Church itself but an organization sponsored by and affiliated with the Church, namely, a religious order.   Further, he contends the decision to discharge him does not rest on doctrinal grounds and review of that decision will not entangle the court in questions of canon law, a reason frequently given to abstain from jurisdiction.  (The seminal decision is Serbian Orthodox Diocese v. Milivojevich (1976) 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151.)   He cites, for example, the decision in Jones v. Wolf (1979) 443 U.S. 595, 99 S.Ct. 3020, 61 L.Ed.2d 775, permitting adjudication of church property disputes involving no doctrinal matters but only the application of “neutral-principles” of law.  (Id. at p. 606, 99 S.Ct. at p. 3027.)   Father Cleu points out language in Jones v. Wolf, supra, specifically referring to employment decisions:  “The neutral-principles approach cannot be said to ‘inhibit’ the free exercise of religion, any more than do other neutral provisions of state law governing the manner in which churches own property, hire employees, or purchase goods.”  (Ibid.;  emphasis added.)

However, as at least one commentator has noted, the above language in Jones v. Wolf has never been interpreted as automatically conferring secular jurisdiction over all church employment relations.  (See generally Laycock, supra, at p. 1409, fn. 270.)   Rather, in deciding to what extent church employment decisions are subject to regulation, the courts have used the same analytic approach discussed above with reference to free exercise problems generally, asking the importance of the employee to the religious mission, the extent to which he carries the imprimatur of the church and in a sense represents it in his employment duties, and the invasion of church autonomy and privacy entailed by the particular regulation or lawsuit.   These considerations have been discussed both in Title VII employment discrimination cases and in other varieties of wrongful termination litigation.   Consideration of the individual decisions is helpful.

First, there are cases involving lay teachers in parochial schools.   Two such decisions found so close a nexus between the manner of teaching and the religious educational mission of the school as to insulate the religious employer from wrongful discharge liability.   In Maguire v. Marquette University (E.D.Wis.1986) 627 F.Supp. 1499, mod. (7th Cir.1987) 814 F.2d 1213, the court would not scrutinize a religious college's refusal to hire a professor of theology based on at least one doctrinal reason, differences of opinion regarding abortion.   In Miller v. Catholic Diocese of Great Falls (Mont.1986) 728 P.2d 794, the court would not entertain a wrongful discharge suit brought by a former lay teacher in a parochial school discharged, according to defendant, for inadequate disciplining of her students.   The court viewed teacher disciplinary methods as important to the religious purpose of the school.

The Miller case, like this case, was a state tort action for wrongful discharge.   Involving as it did a lay teacher teaching nonreligious subjects, it presented in some respects a weaker case than does this for conferring immunity on the religious employer under the constitution.   The stated reason for the discharge was the parochial school was dissatisfied with the teacher because of her disciplinary methods, and the school authorities considered discipline essential to the successful mission of the school.   The deposition of one of the Fathers said he could not successfully teach religion to her students because of the absence of proper discipline.  (Id. at p. 796.)   Plaintiff, however, claimed (1) that this reason was false and that her discipline was excellent;  (2) that the procedures whereby she was discharged violated due process and express promises couched in regulations requiring hearings or other procedures before terminating an employee.   The majority opinion, nevertheless, said even to inquire into the validity of these claims would violate the Church's right of free exercise because it would necessitate inquiry into what discipline is appropriate in a Catholic school, a subject fraught with religious significance and therefore immune from judicial scrutiny.   The opinion did not discuss the denial of procedural due process, although the dissenting opinion of Justice Hunt pointed out there are cases willing to review whether the expelling organization has acted in accordance with its own regulations.  (See Miller, supra, at p. 799, and cases cited therein.)

