Certiorari Denied in Ministerial Exception Case

Yesterday the U.S. Supreme Court denied review in two companion appeals, Bowes v. Liberty University, Inc. (Docket No. 23-550) and Liberty University, Inc. v. Bowes (Docket No. 23-703, certiorari denied 3/4/2024) (Order List.).  The three judges on the 4th Circuit panel deciding the case below each had a different view on application of the ministerial exception doctrine in this age discrimination case brought by a Liberty University art professor. (See prior posting.) The case also posed other interpretive questions under Title VII of the 1964 Civil Rights Act.

Ministerial Exception Does Not Bar Whistleblower Suit by Liberty University Dean

 In Markley v. Liberty University, Inc., (VA Cir. Ct., Dec. 8, 2023), a Virginia state trial court held that the ministerial exception doctrine does not prevent a former Administrative Dean for Acedemic Operations from suing Liberty University, a Christian University, for unlawfully terminating his employment because he engaged in whistleblower activities. According to the court:

Markley, who holds a Bachelor of Science degree in Speech Communications, a Master of Divinity degree in Biblical Studies, a Master of Arts degree in Biblical Exegesis, and a Doctor of Philosophy degree in New Testament and Christian Origins, was employed by Liberty University from 2008 to 2022. During his employment, he held various positions. Though Markley never held a position that carried a religious title, such as minister, pastor, or deacon, Dr. Scott Hicks, Liberty University's Provost and Chief Academic Officer, testified that Liberty University considers all of its faculty to be ministers in the sense that they are ministering and spreading the university's religious doctrine to its students.

From 2008 until 2017, Markley taught Biblical Studies courses....

In 2018, Markley transitioned from being a full-time professor to being a full-time administrator.....

While Markley's administrative job carried no teaching responsibilities or requirements, he nonetheless did continue to teach online courses....

After considering Markley's job description and ...after taking all relevant circumstances into account, the Court finds that Markley's position as Administrative Dean for Academic Operations did not implicate the fundamental purpose of the ministerial exception. None of the essential functions or responsibilities of that administrative position involved Markley leading a religious organization, conducting worship services or important religious ceremonies or rituals, or serving as a messenger or teacher of the faith.... For purposes of the ministerial exception, the Court finds that Markley, as Administrative Dean for Academic Operations, was not a "minister."

The complaint in the case (full text) provides details of Markley's whistleblowing.

4th Circuit Panel Members Disagree on Use of Ministerial Exception Doctrine in Suit Against Liberty University

 In Palmer v. Liberty University, Inc., (4th Cir., June 30, 2023), the three judges on the panel of the U.S. 4th Circuit Court of Appeals disagreed on whether they should consider the ministerial exception doctrine in deciding an age discrimination case brought by a Liberty University art professor.  In 2018, the University notified plaintiff who was then 79 years old that her teaching contract would not be renewed for the following year. Judge King's majority opinion held that the professor had not produced evidence of age discrimination. Instead, the university dismissed her because she was not meeting its expectations regarding digital art skills. 

Despite that favorable ruling, the University, in a cross-appeal, asked the court to also rule that the ministerial exception doctrine applied. Judge King held that the court need not reach that issue.

Judge Richarson filed a concurring opinion contending that dismissal of the professor's claim should be based on the ministerial exception doctrine, saying in part:

Though Palmer did not perform formal religious instruction, her job description required her to integrate a “Biblical worldview” into her teaching. And Palmer admits to regularly praying with students, indeed starting her classes with a psalm or a prayer. Accordingly, Liberty viewed her as an official “messenger” of its faith...

If a court imposes a minister on a congregation that doesn’t want her—even if the court does so based on employment-law principles—it nonetheless impinges on the church’s religious interest in choosing who speaks for it....

Skirting the ministerial exception by dismissing an employment-discrimination claim on its merits forces us to inquire into the church’s motives for firing its minister. But, as discussed already, the church’s decision is intrinsically bound up in religious doctrine. To subject such a decision to the scrutiny of temporal courts threatens the church’s “power to decide for themselves, free from state interference, matters of . . . faith.”...

Because Palmer—like every professor at Liberty—served as the school’s religious “messenger” to its students, she was its “minister” for First Amendment purposes. The ministerial exception thus bars her employment-discrimination claim.

Judge Motz filed a concurring opinion responding to Judge Richardson's opinion.  Judge Motz said in part:

Make no mistake: the conception of the ministerial exception advanced by my concurring colleague is no mere application of existing precedent. It is a dramatic broadening of the ministerial exception that would swallow the rule.... 

The ministerial exception effectively “gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing their ‘ministers,’ even when the discrimination is wholly unrelated to the employer’s religious beliefs or practices.”... It is no exaggeration to say that the ministerial exception “condones animus.”...  Thus, the necessary implication of greatly expanding the ministerial exception is that far fewer employees would be protected from employment discrimination.

When it comes to key religious figures, this is a necessary tradeoff.... 

But Palmer was not a key religious figure or a minister. She was an art professor. Indeed, if basic acts like praying with one’s students and referencing God in the classroom are enough to transform an art professor into the type of key faith messenger who qualifies for the ministerial exception, one can only speculate as to who else might qualify for the exception...

An employee does not shed her right to be free from workplace discrimination simply because she believes in God, prays at work, and is employed by a religious entity.

Ministerial Exception Does Not Apply To Liberty University Art Teacher

In Palmer v. Liberty University, Inc., (WD VA, Dec. 1, 2021), a Virginia federal district court held that the ministerial exception doctrine does not apply to prevent an age discrimination suit by an art professor at Liberty University whose contract was not renewed. Concluding that the teacher is not a "minister" for purposes of the ministerial exception, the court said in part:

Palmer's educational background is largely secular.... At the core of Palmer's daily responsibilities was teaching art classes on subjects like drawing and sculpture. For a brief time in the mid-1990s, she also taught humanities courses.... She concedes that she began each class with a short prayer or psalm reading, but she did not otherwise integrate Christian lessons into her classes....  Occasionally, her art lessons would reflect Biblical stories or lessons...., but this was not, apparently, the norm....

Outside of class, Palmer did not significantly participate in her students' spiritual lives. She did not bring her students to church services.... She occasionally counseled them on personal matters outside the immediate scope of her teaching duties, and would have periodic conversations about spirituality with students, but she never led them in Bible study, guided them in scripture, or gave them sermons.