ILNews

Circuit examines ministerial exception

Michael W. Hoskins
January 1, 2008
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Two former administrators of Salvation Army thrift stores in Indianapolis are appealing their lawsuit against the non-profit organization on grounds that they were wrongly denied overtime pay in violation of a federal labor law.

But at issue in their federal case is whether they're classified as "employees" and whether a religious freedom exception barring courts from getting involved in church management can be applied to their employment law claims.

The 7th Circuit Court of Appeals heard arguments Wednesday in Steve and Lorrie Schleicher v. Salvation Army, No. 07-1333, a case from U.S. District Judge Richard Young in Indianapolis. The husband and wife, who'd worked for the non-profit religious organization since 1995, sued on grounds that they weren't receiving compensation for their work in operating an adult rehabilitation center and five Indianapolis area thrift stores in 2003 - often entailing more than 40 hours of work each week.

The Salvation Army refused to pay them unpaid wages, contending that the ministerial exemption - barring civil courts from reviewing employment disputes between a minister and a church normally applied through Title VII of the Civil Rights Act of 1964 - applies and blocks the court's jurisdiction. Judge Young dismissed the case in January 2007, holding that the ministerial exemption applies to the Fair Labor Standards Act claims the Schleichers were making in regard to unpaid wages.

By allowing the case and applying Title VII employment laws, the court found this would result in an encroachment by the state into an area of religious freedom that's forbidden under the First Amendment.

But paving way for first impression at the Circuit level, Judge Young relied on opinions from other Circuit Courts and wrote in his decision, "Although the Seventh Circuit has not had occasion to apply the ministerial exception to FLSA suits, this court is persuaded that were the issue before the Seventh Circuit, it would find it applicable to such suits."

Appellate panel Judges Richard Cudahy, Richard Posner, and Terence Evans heard arguments Wednesday morning. Audio of the arguments wasn't available online through the court.

Indianapolis attorney Ronald E. Weldy contends that the court should reverse Judge Young's dismissal of the suit because it's contrary to controlling precedent of the 7th Circuit and Supreme Court of the United States.

"No ministerial exception to the FLSA exists when the work at issue concerns commercial activity," the brief states. "The fact that employees were ministers who performed ministerial duties for Employer does not alter the fact that Employees also managed and operated a commercial enterprise for Employer that was clearly governed by provisions of the FLSA."

Weldy cited caselaw that FLSA applies to any religious organization's activities if they are engaged in commerce and that those individuals claiming protection are classified as "employees" within the statute.

However, attorneys Edward Hollis and Scott Himsel with Baker & Daniels in Indianapolis counter that point in their 38-page brief, mentioning that the U.S. Department of Labor doesn't recognize ministers as "employees" within the coverage of the FLSA because of the ministerial exception.

The attorneys argue that the Schleichers were responsible for religious and spiritual guidance as part of their jobs, including the commercial aspects of selling clothes, furniture, and other items. Therefore, the ministerial exception applies.

"The First Amendment prohibits the government from determining who is a minister and how a church interacts with a minister," the brief states. "To avoid this problem, courts have consistently, indeed uniformly, not involved themselves in any aspect of the church-minister relationship. The First Amendment prohibits a court not just from deciding issues of religious doctrine but also from interfering in internal church government."
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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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