Coulee Catholic Schools v. Labor & Industry Review Commission

2009 WI 88, 768 N.W.2d 868, 320 Wis. 2d 275, 2009 Wisc. LEXIS 297, 106 Fair Empl. Prac. Cas. (BNA) 1514

• Court: Wisconsin Supreme Court
• Decided: July 21, 2009
• Docket: 2007AP496
• Status: Published

Opinions

MICHAEL J. GABLEMAN, J.

¶ 1. Wendy Ostlund ("Ostlund") brought a claim alleging that she was terminated from her first-grade teaching position at a Catholic school on the basis of her age in violation of the Wisconsin Fair Employment Act ("WFEA"). The school responded that her position was "ministerial," maintaining therefore, that her suit was barred by the First Amendment of the United States Constitution. The La Crosse County Circuit Court, Dale T. Pasell, Judge, determined that her position was not ministerial. In a published decision,¹ the court of appeals affirmed the judgment of the circuit court.

¶ 2. The question before us is whether Ostlund's age discrimination claim under the WFEA is precluded by the First Amendment and/or the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution.

¶ 3. We conclude that both the Free Exercise Clause of the First Amendment of the United States Constitution and the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution preclude employment discrimination claims under §§ 111.31 to 111.395 of the Wisconsin Fair Employment Act for employees whose positions are important and closely linked to the religious mission of a religious organization. In the case at bar, Ostlund's school was committed to a religious mission — the inculcation of the Catholic faith and worldview — and Ostlund's position was important and closely linked to that mission. Therefore, Ostlund's age discrimination claim under the WFEA unconstitutionally impinges upon her employer's right to religious freedom. Accordingly, we reverse the court of appeals' decision and remand to the circuit court to dismiss Ostlund's claim.

I. FACTS

¶ 4. Wendy Ostlund began working as a first-grade teacher at St. Patrick's Elementary School, a Catholic school located in Onalaska, Wisconsin, in 1974. St. Patrick's is a member school of Coulee Catholic Schools ("CCS"), which is a cooperative effort between area Catholic schools to share resources, streamline administration, and unify curriculum. CCS is owned, operated, and subject to the authority of the Diocese of La Crosse, Wisconsin, and is therefore an entity of the Catholic Church. In 2003, CCS consisted of one high school, one middle school, five primary/elementary schools, and one early childhood center.

¶ 5. The Catholic school is considered a "ministry" of the Catholic Church. According to documents submitted in the course of this litigation, the Catholic Church considers "the foundation of the whole educational enterprise in a Catholic school" to be Jesus Christ. The Catholic school aims at "a Christian concept of life centered on Jesus Christ." Teachers are believed to be essential to this ministry. As Archbishop Emeritus of St. Louis, Raymond L. Burke, the Bishop of La Crosse at the time of Ostlund's termination, testified in his deposition:

[I]t's the teachers who make the Catholic school happen. In other words, the students first learn the integration of faith and culture, the integration of faith and learning the practice of their faith from their active learning from the witness that their teachers give. And to teach a Catholic spirit, a Christian spirit in a whole school, the teachers have to reflect this, first of all, in their own lives.

¶ 6. During her tenure with CCS, Ostlund's typical school day would run from approximately 7:30 a.m. until 3:30 p.m. Before students arrived, Qstlund would finish preparations for the day, including finalizing her lesson plans. After students arrived, Ostlund began the day with prayer and the Pledge of Allegiance.

¶ 7. The first subject of the day was reading. After reading, students had recess, followed by either computer instruction or art class. Both of these were taught by another teacher. Ostlund would then teach science and social studies on alternating days. Her social studies instruction contained a Christmas unit during which Ostlund had the students make a booklet that discussed ways other countries celebrate Christmas.

¶ 8. After this, students had lunch, followed by recess. Ostlund did not supervise lunch, but did sometimes go out to the playground with the students. Following lunch, Ostlund again led the students in prayer. The afternoon schedule consisted of math and handwriting. The students then went to physical education or music class, which were taught by another teacher.

¶ 9. During this more traditional academic curriculum, Ostlund made efforts to incorporate religious examples, symbols, and values into the lessons. For example, in a reading exercise involving word recognition that required students to match colors with corresponding numbers on a worksheet, the colors corresponded to different objects in the Garden of Eden. Or in math, some of the exercises involved worksheets where students connected dots that formed religious images.

¶ 10. The final period of the day was religion, which usually lasted thirty minutes. Ostlund taught religion on her own three days per week. A priest or deacon accompanied Ostlund on the fourth day. During religion class, Ostlund taught the Catholic faith, not comparative religion. Ostlund taught her students about prayer, and was often the first person to teach the first graders certain Catholic prayers. She taught them basic Catholic doctrine, and specific worship practices like the Stations of the Cross. Ostlund also helped her students celebrate school-wide religious holidays such as St. Patrick's Day, Advent,² May crowning,³ and Lent.⁴

¶ 11. On the fifth day of the week, Ostlund attended a school-wide Mass with her students. Approximately every fourth week, Ostlund was responsible for helping to plan the Mass with her class. When planning Mass, Ostlund was in charge of choosing appropriate readings from the Bible. She was also responsible for the petitions that would be read and prayed during Mass. These she would either choose from a liturgy guide, or at times, write herself. Ostlund also participated in various aspects of the Mass, including reading responsorial psalms and carrying the bread and wine. Thus, Ostlund played an important role in planning the all-school Mass and in teaching her students about the Mass — one of the central acts of worship in the Catholic faith.

¶ 12. In addition to these specific duties, Ostlund's classroom incorporated objects of the Catholic faith into the learning environment, such as a crucifix and statue of Mary. The classroom had a prayer corner where the Bible, a rosary, and religious candles were displayed. She also incorporated certain seasonal displays such as palm leaves around Palm Sunday and a nativity scene during Christmas.

¶ 13. Each year, Ostlund was required to sign an employment contract, which provided in pertinent part:

The Employee agrees to faithfully and conscientiously perform any and all duties of the position(s) for which he/she is hired and all other duties as directed by the Employer including, but not limited to ... complying] with the requirements of the Diocese of La Crosse and the State of Wisconsin regarding the educational preparation of teachers.

It also provided:

The Employee as a teacher in a Catholic educational system agrees that as a condition of employment he/she will support and exemplify in conduct both Catholic doctrine and morality. He/She must be consistent in expression and example, with the teaching and practice of the Catholic faith and shall not teach, advocate, encourage or counsel beliefs or practices contrary to the Catholic faith.

¶ 14. The CCS Faculty and Staff Handbook included written rules, regulations, and policies adopted by the Diocese of La Crosse and approved by its Bishop. These policies required teachers to comply with certain standards. A preamble to these standards stated in pertinent part:

The primary mission of the Catholic Church is to continue the mission of Jesus: PROCLAIMING THE KINGDOM OF GOD. Central to this mission is the teaching of the Word of God. This ministry of the Word is given expression in the education efforts of the Church.

It is the goal of the five dioceses in the state of Wisconsin to promote and support a comprehensive educational ministry. The ministry extends to people of all ages: adults, youth and children.

Following their long tradition of service to the people of Wisconsin, Catholic elementary and secondary schools and religious education programs continue to be an essential part of the educational ministry of the Church.

By virtue of their ministry, personnel in Catholic education are role models for other adults, youth and children. Therefore, they are called to be well-informed in Catholic teachings and committed to a Catholic way of life.

¶ 15. The standards themselves contain several requirements for teachers. Notably, elementary school teachers of religion were required to have both basic and advanced certifications in religion, which Ostlund acquired and maintained. Both the basic and advanced certifications involved yearly continuing education sessions where Ostlund was instructed on how to teach Catholic principles and doctrine.

