ministerial exception and rfra in the second circuit

[Samuel Groner]

Although Lyght v. Hankins held that RFRA displaced the ministerial
exception, as Marc Stern points out, it is worth noting that in later
decision the second circuit cast doubt on whether Hankins was decided
correctly, and in any case limited its application to cases where the
plaintiff did not knowingly and expressly waive the RFRA defense.
Judge Sotomayor, by the way, was the judge who dissented in Lyght and
argued that RFRA did not displace the ministerial exception.

See Rweyemamu v. Cote, 06-1041 (2nd Cir. 2008):

"Hankins v. Lyght and the Application of RFRA: We reach the question
of the ministerial exception and decide this case on constitutional
grounds notwithstanding our decision in Hankins, in which a panel of
this court decided a similar case on statutory grounds, by holding
that RFRA applied as a defense to the plaintiff's discrimination
claim. Cf. Lyng v. Nw. Indian Cemetary Protective Ass'n, 485 U.S. 439,
445 (1988) ("A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional questions
in advance of the necessity of deciding them."). The statutory
argument is not available in this case because defendants knowingly
and expressly waived a RFRA defense.

...

Notwithstanding our own doubts about Hankins's determination that RFRA
applies to actions between private parties when the offending federal
statute is enforceable by a government agency,2 there is no need for
us to wrestle with RFRA's applicability because the defendants in this
case, unlike in Hankins, have 2 First, we think the text of RFRA is
plain, see Leocal v. Ashcroft, 543 U.S. 1 , 8 (2004) ("Our analysis
begins with the language of the statute."), in that it requires the
government to demonstrate that application of a burden to a person is
justified by a compelling governmental interest. See 42U.S.C. § 2000bb
1(b) (stipulating that government may only burden a person's exercise
of religion if "it demonstrates" that it is necessary (emphasis
added)); Hankins, 441 F.3d at 114-15 (Sotomayor, J., dissenting) ("The
statute defines `demonstrate' as `meet[ing] the burdens of going
forward with the evidence and of persuasion.' 42 U.S.C. § 2000bb-2(3).
Where, as here, the government is not a party, it cannot `go[]
forward' with any evidence."). Thus, we do not understand how it can
apply to a suit between private parties, regardless of whether the
government is capable of enforcing the statute at issue. See also
42U.S.C. § 2000bb-1(c) (providing for "appropriate relief against a
government" (emphasis added)); Tomic v. Catholic Diocese, 442 F.3d
1036, 1042 (7th Cir. 2006), cert. denied, 127 S. Ct. 190 (2006);
Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110,
1121 (9th Cir. 2000) (suggesting that RFRA should not apply to suits
between private parties); Redhead v. Conference of Seventh-Day
Adventists, 440 F. Supp. 2d 211, 218 (E.D.N.Y. 2006).


Second, there are strong policy reasons not to apply RFRA to an action
by a private party seeking relief against another private party. RFRA
does not apply to state law. Boerne, 521 U.S. 507. Thus, disparate
treatment of federal- and state-law claims is assured -- consideration
of the former under RFRA and the latter under NLRB v. Catholic Bishop,
440 U.S. 490 (1979); cf. Hutchison v. Thomas, 789 F.2d 392 (6th Cir.
1986) (dismissing common law claims under ministerial exception).
waived a RFRA defense.


Under Hankins, [a] party may certainly waive or forfeit a RFRA defense
by failing to argue that a law or action substantially burdens the
party's religion. . . . Where a party fails to assert a substantial
burden on religious exercise before a district court, therefore, the
party may not raise that issue . . . for the first time on appeal. 441
F.3d at 104. Here, the defendants never once mentioned RFRA in their
motion to dismiss before the district court, nor did they ever argue
that Title VII substantially burdens their religion. Their arguments
to the district court were premised entirely on the ministerial
exception and the Free Exercise Clause's requirement that churches be
free from government interference in matters of church governance and
administration.

...

Because the defendants explicitly waived any defense based on a
violation of RFRA after they became aware of Hankins, we find that
they executed an effective waiver of a known right.   See Curtis
Publ'g Co. v. Butts, 388 U.S. 130, 143 (1967) ("[A]n effective waiver
must . . . be one of a `known right or privilege.'" (citation
omitted)); cf. id. at 145 ("We would not hold that Curtis waived a
`known right' before it was aware of the New York Times decision.").
We therefore analyze the case on the primary grounds argued by the
parties -- the application of the ministerial exception -- and need
not further address Hankins's treatment of RFRA, as that statute is
not at issue here.