Rooted in the First Amendment’s religious freedom clause, the ministerial exception generally prohibits enforcing any employment laws between a religious organization and its ministers. Which employees are ministers, however, has become more regularly litigated as religious organizations expand the scope of their organizations and missions. Now, in Markel v. Union of Orthodox Jewish Congregations, No. 23-55088 (9th Cir. Dec. 30, 2024), the Ninth Circuit Court of Appeal tackles additional questions around the types of workers who may be ministers as well as the types of religious organizations that may exercise the ministerial exception. In all cases, the Ninth Circuit takes a broad, expansive view of the protections offered to religious organizations through the ministerial exception.
From 2011 through 2018, Yaakov Markel worked for the Union of Orthodox Jewish Congregations of America (the Union) as a mashgiach, which is “an inspector appointed by a board of Orthodox rabbis to guard against any violation of the Jewish dietary laws.” In other words, the mashgiach ensures that food meets Jewish dietary law standards to be labeled “kosher.” To qualify to serve as a mashgiach, Markel needed to submit a letter from an Orthodox rabbi that he was Sabbath-observant and knowledgeable about — and compliant with — kosher law.
The Union is a not-for-profit corporation that maintains a mission to serve and support the Orthodox Jewish community, including — as one of its primary activities — ensuring the wide availability of kosher food. It does this by operating the largest kosher food certification program in the country. The Union then uses revenues from the certification program to support youth, teen and educational programming, as well as generally supporting its core religious mission of serving the Orthodox Jewish community.
Markel’s role as a mashgiach was to oversee the kosher integrity of grape products at two wineries. After several years in this role, a dispute arose between Markey and his supervisor. Markel claimed that he was promised a promotion and a raise, but the Union didn’t deliver on its promise. Markel also claimed that the Union withheld overtime compensation.
Markel and the Union couldn’t resolve its dispute, so Markel resigned his position and filed suit for fraud, misrepresentation, and wage and hour claims against both his supervisor and the Union. The Union moved for summary judgment in its favor, because it alleged that Markel’s role was ministerial, and the ministerial exception bars any employment-based lawsuits between a religious organization and its ministers. The court agreed and ruled in favor of Markel’s supervisor and the Union. Markel appealed to the Ninth Circuit.
Markel raised three arguments on appeal:
- Because the Union turned a profit on its kosher food certification program and competed with other for-profit certification programs, it was not a religious institution;
- Markel’s role as a mashgiach was in food service, not as a minister; and
- The dispute between Markel and the Union was secular as it only related to employment matters, and the Union didn’t have a religious purpose in depriving Markel of his promotion and wages.
The Ninth Circuit disagreed with Markel on all three arguments. Starting on Marker’s first argument, the Ninth Circuit noted that the U.S. Supreme Court has never defined “religious institution” and neither has the Ninth Circuit when evaluating defenses under the ministerial exception. The Ninth Circuit did note, however, that when evaluating such claims, there isn’t a rigid formula for who is a minister, and it follows that there also shouldn’t be one when deciding what is a religious institution. As the Ninth Circuit notes, the most recent Supreme Court decision involving the ministerial exception in Our Lady of Guadalupe Sch. v. Morrissey-Berru found primary Catholic schools to be religious institutions — the organization’s mission is central to whether it is a religious institution, not whether it charges fees or competes with the private sector.
Here, the Union’s mission was undisputed. The Union’s articles of incorporation noted that its mission is to support the Orthodox Jewish community, and its primary activities carried out that mission by ensuring the availability of food meeting their religious dietary laws as well as supporting other ministerial and education community programs. Lastly, even though the Union generates revenue, it is a not-for-profit organization, and thus, that revenue doesn’t support private interests.
Addressing Markel’s second argument, the Ninth Circuit noted that prior Supreme Court decisions, including Our Lady, didn’t set out a rigid, one-size-fits-all test to determine whether a worker is a minister but instead listed factors courts may use in its case-by-case evaluation. These factors include:
- How the religious institution described the worker’s role;
- The institution’s description of the worker’s religious training and commissioning;
- Whether the worker holds themselves out as a minister of the institution; and
- The worker’s job duties in conveying the institution’s message and carrying out its mission.
While all four factors are evaluated, Our Lady held out the worker’s role and job duties as principle among the four factors.
Following these factors — especially the role Markel played within the Union — the Ninth Circuit held that Markel was a minister. Primarily, Markel’s role as mashgiach served an essential function of the Union’s religious mission in supporting the Orthodox Jewish community with available food that complied with the religion’s dietary rules. Further, in order to fill the role, Markel must have been an observant member of the religion who was familiar with the rules for food preparation in order to certify that the food allowed religious members to fully live their faith.
Lastly, the Ninth Circuit considered whether a purely secular dispute over Markel’s employment —without any religious justification by the Union — could fall within the ministerial exception. The Ninth Circuit declined to create a test that would neither weigh religious versus non-religious disputes, nor require a religious justification from the institution in a dispute with one of its workers.
The Ninth Circuit reasoned that to require courts to investigate a religious institution’s justification for a decision would require the government, through the judiciary, to become excessively entangled with religious operations and would violate the First Amendment, because it risks the judiciary stepping in to determine a religious organization’s beliefs and practices for it. Further, religious institutions’ decisions that may appear secular on their face are often intertwined with religious doctrine or dogma. As a result, the courts — including the Ninth Circuit here — must take a robust and expansive viewpoint of the ministerial exception.
As a result, the Ninth Circuit upheld the judgment, and Markel, as a minister, may not bring any employment claims against the Union as a religious organization. Religious organizations with religious missions should take this opportunity to clearly define not only their role in the community they seek to serve but also those key employees that may serve that mission.
Matthew J. Roberts, Associate General Counsel, Labor and Employment
CalChamber members can read more about “Exemptions for Religious Corporations and Associations” in Religious Discrimination in the HR Library. Not a member? Learn how to power your business with a CalChamber membership.