¶ 16. Teachers were also required to "have appropriate certification with the Department of Public Instruction." Ostlund had a Bachelor of Science degree in physical education, but was not a licensed teacher. She was working to obtain her teaching license, however, which at some point had become a new requirement for CCS elementary school teachers.

¶ 17. Additionally, the standards required teachers of religion to be "Catholics who have admission to the full sacramental life of the Church and are engaged in the community of the faithful." However, the reviewing agency in this case concluded that, as a matter of practice, CCS did not require elementary school teachers to be members of a religious order or members of the Catholic Church. As discussed below, we defer to this finding as long as it is substantially supported by the record, which it appears to be. Ostlund herself was Catholic and a member of St. Patrick's parish.

¶ 18. CCS provided a formal job description to Ostlund, which she signed.⁵ The job description also served as a template for her yearly performance evaluation. Ostlund had six main areas of responsibility, broadly categorized as: (1) providing a "Religious Atmosphere," (2) "Teaching Responsibilities," (3) "Supervising Responsibilities," (4) "Professional" duties, (5) "Grade Level Responsibilities," and (6) complying "with all areas addressed in the contract and policies of the Diocese of La Crosse."

¶ 19. The "Religious Atmosphere" component contained the following standards:

A. Provide a good Christian model and example in one's attitudes and actions.

B. Encourage spiritual growth in students by developing inner discipline, character, morals, and values.

C. Provide leadership in living and celebrating life and liturgies.

¶ 20. Her "Professional" duties required her to, among other things, "Earn and maintain Religious Certification."

¶ 21. As part of her yearly evaluation, Ostlund and a supervisor commented on various, aspects of her job performance as outlined in her job description. Some of Ostlund's comments regarding the "Religious Atmosphere" component of her job duties are relevant here. In her 1997 job evaluation, Ostlund stated: "When I teach prayer or religion class, attend or prepare liturgy or talk about morals and values, I know that I am dealing with things that are not found in a public school." With regard to her teaching technique, Ostlund commented in that same evaluation: "I am able to incorporate Catholic values into all of the subjects that I teach." In her 2001 job evaluation, she commented: "I encourage spiritual growth during religion class as well as throughout the day." In her 2002 evaluation, Ostlund stated: "I have taught religion daily and prepared liturgies, which are well thought out and appropriate for first graders." Ostlund's evaluator stated that Ostlund "prepares students for participation in liturgies and prayer services celebrated during the school year."

¶ 22. In the spring of 2002, CCS closed one of its elementary schools due to low enrollment. This required the school system to lay off several teachers. On March 27, 2002, Ostlund received a letter from the president of CCS stating that, due to the staff reductions, Ostlund would not be offered a contract for the 2002-03 school year. She was one of ten teachers not to receive contract extensions from CCS.⁶ Ostlund was age 53 when she was terminated, and was replaced with a 35-year-old teacher who was certified to teach elementary school.⁷

II. PROCEDURAL HISTORY

¶ 23. Following her termination, Ostlund filed an age discrimination complaint with the Equal Rights Division of the Wisconsin Department of Workforce Development ("Equal Rights Division"). Ostlund alleged that CCS terminated her because other age in violation of the WFEA, Wis. Stat. §§ 111.31 to 111.395⁸ (2007-08).⁹ The Equal Rights Officer did not find probable cause that CCS violated the WFEA when it terminated Ostlund.

¶ 24. Ostlund then appealed this initial determination and received a formal administrative hearing with the Equal Rights Division to address her claim. CCS moved to dismiss the complaint on the grounds that the Equal Rights Division lacked subject matter jurisdiction. CCS argued that Ostlund's position was "ministerial" under Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995), and therefore that adjudication of the complaint would infringe upon its First Amendment rights.

¶ 25. The Equal Rights Division Administrative Law Judge, ("ALJ"), John L. Brown, made several findings of fact and concluded that Ostlund's position was not ministerial. ALJ Brown found that, though Ostlund did engage in religiously-related activities, her primary duty was to instruct her students in a core of secular disciplines. Therefore, ALJ Brown dismissed CCS's motion, concluding that adjudication of Ostlund's complaint would not violate CCS's Free Exercise rights, and that the Equal Rights Division had subject matter jurisdiction over Ostlund's age discrimination claim. ALJ Brown then ordered a hearing to determine whether there was probable cause that CCS violated the WFEA when it terminated Ostlund.

¶ 26. CCS appealed the Equal Rights Division ruling to the State of Wisconsin Labor and Industry Review Commission ("LIRC") for administrative review. LIRC held that ALJ Brown's decision was not final, and that the pending Equal Rights Division proceeding on probable cause prevented it from hearing CCS's appeal. Therefore, LIRC concluded that Wis. Admin. Code § DWD 218.21(1) (April 2004)¹⁰ prevented it from reviewing the administrative decision.

¶ 27. CCS then sought judicial review in the La Crosse County Circuit Court, Dennis G. Montabon, Judge. CCS petitioned for reversal of LIRC's decision not to review the Equal Rights Division decision and for a declaratory judgment and writ of prohibition to prevent adjudication of the claim until administrative review was complete. The circuit court concluded that any investigation or judicial review of the discrimination claim would have to wait until LIRC made its decision on whether Ostlund's position was ministerial or not. The circuit court therefore granted CCS's writ of prohibition and remanded to LIRC for review of ALJ Brown's decision that Ostlund's position was not ministerial.

¶ 28. LIRC then reviewed the administrative decision of ALJ Brown and affirmed. Specifically, LIRC agreed with ALJ Brown's conclusion that Ostlund's primary duty as a first-grade teacher was to instruct her students in a core of secular disciplines. LIRC agreed that teaching religion four times a week, leading prayers, referring to religious symbols, incorporating religious themes into classes, preparing liturgy, and supervising liturgy did not constitute Ostlund's primary duty. LIRC thus concluded that, Ostlund's position was not ministerial and adjudication of Ostlund's complaint would not violate CCS's First Amendment rights. Because LIRC determined that the DWD had jurisdiction, it concluded that a hearing should be held to determine whether there was probable cause that CCS engaged in age discrimination against Ostlund. CCS again sought judicial review of LIRC's decision in the La Crosse County Circuit Court.

¶ 29. The circuit court, now presided over by Judge Dale T. Pasell, agreed with LIRC that, despite Ostlund teaching religion, participating in religious activities with students, and using religious examples in her lessons, her primary duty was to teach secular subject matters to her students. Hence, the circuit court held that she was not a ministerial employee, and that adjudication of Ostlund's age discrimination claim under the WFEA could proceed.

¶ 30. CCS appealed, and the court of appeals also concluded that her position was not ministerial. Coulee Catholic Schs. v. Labor & Indus. Review Comm'n, Dep't of Workforce Dev., 2008 WI App 68, ¶ 36, 312 Wis. 2d 331, 752 N.W.2d 341. In determining whether a teacher has a ministerial function, the court of appeals considered the "primary duties" test in Jocz and the three-factor test in Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999). It chose to apply the primary duties test with an additional factor from Starkman, asking whether there were "largely religious" criteria for hiring teachers. Coulee Catholic Schs., 312 Wis. 2d 331, ¶¶ 31, 39. The court of appeals ultimately concluded:

The religion class, prayers, and participation with her students in liturgies do not constitute the primary part of her work day and they are not the primary focus either of the job description or the job evaluation .... There is no evidence that there were any religious criteria for Ostlund to obtain the job, although there was required in-service religious training for all elementary teachers.... We conclude the hiring and in-service criteria support the conclusion that, while Ostlund had religious duties, they were not her primary duties.