The rationale of the majority opinion in Miller is summarized thus:  “Because allowing [plaintiff's] lawsuit to go forward would impermissibly interfere with the free exercise of religion, we affirm the summary judgment ․ [in favor of defendant].” (Id. at p. 797.)   In short, the burden of having to defend a lawsuit questioning the termination of a teacher in a parochial school, where religious questions might be involved, was held to be an unwarranted inhibition of the Church's right of free exercise.   The court said “[a] judicial determination of the presence or absence of good faith on the part of Father Wagner [the declarant] would require the court to examine the school's discipline policy as applied to classroom instruction covering both religious and nonreligious subjects, and to evaluate Father Wagner's interpretation and application of that discipline policy.   Such an examination of necessity would impinge upon elements of the teaching of religion, or the free exercise of religion․  [A] court cannot properly make the determination requested here without interfering with a legitimate claim to the free exercise of religion.”  (Id. at p. 797.)   Further, the court weighed the importance of entertaining the common law wrongful discharge action against the burden on free exercise and found the latter more important:  “Mrs. Mullner's tort claim is not a right ‘of the highest order and not otherwise served’ so as to overbalance defendants' claim to the free exercise of religion.”  (Id., applying the test of Wisconsin v. Yoder (1972) 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15.)

Miller illustrates a view like that expressed in Laycock, supra, that free exercise of religion requires a considerable degree of autonomy in the operation not only of the church itself but of many large religious institutions under its auspices.  (Laycock, supra, at pp. 1408–1409.)   Laycock explains the church/employee relationship as follows:  “The free exercise of religion includes the right to run large religious institutions—certainly churches, seminaries, and schools, and ․ hospitals, orphanages, and other charitable institutions as well.   Such institutions can only be run through employees.   It follows at the very least that the free exercise of religion includes the right of churches to hire employees.   It surely also follows that the churches are entitled to insist on undivided loyalty from these employees.  [¶] The employee accepts responsibility to carry out part of the religious mission․  [C]hurches rely on employees to do the work of the church and to do it in accord with church teaching.   When an employee agrees to do the work of the church, he must be held to submit to church authority in much the same way as a member.”  (Laycock, supra, at pp. 1408–1409, fns. omitted.)   It will be noted Laycock includes hospitals in his list of institutions which should be sheltered from labor relations regulation.

The cases involving teachers in religious schools clearly recognize the doctrinal purpose which permeates instruction in such schools.   Anything more than a minimum of secular control and interference must necessarily inhibit the organization's freedom to teach in a manner consistent with and expressive of its religious philosophy.   In a real sense, teachers in such schools play a role closely resembling that of priests or ministers;  both speak to their audiences, whether from pulpit or lectern, both can potentially enhance or damage the message the church wishes to communicate, both are in a position to influence the minds of their listeners in myriad subtle ways.   Accordingly, it is consistent for courts to have eschewed involvement in employment decisions regarding both parochial teachers and pastors.3

Here, we deal with employment of a hospital chaplain.   He is a priest, wearing the robes of the Church;  the trial court has characterized his function as primarily religious, and he has himself admitted he is doing God's work for the Church.   In this sense, he is in the same position as a pastor or a teacher;  he is garbed with Church authority, in a position to influence the minds of the faithful, and in a sense the Church's representative clothed with its imprimatur.   All these factors tend to tip the constitutional scales in favor of forbidding judicial involvement with the Church's autonomy in the decision to discharge him.   As in Miller, Father Cleu here has claimed the reasons for firing him are not religious;  but as in Miller, the very inquiry into those reasons is itself something of an intrusion into the Church's sphere of exclusive control over those who do its work.

On the other hand, there are differences between hospitals and schools.   The most obvious such difference is that a hospital is necessarily subject to a great deal of secular regulation in matters of qualifications of its staff, sanitation, health procedures, insurance, and related matters.   It could be argued that by operating an institution necessarily subject to extensivesecular regulation, the Church has agreed to forego its right of exclusive control generally over the running of such an institution, or put another way, the Church has a lesser right of autonomy and privacy in the operation of a hospital than in the running of its churches or schools.   However, although this argument might have compelling force applied to the hospital's health care personnel, it is more difficult to find justification for interference between the religious order and the hospital chaplain, whose function, as the trial court found, is primarily a religious one.

