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Ninth Circuit:
Ministerial Exception Applies to Kosher-Certification Service
By a MetNews Staff Writer
A company that certifies food as kosher is a religious institution, and a “mashgiach”—an Orthodox Jew who supervises food preparation to ensure that it’s kosher—is a minister, the Ninth U.S. Circuit Court of Appeals declared yesterday, concluding that the “ministerial exception,” grounded on the First Amendment’s Religion Clauses, bars a lawsuit by the mashgiach against the company that had employed him even though no religious matters are in dispute.
Plaintiff Yaakov Markel alleges that he wasn’t paid overtime and had been promised a promotion and wage hike but didn’t get them. He brought his action in the Los Angeles Superior Court but it was removed by the defendants to the U.S. District Court for the Central District of California.
The opinion by Circuit Judge Ryan D. Nelson affirms a summary judgment granted by Judge John W. Holcomb in favor of the defendants, Union of Orthodox Jewish Congregations of America (“OU”) and Rabbi Nachum Rabinowitz.
Joining in Nelson’s opinion was Circuit Judge Lawrence VanDyke. Circuit Judge Gabriel P. Sanchez authored an opinion partially concurring.
Receives Revenues
Markel takes the position that OU is not a religious institution because it provides a service for as fee and makes a profit. Its kosher certification operation is the largest in the nation.
“The act of profiting, or competing with for-profit companies, however, does not inherently make an organization non-religious for purposes of the ministerial exception,” Nelson said. “Nor does it do so on these facts.”
He noted that OU, a tax-exempt organization, devotes its profits to religious and educational programs.
“OU is a religious organization,” the judge declared.
Markel disclaimed being a minister. Nelson said that his role as a mashgiach was essential to OU’s kosher-certification program, and “[i]t thus follows that he was OU’s minister.”
‘Novel Issue’
Markel argued that “the novel issued raised by this appeal” is “whether the ministerial exception applies when the religious institution fails to ever state, claim, allege, testify, or otherwise state that their failure to pay a person doing work for them is keyed to a religious decision, doctrine, or issue.”
He asserted:
“Appellees have…also failed to create any indirect or direct link between their refusal to pay Markel and any religious issue or decision of any kind. Instead, Appellees’ evidence shows that they would have paid Markel overtime if they thought he worked the hours claimed, but they don’t believe he worked those hours.”
The appellant declared:
“All of Markel’s claims can be resolved through the analysis of secular evidence (whether or not Markel worked the hours he claims) and through the application of secular analysis (whether or not the OU agreed to pay Markel overtime and the rates set by California law for overtime). The entire trial and resolution of all of Markel’s claims will not implicate a single religious issue, doctrine or decision, and will not require any government entanglement or regulation of religion.”
Contention Rejected
Nelson responded:
“Delineating a religious organization’s decisions between religious and secular would create excessive entanglement between the church and state, given the coercive nature of the discovery process. Nor would it be appropriate. A religious institution’s decisions, even if facially secular, are often intertwined with religious doctrine. By that same token, our cases forbid religious institutions from requiring a religious justification for their decisions.”
The jurist went on to say:
“Given the risk that stems from the process of judicial inquiry itself, we reject Market’s argument that the ministerial exception is inapplicable because his dispute involves only ‘secular’ issues. This distinction not only lacks constitutional significance but would lead to unconstitutional judicial action.”
He added:
“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.”
Rabbi Protected
Cases that have recognized the ministerial exception, Nelson said, have not considered whether the exception extends to individual defendants, and a question exists as to whether is protected. He wrote:
“Given the broad purpose of the ministerial exception, however, we conclude that it protects a religious organization’s supervisors and religious leaders from claims brought by ministerial employees.”
Ryan elaborated:
“Nothing about the constitutional analysis changes if the defendant is another minister….
“Since the same constitutional harm looms regardless of whether an employee-plaintiffs employment-related claims are against the religious organization or its leaders, we hold that the ministerial exception protects both.”
Sanchez agreed with the result but disassociated himself from the view that the ministerial exceoption can apply to purely secular disputes.
The case is Markel v. Union of Orthodox Jewish Congregations of America, 23-55088.
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