Id., ¶ 39. CCS then sought review before this court.

III. STANDARD OF REVIEW

¶ 31. In reviewing the decision of an administrative agency, we review the agency decision and not the decision of the circuit court. Liberty Trucking Co. v. Dep't of Indus. Labor & Human Relations, 57 Wis. 2d 331, 342, 204 N.W.2d 457 (1973). Thus, we apply the same standard and scope of review as applied by the circuit court. Id. This case requires us to determine whether LIRC's decision infringes on the rights of CCS under the First Amendment of the United States Constitution and the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution. This is an issue of constitutional law, which we review de novo. Jocz, 196 Wis. 2d at 304. Our scope of review is limited by Wis. Stat. § 227.57, which prohibits us from substituting our judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. Wis. Stat. § 227.57(6). However, we may set aside a finding of fact that is not supported by substantial evidence in the record. Id.

IV DISCUSSION

¶ 32. The right to practice one's religion according to the dictates of conscience is fundamental to our system of government. See Rayburn v. Gen. Conference of Seventh-day Adventists, 772 F.2d 1164, 1167 (4th Cir. 1985) ("Each person's right to believe as he wishes and to practice that belief according to the dictates of his conscience so long as he does not violate the personal rights of others, is fundamental to our system."). We are a nation committed to and founded upon religious freedom. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 35 (2004) (O'Connor, J., concurring) (noting that we are a "Nation founded by religious refugees and dedicated to religious freedom").

¶ 33. This right is fundamental in a court of law not because religious freedom is broadly understood to be a basic human right, but because our nation's founders recognized and enshrined this right in our nation's Constitution. Roughly 60 years later, Wisconsinites saw fit to include more specific and more extensive protections for religious liberty in our state constitution.

¶ 34. We begin by analyzing religious freedom in the First Amendment of the United States Constitution. Then, we analyze the Wisconsin Constitution's religious freedom guarantees. Finally, we apply the federal and state constitutional provisions to Ostlund and her claim, ultimately concluding that her age discrimination claim impinges upon CCS's religious freedom in violation of both the U.S. and Wisconsin Constitutions.

A. Religious Freedom under the U.S. Constitution

¶ 35. The First Amendment to the U.S. Constitution provides in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const, amend. I. The first portion of this provision contains what is called the "Establishment Clause," and the second portion is called the "Free Exercise Clause."

¶ 36. Ostlund asserts that the Establishment Clause provides the adjudicatory principles for this case. She argues, for example, that giving religious employers an exemption from non-discrimination laws "dangerously encroaches upon the Establishment Clause's prohibition against furthering religion." Ostlund further asserts that the three-part Establishment Clause test announced by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), should govern our determination of whether application of the WFEA here violates CCS's constitutional rights.¹¹ Though at times mentioning the Free Exercise Clause, Ostlund argues that the only relevant question here is whether the WFEA creates excessive government entanglement with religion under the third prong of the Lemon test.

¶ 37. Supreme Court case law and common sense, however, lead to the conclusion that it is the Free Exercise Clause, and not the Establishment Clause, that is implicated in this case. The Supreme Court has stated that religious organizations generally have the "power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952). The Supreme Court then went further, explaining that the Constitution forbids the state from interfering with a church's selection of its leaders, and that this protection was grounded in "the free exercise of religion." Id.) see also Rayburn, 772 F.2d at 1168 ("Any attempt by government to restrict a church's free choice of its leaders thus constitutes a burden on the church's free exercise rights."). This approach makes sense. We do not see how granting churches and religious organizations control over the selection of their leaders implicates the establishment of religion or the favoring of one religion over another. While excessive entanglement with religion is in some sense at issue, it is at issue only to the extent it burdens CCS's right to practice its faith freely. Thus, we analyze this case under the Free Exercise Clause.

¶ 38. The Free Exercise Clause of the First Amendment states that "Congress shall make no law ... prohibiting the free exercise" of religion. U.S. Const, amend. I. This provision was incorporated through the Fourteenth Amendment, that is, made applicable to the states as well as the federal government, in Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). It is well settled that this provision protects not only the right to freedom in what one believes, but extends (with limitations) to acting on those beliefs. See Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 877 (1990). This most basic of freedoms is not just an individual right, but a collective right. That is, both individuals and communities of individuals have a right to the freedom of religion.¹² See Rayburn, 772 F.2d at 1167 (stating that religious freedom "is guaranteed not only to individuals but also to churches in their collective capacities").

¶ 39. Courts around the country have universally recognized that the First Amendment protects houses of worship from state interference with the decision of who will teach and lead a congregation. Every jurisdiction to consider the question has adopted what had been called the "ministerial exception."¹³ The ministerial exception is grounded in the idea that the "introduction of government standards [in]to the selection of spiritual leaders would significantly, and perniciously, rearrange the relationship between church and state." Rayburn, 772 F.2d at 1168-69. It recognizes that "perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large." Id.

¶ 40. The state certainly has a strong interest in eradicating discrimination, but courts "must distinguish incidental burdens on free exercise in the service of a compelling state interest from burdens where the 'inroad on religious liberty' is too substantial to be permissible." Id. at 1169 (citing Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 718 (1981)). Recognition of a church's authority to make hiring and firing decisions does remove the church's decisions in these matters from the jurisdiction of the courts with respect to anti-discrimination laws, laws that are a compelling part of our national character in their own right. But this freedom does provide protection for the church's First Amendment-sanctioned autonomy. Id.

¶ 41. The ministerial exception has deep roots in American history, but was first articulated in the context of non-discrimination claims in McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972).¹⁴ The ministerial exception was clarified and so named in Rayburn. Ordination is not required to be considered "ministerial."¹⁵ See Rayburn, 772 F.2d at 1168-69. Rather, it is the function of the position that is primary.¹⁶ See id.

¶ 42. The Rayburn court proposed a test for deciding when a position should be considered ministerial. It suggested an employee is ministerial if his or her "primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship." Id. at 1169. This inquiry "necessarily requires a court to determine whether a position is important to the spiritual and pastoral mission of the church." Id. The court in Rayburn ultimately concluded that a pastoral care associate at a Seventh-day Adventist Church was "so significant in the expression and realization of Seventh-day Adventist beliefs that state intervention in the appointment process would excessively inhibit religious liberty." Id. at 1168.

¶ 43. This test for determining whether a position is ministerial has subsequently been called the "primary duties test." In practice, the primary duties test has proved to be a flexible test without an answer key and has not yielded predictable results. See Note, The Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test, 121 Harv. L. Rev. 1776, 1788 (2008) ("[Jjudicial evaluation of the role of employees —from parochial school teachers to church organists— has not created any discernibly consistent pattern.") (footnotes omitted); Janet S. Belcove-Shalin, Ministerial Exception and Title VII Claims: Case Law Grid Analysis, 2 Nev. L.J. 86, 115 (2002) ("Applying these guidelines to specific cases has not yielded consistent results.").

