DeBruin v. St. Patrick Congregation

2012 WI 94, 816 N.W.2d 878, 343 Wis. 2d 83, 2012 WL 2849271, 2012 Wisc. LEXIS 383, 162 Lab. Cas. (CCH) 61,268

• Court: Wisconsin Supreme Court
• Decided: July 12, 2012
• Docket: No. 2010AP2705
• Status: Published

Opinions

PATIENCE DRAKE ROGGENSACK, J.

¶ 1. This is an appeal from a decision of the Circuit Court for Walworth County¹ that the court of appeals has certifled to us pursuant to Wis. Stat. § 809.61 (2009-10).² We are asked to decide whether, under the First Amendment of the United States Constitution and Article I, Section 18 of the Wisconsin Constitution, Kathleen DeBruin's complaint against St. Patrick Congregation (St. Patrick), alleging that her employment was terminated for an improper reason, states a claim upon which relief may be granted. We conclude that it does not. Permitting the continuation of this type of breach of contract or promissory estoppel claim by a ministerial employee,³ who seeks payment based on an allegedly improper reason for being terminated from her employment, would impermissibly interfere in a religious institution's choice of ministerial employees, in violation of the First Amendment of the United States Constitution and Article I, Section 18 of the Wisconsin Constitution.

¶ 2. Therefore, a court may not review whether St. Patrick improperly terminated its ministerial employee because St. Patrick's choice of who shall serve as its ministerial employee is a matter of church governance protected from state interference by the First Amendment and by Article I, Section 18. Accordingly, DeBruin's complaint, which would require a state court to evaluate why St. Patrick terminated its ministerial employee, fails to state a claim upon which a court may grant relief. Therefore, the circuit court correctly dismissed DeBruin's complaint, and its decision is affirmed.⁴

I. BACKGROUND

¶ 3. St. Patrick is a Catholic church in the Archdiocese of Milwaukee. DeBruin began working for St. Patrick in August 2002. On July 1, 2009, St. Patrick entered into a written, one-year employment contract with DeBruin as the Director of Faith Formation. The contract described DeBruin's duties, the annual salary and fringe benefits to which DeBruin would be entitled, the term of the contract, the facilities to which DeBruin would have access as Director of Faith Formation, and the procedures for employee evaluation and annual contract renewal. Additionally, the contract included provisions governing termination of the employment relationship. Relevant to this appeal, the contract provided:

The PARISH agrees that the DIRECTOR OF FAITH FORMATION shall not be discharged during the term of this contract, without good and sufficient cause, which shall be determined by the PARISH. The PARISH agrees that the Pastor of the PARISH will be responsible for giving the employee notice of any dissatisfaction with service or conduct. Dismissal may be immediate or within a time frame determined by the PARISH.

¶ 4. On October 5, 2009, St. Patrick terminated DeBruin's employment. It is undisputed that DeBruin is a ministerial employee.⁵ It is also undisputed that St. Patrick has paid DeBruin for all of the services she rendered prior to her termination.

¶ 5. In early December 2009, DeBruin filed this lawsuit against St. Patrick. She alleges breach of contract, asserting that St. Patrick terminated her employment "without good and sufficient cause as that term is defined by the Contract of Employment," and promissory estoppel, based on the same assertion. She seeks payment of $34,150.27, plus interest on that amount. DeBruin asserts that this amount constitutes damages for the period between October 5, 2009, when her employment was terminated, and June 30, 2010, the end of the term of the written contract. Therefore, the damages DeBruin now seeks comprise payments for salary that would have been due if St. Patrick had retained her employment through the full term of the contract.