In addition to cases involving teachers, two decisions deal with other varieties of employee termination situations.   One decision held it was permissible to deny unemployment insurance benefits to a discharged security guard at a Catholic hospital who preached religious doctrine to the employees and patients despite an initial promise not to do so.  (Flynn v. Maine Employment Sec. Com'n. (Me.1982) 448 A.2d 905.)   The court held such denial was not an impermissible burden on the employee's right of free exercise of religion (despite Sherbert v. Verner (1963) 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965, which held such benefits could not be denied to Sabbatarians discharged for refusing to work on Saturday).  Flynn is different from this case because it considers the free exercise rights of the employee, not the hospital;  but it is relevant in its willingness to permit the hospital a degree of autonomy in regulating its employee's conduct which might well have been inappropriate were the hospital a secular institution (like the employer in Sherbert v. Verner, supra ).

The other decision holds a reporter discharged from the employment of the Christian Science Monitor because she was a lesbian had no redress under Massachusetts or federal law.  (Madsen v. Erwin (1985) 395 Mass. 715, 481 N.E.2d 1160.)   That case, as pointed out in the dissenting opinion, most properly rests on a nonconstitutional basis, namely, that neither the Massachusetts tort of wrongful discharge nor the Federal Civil Rights Act protects an employee from being fired on account of sexual preference.   However, the decision is interesting because the majority opinion applies the judicial abstention doctrine of Serbian Orthodox Diocese, supra, 426 U.S. 696, 96 S.Ct. 2372, holding because the reporter is a member of the church, and the church owns the newspaper and is the employer, the court must defer to the church's decision;  this relationship is immune from judicial scrutiny.   The decision explicitly approves and applies Laycock's theory of religious institutional immunity in disputes with “insiders” affecting employment relationships within church-run institutions.  (Laycock, supra, at p. 1407.)   Also, the court found it important that the basis for the discharge was religious (church abhorrence of homosexuality), although the employee's position was not religious.   Engaging in a balancing analysis under the First Amendment, the Massachusetts court decided the interest of the state in protecting the stability of employment of homosexuals was outweighed by the damage done by such a lawsuit to the church's free exercise rights.

Inasmuch as here, the plaintiff is not only a Church member but a priest of the Church, and his employment, unlike that of the reporter in Madsen, is primarily religious, this case presents a stronger argument for judicial noninvolvement than did that decision.

As another commentator puts it, where an employee's primary duties are religious, then he is “ ‘clergy’ ” for purposes of deciding whether secular intrusion is permissible.  (Bagni, Discrimination in the Name of the Lord:  A Critical Evaluation of Discrimination by Religious Organizations (1979) 79 Colum.L.Rev. 1514, 1545.)

Father Cleu seeks to rely on a recent United States Supreme Court decision which refused to enjoin a state civil rights commission investigation of the firing of a teacher in a christian fundamentalist school for alleged sexually discriminatory reasons (refusal to permit new mother to work, coupled with firing because teacher brought civil suit).  (Ohio Civ. Rights Com'n. v. Dayton Christian Schools (1986) 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512.)   That case, however, explicitly deferred consideration of the constitutional issues, holding only that Younger abstention (Younger v. Harris (1971) 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669) was appropriate.4

A decision under the Civil Rights Act held the employment of a professor of psychology at a religious educational institution was not immune from Title VII scrutiny.  (E.E.O.C. v. Mississippi College (5th Cir.1980) 626 F.2d 477.)   However, that decision is probably inconsistent with the United States Supreme Court's recent interpretation of Title VII's exemption for certain religious employers.  (See Corporation of Presiding Bishop v. Amos (1987) –––U.S. ––––, ––––, 107 S.Ct. 2862, 2865 [97 L.Ed.2d 273, 279].)   That decision interpreted section 702 of the Civil Rights Act of 1964, the exemption from the Act's provisions for religious employers with respect to “ ‘the employment of individuals of a particular religion to perform work connected with the carrying on by such [religious employer] of its activities.’ ”  (Id. –––U.S. at p. ––––, fn. 1, 107 S.Ct. at p. 2865, fn. 1, 97 L.Ed.2d at p. 279, fn. 1.)   The discharge was of a secular employee, a building engineer in a nonprofit gymnasium run by the Mormon Church.