¶ 44. The crux of the problem with the application of the primary duties test is what the word "primary" means. Some courts have interpreted it to mean that religious tasks must encompass the largest share of the position, what might be called the "quantitative approach." These courts will look, in the education context, for example, at the amount of time spent on particular subjects deemed "secular" versus subjects deemed "religious," or at the number of job duties that can be classified as "religious" or deemed "secular." See, e.g., Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp. 2d 849 (S.D. Ind. 1998) (holding that ministerial status did not apply to a teacher at a Catholic elementary school where "the vast majority" of her duties involved teaching secular classes); Redhead v. Conference of Seventh-day Adventists, 440 F. Supp. 2d 211, 221 (E.D.N.Y. 2006) (holding that ministerial status did not apply to an elementary school teacher because "plaintiffs teaching duties were primarily secular," and "those religious in nature were limited to only one hour of Bible instruction per day and attending religious ceremonies with students only once per year."). This line of argument is the approach advanced by Ostlund in this case, and adopted by AU Brown,¹⁷ LIRC,¹⁸ the circuit court,¹⁹ and the court of appeals.²⁰

¶ 45. Another, and we think better, way to view the ministerial exception is from what might be called the "functional" approach. This perspective focuses more on the second statement in Rayburn: "whether a position is important to the spiritual and pastoral mission of the church." Rayburn, 772 F.2d at 1169. This is a more holistic approach in which activities such as teaching, church governance, and supervision of or participation in worship are relevant evidence as to the importance of the position to the spiritual and pastoral mission of a house of worship or religious organization. The primary concern here is the function of the employee, not only the enumerated tasks themselves.

¶ 46. We reject a primary duties test that looks to see if the "vast majority" of tasks are religious, or whether a majority of the employee's time is spent on quintessentially religious tasks. This narrow view does not, in our view, sufficiently respect the constitutional imperatives of the free exercise of religion. It also serves to minimize or privatize religion by calling a faith-centered social studies class, for example, "secular" because it does not involve worship and prayer. What the quantitative approach means as a practical matter is that the state can interfere with the hiring and firing of the leaders of religious organizations and houses of worship so long as the leaders are spending (presumably) 49 percent or less of their time or tasks on whatever the court determines to be "religious" activities. This redounds in an intrusiveness inconsistent with the free exercise of religion.²¹

¶ 47. A functional analysis of the ministerial exception involves significantly less intrusion into the affairs of houses of worship and religious organizations. It envisages a more limited role for courts in determining whether activities or positions are religious. A functional analysis avoids reducing the significance of a position to a rote quantitative formula. In short, a functional analysis is truer to the First Amendment's protection of religious freedom.²²

¶ 48. A functional analysis of the ministerial exception has two steps. The first step is an inquiry into whether the organization in both statement and practice has a fundamentally religious mission. That is, does the organization exist primarily to worship and spread the faith? Any inquiry will be highly fact-sensitive. It may be, for example, that one religiously-affiliated organization committed to feeding the homeless has only a nominal tie to religion, while another religiously-affiliated organization committed to feeding the homeless has a religiously infused mission involving teaching, evangelism, and worship. Similarly, one religious school may have some affiliation with a church but not attempt to ground the teaching and life of the school in the religious faith, while another similarly situated school may be committed to life and learning grounded in a religious worldview.

¶ 49. The second step in the analysis is an inquiry into how important or closely linked the employee's work is to the fundamental mission of that organization. This again will be highly fact-specific. Relevant evidence as to the employee's importance to the religious mission of the organization will include objective employment indicators such as hiring criteria, the job application, the employment contract, actual job duties, performance evaluations, and the understanding or characterization of a position by the organization.²³ Teaching, evangelizing, church governance, supervision of a religious order, and overseeing, leading, or participating in religious rituals, worship, and/or worship services will serve as important factors, rather than the only evidence we measure or consider as under the quantitative approach. These quintessentially religious tasks will evince a close link and importance to an organization's religious mission.

¶ 50. It is helpful to review two cases that illustrate the approach we adopt today. In Pardue v. Center City Consortium Schools of the Archdiocese of Washington, Inc., 875 A.2d 669 (D.C. 2005), the District of Columbia Court of Appeals held that the ministerial exception applied to a Catholic elementary school principal, thereby precluding her race discrimination and retaliation claims against the Archdiocese of Washington. Id. at 670.

¶ 51. The court's analysis focused, correctly in our view, on the directive in Rayburn to "determine whether a position is important to the spiritual and pastoral mission of the church." Rayburn, 772 F.2d at 1169. Thus, the court's analysis initially focused on the school's mission, concluding that the Catholic schools in the Archdiocese had a "pervasive religious mission" where instruction on faith and morals was "part of the total educational process." These Catholic schools were, the court found, "an integral part of the religious mission of the Catholic Church." Pardue, 875 A.2d at 675 (quoting Lemon, 403 U.S. at 615-16).

¶ 52. After this, the court examined the principal's function, which the lower court concluded was to communicate the school's message, one founded on religious belief, to the staff, students, and parents. Id. at 676-77. The court rejected the argument that because most of her daily responsibilities were no different from a public school principal, she could not have been a ministerial employee. The court explained: "[MJerely enumerating the duties in Pardue's job description, many under secular-sounding headings such as 'materials management' and 'office management,' tells us little about whether her 'position is important to the spiritual and pastoral mission of the church.'" Id. at 677 (citing Rayburn, 772 F.2d at 1169). Instead, the court concluded that her responsibilities when viewed as a whole were "inextricably intertwined in the school's mission." Id.

¶ 53. Similarly, in an unpublished opinion, the Fourth Circuit looked primarily at the mission of a Seventh-day Adventist school in determining that the ministerial exception precluded an elementary school teacher's discrimination claims. Clapper v. Chesapeake Conference of Seventh-day Adventists, No. 97-2648, 166 F.3d 1208 (table), 1998 WL 904528, *8 (4th Cir. Dec. 29, 1998). The court noted that the school's mission, or primary purpose, was "the salvation of each student's soul through his or her indoctrination in Seventh-day Adventist theological beliefs." Id. at *1. Teachers were a vital part of this mission, and were encouraged to look at teaching "as a holy vocation." Id. at *3. The court explicitly rejected the teacher's arguments that he was not ministerial because only one of his thirteen stated responsibilities was religious in nature. Id. at *6. It found that the teacher taught the Bible, incorporated church teachings throughout the curriculum, and led the students in prayer, worship, and witnessing activities. Id. at *7.

¶ 54. In short, the court applied a functional analysis, choosing to understand teaching a "secular" class as not purely secular in the context of that religious school. Teachers were considered to have significant roles in the propagation of the faith even though a majority of their tasks and time was spent teaching a traditional academic curriculum. Id. The primary duties test was not a quantitative test, the court stated. Id. Instead, based on a total view of the facts, the central constitutional question is whether enforcement of the teacher's action "would substantially infringe upon the Chesapeake Conference's right to choose its spiritual leaders." Id. The court explained:

While the relative quantity of time an employee of a religious entity spends directly teaching and spreading the faith, providing church governance, supervising a religious order, or supervising or participating in religious ritual and worship is important in determining whether those activities are the primary duties of such employee, the degree of the church entity's reliance upon such employee to indoctrinate persons in its theology is equally important.

Id. The court then concluded that "for the reasons previously set forth, the quantitative and qualitative combination of factual circumstances in the present case compels us to conclude that the primary duties test is satisfied." Id.

¶ 55. A functional analysis of the ministerial exception makes sense because, though it departs in form from the analysis used by many other courts, it gets to the real heart of the ministerial exception, which is preventing the state from intruding into the mission of religious organizations or houses of worship. The state surely has a strong interest in ensuring fair employment opportunities regardless of age, race, and other such factors. Nonetheless, we conclude that the Wisconsin legislature oversteps its constitutional authority when its otherwise laudable efforts at fairness interfere with the hiring and firing of employees who are important and closely linked to the religious mission of a religious organization. Such actions impermissibly intrude upon the organization's exercise of religious liberty.

