No Bless Oblige

The United States Court of Appeals for the Ninth Circuit affirmed the summary judgment dismissing employment-related claims of a plaintiff who supervised the preparation of kosher food, as noted in the case headnote

The panel affirmed the district court’s summary judgment in favor of the Union of Orthodox Jewish Congregations of America (OU) and Rabbi Nachum Rabinowitz, holding that the First Amendment’s ministerial exception barred plaintiff Yaakov Markel, whom UO formerly employed as a mashgiach to supervise food preparation for kosher compliance, from bringing employment-related claims.

The OU is organized as a not-for-profit corporation whose mission is to serve the Orthodox Jewish community. It runs the largest kosher certification program in the United States, and the program provides most of OU’s revenues. The district court held that OU is a religious organization and that a mashgiach is a “minister” within Orthodox Judaism. Markel’s employment-related claims, therefore, were categorically barred by the First Amendment’s ministerial exception, which precludes the application of “laws governing the employment relationship between a religious institution and certain key employees.”

The panel agreed with the district court that the ministerial exception categorically barred Markel’s employment-related claims because UO is a religious organization and a mashgiach is a minister. The acceptance of revenue does not deprive an organization with a religious mission of First Amendment protections. Here, OU was organized to support the Orthodox Jewish Community, its activities primarily serve this purpose, and it holds itself out to the public as religious. Markel’s role was essential to OU’s religious mission. Because only observant Orthodox Jews can serve as a mashgiach for the OU, and because they are necessary to carrying out OU’s religious mission of ensuring the wide availability of kosher food, a mashgiach is a minister for purposes of the ministerial exception.

The panel rejected Markel’s argument that the ministerial exception was inapplicable because his dispute involved only secular issues. A religious institution’s decisions, even if facially secular, are often intertwined with religious doctrine. Moreover, a religious organization need not provide any religious justification to invoke the ministerial exception. Finally, the panel held that given the broad purpose of the ministerial exception, it protects a religious organization’s supervisors and religious leaders from claims brought by ministerial employees.

Concurring in part and concurring in the judgment, Judge Sanchez agreed that the ministerial exception applied under the facts of this case. As a head mashgiach who ensured the kosher certification of grape products, Markel’s work was essential to the spiritual mission of UO. Because Markel qualified as a minister, his claims challenging UO’s tangible employment actions were barred under the ministerial exception. Judge Sanchez did not join Section III.C of the opinion or the majority’s conclusion that the Supreme Court has taken a broad view of who counts as a minister. This case did not require the panel to adopt either a broad or narrow view of the ministerial exception or to wade into questions about whether a court can differentiate between “secular” or “religious” decisions. To the extent the majority suggests that the ministerial exception also bars non-employment-related claims brought by a ministerial employee, that view is at odds with both Supreme Court and circuit precedent.

(Mike Frisch)