 More germane to our purposes, the Amos case also held the conferring of such exemption did not violate the establishment clause of the First Amendment.   Unlike Amos, our case does not involve interpretation of the establishment clause;  we deal solely with a claim of infringement of the right of free exercise of religion.  (See generally Laycock, supra, at pp. 1380 et seq.)   It has been suggested, however, that any exemption of a religious authority from secular regulation on free exercise grounds confers a special benefit which may tend to violate the establishment clause.  (Bagni, supra, 79 Colum.L.Rev. at p. 1515, text and notes 5 and 6.)  Amos, however, is inconsistent with that interpretation;  it holds that only direct governmental sponsorship or subsidy amounts to an establishment of religion.  (Citing, e.g., Walz v. Tax Commission (1970) 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697;  Board of Education v. Allen (1968) 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060;  Lemon v. Kurtzman (1971) 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745.)

The First Amendment states:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof․”  (U.S. Const., 1st Amend.)   This proscription requires any burden upon the free exercise of religion to be justified by a compelling government interest.  (Sherbert v. Verner, supra, 374 U.S. at p. 406, 83 S.Ct. at p. 1795;  Board of Education v. Barnette (1943) 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, 87 L.Ed. 1628.)   Here we weigh the values protected by allowing a Roman Catholic chaplain at a nonprofit religious hospital to sue the hospital for wrongful termination, against the religious freedom of the Daughters to express their mission through works at the hospital, and conclude the constitutional scales tip in favor of the latter.   In making this decision we are cognizant, among other things, of the central fact plaintiff is a priest, who would in the normal course of things look not to the secular authorities but to his Church for employment security.   Also, as we have stated, his role has been characterized as primarily religious.   The declaration of Sister Kenny is uncontradicted, that pastoral care plays a central religious role in the Daughters' mission in operating the Hospital.   Under these facts it is inappropriate to inquire into the reasons for the discharge.5  Summary judgment should have been ordered for Hospital.

Let a writ of prohibition issue as prayed preventing any further proceedings in this matter other than dismissal of the action.   Our temporary stay of proceedings shall remain in effect until this opinion becomes final.


1.   See also the midwife licensing case, Northrup v. Superior Court (1987) 192 Cal.App.3d 276, 237 Cal.Rptr. 255.

2.   See also McClure v. Salvation Army (5th Cir. 1972) 460 F.2d 553, finding employment decisions regarding a Salvation Army minister exempt from a federal civil rights action under Title VII of the 1964 Civil Rights Act, for the same reasons expressed in the constitutional decisions cited in the text, that the choice of minister is central to the autonomy of a religious organization and not subject to any secular regulation.

3.   A federal decision reaching a similar result, discussed in Laycock, found the National Labor Relations Act could not apply to teachers' unions in Catholic schools without invalidly infringing the Church's control of its ecclesiastical institutions.  (Catholic Bishop of Chicago v. N.L. R.B. (7th Cir.1977) 559 F.2d 1112, affd. on other grounds (1979) 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533, cited in Laycock, supra, at p. 1374.)   A contrary decision relied on heavily by Father Cleu is Reardon v. Lemoyne (1982) 122 N.H. 1042, 454 A.2d 428, permitting discharged nuns to sue a parochial school for breach of employment contract.   Although admittedly Reardon and Miller cannot be reconciled, both are distinguishable from our case because the discharged employees (nuns working as teachers and a principal at a parochial school, in Reardon;  a lay teacher in Miller ) were not priests or ministers and were not directly performing any religious duties.

4.   The Younger v. Harris abstention doctrine prevents a federal court from enjoining a state proceeding where the constitutional claim can be adequately raised in the state action.

5.   We do not consider it necessary to decide what hierarchical authority applies to Father Cleu's employment.   The affiliation of the Daughters with the Church, and the shared religious purpose of both, coupled with the primarily religious nature of Father Cleu's duties at Hospital, determine the First Amendment issue.   The employer may be either the Church, a Church-run institution, or an affiliated religious employer to invoke the constitutional protection.  (See Corporation of Presiding Bishop v. Amos, supra, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273;  Madsen v. Erwin, supra, 481 N.E.2d 1160.)

AGLIANO, Presiding Justice.