B. Religious Freedom under the Wisconsin Constitution

¶ 56. Article I, Section 18 of the Wisconsin Constitution was included as part of Wisconsin's original constitution in 1848.²⁴ It provides as follows:

Freedom of worship; liberty of conscience; state religion; public funds. Section 18. The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.

¶ 57. As with any document, the interpretive task is to "ascertain its true intent and meaning." State v. Beno, 116 Wis. 2d 122, 136-37, 341 N.W.2d 668 (1984). The authoritative, and usually final, indicator of the meaning of a provision is the text — the actual words used.²⁵ See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis. 2d 633, 681 N.W.2d 110 (discussing statutory interpretation).

¶ 58. The text here contains several clauses applying in different factual scenarios. It contains two clauses referring to the rights of conscience (the "Freedom of Conscience Clauses"), which we understand to refer generally to the exercise of religious freedom.²⁶ The main right protected is to "worship Almighty God according to the dictates of conscience." This right is accorded to "every person." By logical extension and as affirmed by the Supreme Court with respect to First Amendment rights (see Rayburn, 772 F.2d at 1167), individuals also have the right to practice their religious faith in groups, as collections of individuals, and to form houses of worship and faith-based organizations committed to achieving their faith-based ends.

¶ 59. The Wisconsin Constitution uses the strongest possible language in the protection of this right. It provides that the right to worship as one is so convinced "shall never be infringed." It goes even further, stating, "nor shall any control of, or interference with, the rights of conscience be permitted." It is difficult to conceive of language being stronger than this. The question is, how do these strong prohibitions on state government apply here?

¶ 60. This court has stated that Article I, Section 18 serves the same dual purposes as the Establishment Clause and Free Exercise Clause of the U.S. Constitution. State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 332, 198 N.W.2d 650 (1972). However, we have also recognized that these provisions, though sharing some similarities with the federal provisions, are not the same. State v. Miller, 202 Wis. 2d 56, 63-66, 549 N.W.2d 235 (1996). The protections and prohibitions in the Wisconsin Constitution are far more specific. And with regard to the rights of conscience, this clause contains extremely strong language, providing expansive protections for religious liberty. Thus, we are not limited to current First Amendment jurisprudence when interpreting our own constitutional protections for religious liberty; rather, we are required to give effect to the more explicit guarantees set forth in our state constitution. Id. at 65-66.

¶ 61. When faced with a claim that a state law violates an individual or organization's freedom of conscience, we have generally applied the compelling state interest/least restrictive alternative test. Id. at 66. Under this test, the religious organization has to prove (1) that it has a sincerely held religious belief, and (2) that such belief is burdened by the application of the state law at issue. Upon this showing, the burden shifts to the state to prove (3) that the law is based upon a compelling state interest (4) that cannot be served by a less restrictive alternative. Id.

¶ 62. This analysis — though appropriate in most circumstances²⁷ regarding laws burdening the rights of conscience — is not helpful here. The law at issue in this case is not simply a burden on an individual's or organization's religious beliefs; it is an effort by the state to intrude into the hiring and firing decisions of a religious organization. As we have previously stated, Article I, Section 18 "operate[s] as a perpetual bar to the state from the infringement, control, or interference with" the rights of conscience. State ex rel. Weiss v. Dist. Bd. of Sch.-Dist. No. 8 of City of Edgerton, 76 Wis. 177, 210-11, 44 N.W. 967 (1890).

¶ 63. No one could legitimately claim, for example, that the state's compelling interest in prohibiting racial discrimination (and a law narrowly tailored to doing precisely that) would allow the state to adjudicate a race discrimination claim in the selection of a religious leader such as a priest, pastor, rabbi, imam, etc. There is no weighing of the state's interest or examination of whether the law is narrowly tailored to achieve that interest. The state simply has no authority to control or interfere with the selection of spiritual leaders of a religious organization with a religious mission. The text of our constitution states that the state cannot do it — at all. The main inquiry is not how important the right in question is, but whether the law is "controlling" or "interfering with" religious freedom.

¶ 64. By analogy, the Thirteenth Amendment of the U.S. Constitution provides: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." U.S. Const, amend. XIII. We think it inconceivable that one might conclude slavery can exist in the United States as long as the state has a compelling interest. The text is clear— slavery is not allowed.

¶ 65. We do not mean to suggest that anything interfering with a religious organization is totally prohibited. General laws related to building licensing, taxes, social security, and the like are normally acceptable. Similarly, employment discrimination laws applying to employees who are not in positions that are important and closely linked to the religious mission of a religious organization also do not rise to the level of control or interference with the free exercise of religion.

¶ 66. The Wisconsin Constitution, with its specific and expansive language, provides much broader protections for religious liberty than the First Amendment. Miller, 202 Wis. 2d at 64. We need not explore the outer boundaries of those protections here. But it is clear that the Wisconsin Constitution provides at least the protections contained in the First Amendment as outlined earlier in this opinion.

¶ 67. Thus, the state may not interfere with the hiring or firing decisions of religious organizations with a religious mission with respect to employees who are important and closely linked to that mission. These employees are "ministerial." With respect to these ministerial employees, laws such as the WFEA constitute an impermissible effort to control or interfere with the organization's rights of conscience in violation of Article I, Section 18 of the Wisconsin Constitution.²⁸

C. Application to Ostlund

¶ 68. This case is heavily fact-dependent. As such, our treatment of the facts is important to our disposition of the case. As discussed above, we defer to facts found by the agency (in this case, LIRC adopted the ALJ's findings of fact) as long as they are substantially supported by the record. Wis. Stat. § 227.57(6).

¶ 69. However, two caveats are relevant. First, our review is of the entire record. See Wis. Stat. § 227.57(1). We thus consider unrebutted facts in the record so long as they do not conflict with those found by LIRC. Additionally, we will not defer to characterizations of facts found by LIRC, particularly where those characterizations are couched as legal judgments. Here, there are at least two findings of fact that are characterizations or legal judgments. LIRC finding of fact 16 states that the textbooks were not religious and that, except for a Christmas unit, "her instruction in social studies was not primarily religious." However, Ostlund testified that she incorporated (or attempted to incorporate) religious examples and values into everything she taught. Whether or not her teaching of social studies was "primarily religious" is more a characterization or legal judgment than a factual finding to which we owe deference.

¶ 70. LIRC finding of fact 25 similarly states that "religious related activities did not constitute her primary duty." This finding of fact is particularly intriguing in that it uses the language of the primary duties test. To the extent finding of fact 25 purports to answer the question before us, we reject that finding of fact as to its characterization or legal judgment. While it may be that the majority of her duties were teaching "secular" subjects, it does not follow that her "primary duties" were secular for purposes of determining whether the ministerial exception applies.

¶ 71. In our previous analysis, we concluded that the Wisconsin Constitution provides at least the protections guaranteed by the U.S. Constitution. Thus, we proceed under the functional analysis of the ministerial exception as outlined in the First Amendment discussion above. That is, we look to whether Ostlund's position was important and closely linked to the religious mission of a religious organization. We conclude that it was.

¶ 72. Our first inquiry is into the nature and mission of Ostlund's employer — Coulee Catholic Schools. The record is clear that CCS has a religious mission and substantially practices it. CCS is an entity committed to marshalling the resources and expertise of the Catholic schools in the Diocese of La Crosse. CCS is an entity of the Catholic Church itself, subject to the authority of the Bishop of La Crosse, who himself approved certain CCS rules and policies.

¶ 73. CCS is committed to a distinctly Catholic education aimed at a "Christian concept of life." The preamble to the CCS Faculty and Staff Handbook explicitly stated that Catholic school education is an essential part of the Catholic Church's efforts to live out its mission "to proclaim the kingdom of God." Consistent with this mission, Catholic elementary and secondary schools are called "educational ministry." CCS is committed to an "education rooted in the Gospel of Jesus Christ" that "celebrates the development of Gospel faith and identity through sacrament and service." It aims to he a worship-filled educational environment with a faith-centered approach to learning. It is beyond dispute, then, that CCS has a religious mission.

¶ 74. The actual practice of Ostlund's school substantially affirms that CCS gives life to the words of its mission. Teachers made efforts to integrate Catholic values into various aspects of the curricula.²⁹ This

included integrating theological and moral principles into each subject, as well as use of religious example-sand symbols that would not be found in a public school. Students were taught the Catholic faith in a daily religion class, and celebrated Mass weekly. The students also prayed at points throughout the day and celebrated religious holidays. Teachers were required to teach, support, and exemplify Catholic doctrine and morality, and they were to help foster spiritual growth among their students.

¶ 75. In short, CCS member schools are not just public schools with a few supplemental religious extras. CCS was explicitly and intentionally faith-centered, and the record supports that CCS tried to live out its mission.

¶ 76. The second step in our inquiry is an examination of Ostlund's position itself and the degree to which it is important and closely linked to CCS's mission. As a first-grade teacher at St. Patrick's Elementary School, one of the CCS schools, it is obvious that Ostlund's role was of high importance and closely linked to the mission of the school — the inculcation of a Christ-centered concept of life.

¶ 77. The record supports this characterization. Ostlund led prayer with her students, incorporated religious examples, symbols, and stories into other subjects, and helped celebrate school-wide celebrations of religious holidays. Significantly, Ostlund was a catechist for four days per week; that is, she taught Catholic doctrine and practice to her students. Ostlund also took her students to Mass each week, sometimes planning Bible readings and writing prayers for worship services. Ostlund was important and closely linked to the religious mission of CCS with regard to her first-grade students.

¶ 78. Ostlund was required to obtain basic and advanced certifications in religious instruction. This means she was required to and did receive ongoing training and instruction on how to teach the Catholic faith to her students. She further agreed to model and support Catholic teaching. In her job description, which also served as the template for her performance evaluation, her first responsibility was to maintain a "Religious Atmosphere," which required her to "[pjrovide a good Christian model and example," "[ejncourage spiritual growth in students," and "[p]rovide leadership in living and celebrating life and liturgies." Ostlund acknowledged her efforts to incorporate Catholic values and encourage spiritual growth throughout the day, not just in religion class.

¶ 79. The evidence shows that Ostlund's position as a first-grade teacher was important and closely linked to the religiously-infused mission of the school. In particular, her specific obligations to contribute to worship services and teach Catholic doctrine to her students point to her significance in the religious mission of the school. Ostlund was required to perform quintessentially religious tasks as a central part of her job, and her role was an essential part of the Catholic Church's educational ministry to its youth.

¶ 80. In sum, Ostlund was not simply a public school teacher with an added obligation to teach religion. She was an important instrument in a faith-based organization's efforts to pass on its faith to the next generation. The state and federal constitutions do not permit the state to interfere with employment decisions regarding teachers, like Ostlund, who are important and closely linked to the religious mission of CCS.

¶ 81. Our jurisprudential approach and outcome are not novel. Other courts have reached similar results to our holding today.³⁰ Other courts who have considered similar cases have reached the opposite result.³¹

¶ 82. We address two factual counterarguments. First, the lower courts were particularly affected by the fact that Ostlund was not required to be Catholic (a finding adopted by LIRC and binding upon us if, as it is, substantially supported by the record). It may seem, at first blush, counterintuitive to call a position "ministerial" when the person occupying it is not required to be a member of the faith she is ministering. But this ignores the fact that Ostlund was still required to engage in Catholic worship, model Catholic living, and impart Catholic teaching. Thus, though it may be that she was not required to be Catholic (the record is clear, however, that she was a practicing member of the church connected to the school), she was required to live, embody, and teach Catholicism in her role as a teacher consistent with the mission of the school.

¶ 83. Previous courts also pointed to the "secular" teaching materials as important. But as discussed above, Ostlund testified that she made efforts to integrate Catholicism into all her subjects. The fact that she used a secular social studies book does not mean that the social studies class was "secular." Ostlund claims she used religious examples and brought Catholic teaching into all of her subjects.

¶ 84. In our holding today, we are not giving a blanket exception to all religious school teachers. Future cases along these lines will necessarily be very fact-sensitive. But here, the state has no constitutional authority to regulate the hiring and firing decisions of CCS for this first-grade teaching position.³²

¶ 85. Some also might argue that religious organizations should not be accorded deference or special freedoms to which other non-religious but otherwise similarly situated organizations are not entitled. That may or may not be true as a matter of policy, but it is not relevant to our analysis because religious freedom is accorded a special status in both our state and federal constitutions.

¶ 86. The U.S. Constitution is a supermajoritarian document.³³ See generally, John O. McGinnis & Michael B. Rappaport, Our Supermajoritarian Constitution, 80 Tex. L. Rev. 703 (2002). That is, when a supermajority of citizens believes that our framework of government needs to be changed, or that a fundamental right or protection or value is needed, it can be changed. And this change binds future generations, including the acts of future legislatures. As a court, our job is to interpret and apply the law the people adopt, not to make it up in accord with ours or society's current policy preferences.

¶ 87. We recognize that the state has a strong interest in preventing age discrimination in society as a whole. Our opinion today is a determination that Ostlund's role is ministerial and is therefore an expression of CCS's free exercise of religion. This, the people of Wisconsin and the people of the United States have chosen to protect as a fundamental constitutional right. The state's attempted interference with and control of CCS's hiring decisions is prohibited not as a matter of policy, but as a matter of constitutional law.

V CONCLUSION

¶ 88. We conclude that both the Free Exercise Clause of the First Amendment of the United States Constitution and the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution preclude employment discrimination claims under §§ 111.31 to 111.395 of the Wisconsin Fair Employment Act for employees whose positions are important and closely linked to the religious mission of a religious organization. In the case at bar, Ostlund's school was committed to a religious mission — the inculcation of the Catholic faith and worldview — and Ostlund's position was important and closely linked to that mission. Therefore, Ostlund's age discrimination claim under the WFEA unconstitutionally impinges upon her employer's right to religious freedom. Accordingly, we reverse the court of appeals decision and remand to the circuit court to dismiss Ostlund's claim.

By the Court. — The decision by the court of appeals is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

1 Coulee Catholic Schs. v. Labor & Indus. Review Comm'n, Dep't of Workforce Dev., 2008 WI App 68, 312 Wis. 2d 331, 752 N.W.2d 341.

2 During the Christmas season, Ostlund put up a nativity scene, and celebrated Advent with the traditional wreath.

3 May crowning is a day of devotion to Mary when a statue of Mary is ceremonially crowned. See http://campus.udajdon.edu/ mary//meditations/crowned.html. On that day, Ostlund would lead her children in crowning a statue of Mary.

4 During Lent, Ostlund facilitated the giving up of some activity or food (beginning on Ash Wednesday), displayed palms in her class during Holy Week, and had her students collect money for Catholic missions.

5 The last record of her signing was on August 30, 2000.

6 Of the ten teachers who did not receive contract extensions, six were over age 40 and four were under age 40.

7 At the time of her termination, Ostlund had not completed her state teaching certification, though she was working on it. After her termination, all of the remaining teachers at St. Patrick's were certified to teach elementary school.

8 The WFEA prohibits employers from denying employment to individuals on the basis of certain enumerated grounds. Relevant provisions are as follows:

Wis. Stat. § 111.31 Declaration of Policy

(1) The legislature finds that the practice of unfair discrimination in employment against properly qualified individuals by reason of their age, race, creed, color, disability, marital status, sex, national origin, ancestry, sexual orientation, arrest record, conviction record, military service, or use or nonuse of lawful products off the employer's premises during nonworking hours, substantially and adversely affects the general welfare of the state. Employers... that deny employment opportunities and discriminate in employment against properly qualified individuals solely because of their age... deprive those individuals of the earnings that are necessary to maintain a just and decent standard of living.

(2) It is the intent of the legislature to protect by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of age,... and to encourage the full, nondiscriminatory utilization of the productive resources of the state to the benefit of the state, the family, and all the people of the state.

Wis. Stat. § 111.321 Prohibited bases of discrimination.

Subject to ss. 111.33 to 111.36, no employer... may engage in any act of employment discrimination as specified in s. 111.322 against any individual on the basis of age----

Wis. Stat. § 111.322 Discriminatory actions prohibited.

Subject to ss. 111.33 to 111.36, it is an act of employment discrimination to do any of the following:

(1) To refuse to hire, employ, admit or license any individual, to bar or terminate from employment.. . any individual, or to discriminate against any individual in promotion, compensation or in terms, conditions or privileges of employment... because of any basis enumerated in s. 111.321.

9 All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.

10 Wis. Admin. Code § DWD 218.21(1) (April 2004) Petition for review by the Labor and Industry Review Commission.

APPEALS LIMITED TO FINAL DECISION AND ORDERS. Any party may file a written petition for review of a final decision and order of the administrative law judge by the labor and industry review commission. Only final decisions and orders of the administrative law judge may be appealed. A final decision is one that disposes of the entire complaint and leaves no further proceedings on the complaint pending before the division.

11 The Lemon test states that any statute (1) must have a secular purpose, (2) the principal or primary effect of which is neither to advance nor inhibit religion, and (3) which does not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

12 The extent of the Constitution's protection for freedom of religion presents vexing questions made all the more salient by the development of American society on two fronts. First, religious practice in the United States has become exceedingly more diverse than it was at the time of the founding. Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 240-41 (1963) ("[0]ur religious composition makes us a vastly more diverse people than were our forefathers."). General laws are more likely to burden or prohibit aspects of religious practice because of this increasing diversity. Second, government has become significantly more intrusive and more involved in everyday life, including its regulation of churches. See Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1373 (1981) (noting that "secular regiilation of churches has increased substantially in recent years," and discussing the increasing litigation resulting from this trend).

13 Though on first glance it appears problematic, few courts have been troubled by the Supreme Court's decision in Employment Div., Dep't of Human Res. of Oregon v. Smith, which held that there is no individual religious exemption from neutral laws of general applicability. 494 U.S. 872, 877 (1990). It is one thing to say that individuals may not disregard an otherwise neutral criminal law on the grounds that their conscience or religion require them to disobey it. It is quite another thing for the government to adjudicate, for example, an age discrimination claim against a denomination's mandatory retirement age for pastors.

14 McClure was an officer in the Salvation Army, a church, and brought a gender discrimination suit after being discharged. The Fifth Circuit Court of Appeals found that McClure was functionally a minister and that application of Title VII to the Salvation Army under these facts would violate the Free Exercise Clause of the First Amendment. McClure v. Salvation Army, 460 F.2d 553, 558-61 (5th Cir. 1972).

15 The dissent decides that the nomenclature "ministerial exception" is not very precise, opting instead for the phrase "ecclesiastical exception." Dissent, ¶ 89 n.l. One cannot help but note that this departure in terminology from virtually every other case seems intended to make the exception exceedingly narrow.

16 The dissent is very clear to say that a "lay" religious school teacher does not fall within the ministerial exception. See, e.g., dissent, ¶¶ 89, 90, 97, 99, 122. One wonders how the dissent's analysis would change if Ostlund had been a nun instead of a lay teacher. The focus, however, should be on the function of the position, not the title or a categorization of job duties.

17 AU Brown concluded:

Measured by the amount of time Ms. Ostlund spent in nonreligious versus religious activities, or by the number of religious versus non-religious functions contained in her job description and the evaluations of her performance of those functions, Ms. Ostlund's job was not primarily ministerial.

18 LIRC quoted AU Brown's statement in footnote 17 above as part of its own conclusion.

19 The circuit court insisted it was not trying to compartmentalize religion by dismissing the claimed integration of faith and learning in everything. It concluded nonetheless that her primary duties were still to teach secular subjects.

20 The court of appeals found that Ostlund's religious duties "do not constitute the primary part of her work day and they are not the primary focus either of the job description or job evaluation." Coulee Catholic Schs., 312 Wis. 2d 331, ¶ 39.

21 The dissent asserts that we alter the primary duties test. Dissent, ¶ 89. What we have done is reject a version of the primary duties test used by some courts that reduces the inquiry into the ministerial role of an employee to a quantitative analysis and thus misses the bigger picture.

22 The dissent contains numerous statements suggesting, though not stating outright, that we ought to defer to the Wisconsin Court of Appeals opinion in Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995), which outlined a framing of the primary duties test. See, e.g., dissent, ¶ 109. As the dissent knows, our constitutional interpretation, though benefiting from previous courts, is de novo. See Jocz, 196 Wis. 2d at 304. Moreover, this opinion clearly explains why we depart from the framing of the issues outlined in Jocz.

23 CCS argues that courts should defer to the characterization of a position by the organization or church. We believe courts should certainly consider the organization's understanding or characterization of a position, and it is likely that this will provide great insight into the centrality of a position to the organization's mission. The weight of this evidence is for the court to determine, however. We are not persuaded that an organization's characterization should be determinative or, by definition, be accorded greater weight than all other relevant evidence.

24 The clause was amended in 1982 to change gender-specific language to gender-neutral language.

25 In Beño, we discussed a three-step process for interpreting our constitution. The court is to examine:

(1) The plain meaning of the words in the context used;

(2) The historical analysis of the constitutional debates and of what practices were in existence in 1848, which the court may reasonably presume were also known to the framers of the 1848 constitution; and

(3) The earliest interpretation of this section by the legislature as manifested in the first law passed following the adoption of the constitution.

State v. Beno, 116 Wis. 2d 122, 136-37, 341 N.W.2d 668 (1984) (citations omitted). In this case, we see little reason to extend our interpretation beyond the text. And even if we did engage in steps two and three, there is little historical evidence regarding the meaning of this provision in 1848 or shortly thereafter.

26 In 1848, the year the Wisconsin Constitution was adopted, the Pennsylvania Supreme Court decided a case under its constitution, which contained nearly identical language with respect to the rights of conscience as our own. The court there defined the rights of conscience as "simply a right to worship the Supreme Being according to the dictates of the heart; to adopt any creed or hold any opinion whatever, or to support any religion; and to do, or forbear to do, any act for conscience1 sake, the doing or forbearing of which is not prejudicial to the public." Specht v. Commonwealth, 8 Pa. 312, *9 (1848). That is to say, the "rights of conscience" was another way of describing the right to believe and practice one's faith according to one's convictions.

27 When Miller was decided, this was a correct statement of the law applicable to the First Amendment's protection for religious freedom. However, the Supreme Court overturned this as it applies to state laws in City of Boerne v. Flores, 521 U.S. 507 (1997). We still believe, however, that this is the appropriate standard under the Wisconsin Constitution for most laws burdening religious belief.

28 Even if the Supreme Court were to construe the First Amendment in a fashion inconsistent with our application today, our holding that the Wisconsin Constitution provides an independent basis for the ministerial exception's broader application would clearly remain the standard in Wisconsin. This is so because the text warrants it.

29 Based on facts such as this, the dissent argues- that our decision today somehow implicates the constitutionality of the Milwaukee Parental Choice Program ("MPCP"), which this court upheld in Jackson v. Benson, 218 Wis. 2d 835, 578 N.W.2d 602 (1998). Dissent, ¶ 112. This argument is mistaken, reflecting a misreading of this court's decision in Jackson and a failure to apply subsequent Supreme Court precedent that has now settled the matter.

First, we did not malee the facts up in this case. The dissent is troubled not by our reasoning or even our approach to the facts, but by the facts themselves. Indeed, the dissent never challenges the unrebutted evidence from the record that CCS was aiming to integrate the Catholic faith into the whole educational process, and Ostlund testified that she made efforts to do this. These are the facts before us and upon which we must base our decision.

Second, contrary to the dissent's assertions, the opt-out provision played only a minor, inconsequential role in our opinion in Jackson. As the dissent acknowledges but never grapples with, Jackson was decided on the basis of the Establishment Clause of the U.S. Constitution, and the "benefits clause" and "compelled support clause" of Article I, Section 18 of the Wisconsin Constitution (other issues were discussed, but are not relevant here). See Jackson, 218 Wis. 2d at 875-76.

In its analysis under the First Amendment's Establishment Clause, the court in Jackson applied the Lemon test (see supra ¶ 36 and n.ll). See Jackson, 218 Wis. 2d at 856. The main question in the analysis was whether the program had the primary effect of advancing or inhibiting religion. Id. at 858-73. Analyzing Supreme Court precedent, we identified the dual principles of neutrality and indirect aid. Id. at 860. We thus stated the rule as follows:

[Sítate educational assistance programs do not have the primary effect of advancing religion if those programs provide public aid to both sectarian and nonsectarian institutions (1) on the basis of neutral, secular criteria that neither favor nor disfavor religion; and (2) only as a result of numerous private choices of the individual parents of school age children.

Id. at 869. The analysis was straightforward based on these criteria. The MPCP was neutral and offered aid to religious schools only through individual parental choice. Id. at 872-73.

We further stated that the program did not create excessive government entanglement with religion merely because the state would have some minimal oversight, auditing, health, and other such obligations. Id. at 874.

It is true that the opt-out provision was mentioned in the analysis, but this needs to be placed in perspective. The Establishment Clause analysis in Jackson is contained in ¶¶ 20-52 and pages 853-76 of the official Wisconsin Reports. In 33 paragraphs covering 24 pages of analysis under the U.S. Constitution, the court mentioned the opt-out provision exactly one time in one sentence. The opt-out clause was a factor, but merely a negligible one in the court's analysis.

Our analysis of the benefits clause of the Wisconsin Constitution queried whether the MPCP had the principal or primary effect of advancing religion. Id. at 878. Employing the same analysis as under the Establishment Clause, namely, the neutrality and indirect aid principles, we concluded that the MPCP did not violate the benefits clause of the Wisconsin Constitution. See id. at 876-82. The opt-out provision which so preoccupies the dissent, was not mentioned at all in the 10 paragraphs and 7 pages of this analysis in the Wisconsin Reports.

Finally, the Jackson court determined that the provision did not violate the compelled support clause of the Wisconsin Constitution. The court did reference the opt-out provision as relevant to this analysis, but it seems clear that the program compels no child to attend or participate in religious classes or activities unless the parent chooses to send them to that religious school. See id. at 883.

Even so, the MPCP was not upheld because the court concluded that religious schools are not really all that religious anyway. There is no evidence that the integration of religious values into classes and school life was unknown to the court, or conversely, that the court considered the opt-out provision sufficient to keep all religious influences away from participating children.

Possibly the most confusing aspect of the dissent's discussion on this point is that it completely ignores Supreme Court precedent that has since settled this issue. In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the Supreme Court considered the constitutionality of Cleveland's school voucher program. There is no evidence that Cleveland's program had a similar opt-out provision. Yet, the Supreme Court took the same approach as this court did in Jackson, idéntifying the two governing principles as neutrality and private choice, and found that the Cleveland program was neutral and a program of true private choice, and thus did not violate the Establishment Clause. Zelman, 536 U.S. at 662-63. Therefore, even if the dissenters are not comfortable with a school choice program that does not completely insulate children in religious schools from religion, the Supreme Court has spoken: There is no Establishment Clause violation.

30 In addition to those discussed in supra ¶¶ 50-54, see, e.g., EEOC v. Hosanna-Tabor Evangelical Lutheran Church & Sch., 582 F. Supp. 2d 881 (E.D. Mich. 2008) (holding that the ministerial exception applied to a kindergarten teacher who taught at a Lutheran school offering a "Christ-centered education" and where she received the title of "commissioned minister" from the Lutheran Church — Missouri Synod, even though she did not need to be Lutheran and the teacher's religious-oriented tasks took up only about 45 minutes of her 7 hour day); Stately v. Indian Cmty. Sch. of Milwaukee, Inc., 351 F. Supp. 2d 858, 868 (E.D. Wis. 2004) (holding that the ministerial exception applied to an elementary school teacher because the school required the teacher to integrate Native American culture and religion into her classes, she participated in and sometimes led the school's religious ceremonies and cultural activities, and she helped develop her students spiritually); Porth v. Roman Catholic Diocese of Kalamazoo, 532 N.W.2d 195 (Mich. Ct. App. 1995) (holding that an elementary school teacher's discrimination claims were barred by the First Amendment, and even though the balance of her duties was teaching secular subjects, the teacher's overall duties were "inexorably intertwined with the primary function of defendants' school, which is the education of its students consistent with the Catholic faith").

31 See, e.g., DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993) (holding that the ministerial exception did not apply to a lay teacher who brought an ADEA action against a parochial school even though the teacher performed some religious duties, including leading his students in prayers and taking them to Mass); Redhead v. Conference of Seventh-day Adventists, 440 F. Supp. 2d 211 (E.D.N.Y. 2006) (holding that the ministerial exception did not apply to an elementary school teacher who taught primarily secular subjects but also taught religion for an hour a day and attended religious ceremonies with students once per year); Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp. 2d 849 (S.D. Ind. 1998) (holding that the ministerial exception did not apply to a teacher at a Catholic elementary school because teachers at this school were not required to be Catholic, the vast majority of classes she taught were secular, and she did not lead worship services); EEOC v. Tree of Life Christian Schs., 751 F. Supp. 700 (S.D. Ohio 1990) (holding that the ministerial exception did not apply to parochial school teachers and administrators).

32 Ostlund also argues that even if she is held to be a ministerial employee, LIRC may nonetheless hear the claim because CCS does not assert that Ostlund was terminated for religious reasons. We disagree. Ostlund mistakenly assumes that the only constitutional right at stake is non-establishment of religion, whereby the state must make a decision as to the theological views of a church. This, as we have explained, is the wrong question. Therefore, Ostlund may not pursue her claim under the WFEA. See Rayburn v. Gen. Conference of Seventh-day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985) (holding that the role of the employee, not the reason for the employee's dismissal, is the operative question). As the court in Rayburn stated, "In these sensitive areas, the state may no more require a minimum basis in doctrinal reasoning [for the dismissal] than it may supervise doctrinal content." Id.

33 The Wisconsin Constitution can be amended either by a constitutional convention, which has never been used, or by majority votes in each house of the legislature in two consecutive legislatures followed by a majority vote of the electorate. Wisconsin Const, art. XII.