¶ 6. St. Patrick did not move to dismiss DeBruin's complaint on the basis that St. Patrick terminated DeBruin for "good and sufficient cause" within the meaning of the employment contract. Instead, relying on our decision in Coulee Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, St. Patrick moved to dismiss DeBruin's complaint for failure to state a claim upon which relief may be granted, pursuant to Wis. Stat. § 802.06(2)(a)6. St. Patrick asserted that both the First Amendment of the United States Constitution and Article I, Section 18 of the Wisconsin Constitution preclude DeBruin, as a ministerial employee, from obtaining court enforcement of her claims of breach of contract or promissory estoppel based on the allegation that St. Patrick terminated her employment for an improper reason.

¶ 7. At the hearing on St. Patrick's motion to dismiss, St. Patrick argued that, under Coulee, the court could not review St. Patrick's decision to terminate DeBruin. Specifically, St. Patrick noted that DeBruin conceded that she was a ministerial employee and that St. Patrick is a religious institution. With these two concessions, St. Patrick argued that, under Coulee, state court review of St. Patrick's reason for terminating DeBruin would constitute impermissible interference with St. Patrick's religious mission, in violation of the First Amendment and Article I, Section 18.

¶ 8. DeBruin responded by arguing that Coulee was inapposite in the context of her complaint, because the state antidiscrimination law at issue in Coulee was distinguishable from the neutral principles of law governing contracts and promissory estoppel that would be applied in this dispute. DeBruin claimed that applying such neutral principles of law would not constitute impermissible government action because the court could examine DeBruin's complaint and determine the truth or falsity of her allegations without interfering with the religious institution's mission. Therefore, notwithstanding DeBruin's concessions that she satisfied both parts of the Coulee ministerial employee inquiry, she argued that her complaint could go forward.

¶ 9. After hearing arguments on St. Patrick's motion, the circuit court dismissed DeBruin's complaint. The court agreed with St. Patrick that because St. Patrick is a religious institution and because DeBruin was a ministerial employee, pursuant to our decision in Coulee, DeBruin's complaint failed to state a claim upon which relief could be granted. DeBruin appealed, and the court of appeals certified the matter to us. We accepted the certification.

II. DISCUSSION

A. Standard of Review

¶ 10. We independently review as a question of law whether a complaint states a cognizable claim. John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, ¶ 12, 303 Wis. 2d 34, 734 N.W.2d 827. We also independently review St. Patrick's assertion that the First Amendment of the United States Constitution and Article I, Section 18 of the Wisconsin Constitution require dismissal of DeBruin's claims. See Jackson v. Benson, 218 Wis. 2d 835, 852-53, 578 N.W.2d 602 (1998).

B. Failure to State a Claim

¶ 11. St. Patrick's motion to dismiss DeBruin's complaint was granted at the pleading stage. Such a motion tests the legal sufficiency of the complaint. John Doe 1, 303 Wis. 2d 34, ¶ 12. For purposes of the motion, we accept as true all facts well-pleaded in the complaint and the reasonable inferences therefrom. Kaloti Enters., Inc. v. Kellogg Sales Co., 2005 WI 111, ¶ 11, 283 Wis. 2d 555, 699 N.W.2d 205. We will dismiss a complaint if it states no legal claim upon which relief can be granted. Id.

¶ 12. St. Patrick asserts that the First Amendment and Article I, Section 18 preclude court review of its reason for terminating DeBruin's employment. Therefore, a court must review the complaint, which incorporates and attaches a copy of DeBruin's employment contract, in light of the effect of the First Amendment and Article I, Section 18 on St. Patrick's decision to terminate DeBruin's employment.

1. First Amendment

¶ 13. The First Amendment of the United States Constitution provides in relevant part: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." U.S. Const, amend. I. The First Amendment is made applicable to the states by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). First Amendment protections are afforded to institutions, as well as to individuals. Coulee, 320 Wis. 2d 275, ¶ 38.

¶ 14. The Fourteenth Amendment does not apply the First Amendment to purely private conduct. Rather, it is when state action infringes on constitutionally protected rights that the Fourteenth Amendment comes into play. See Shelley v. Kraemer, 334 U.S. 1, 13 (1948). Shelley arose in the context of an equal protection challenge to state court enforcement of a private, racially discriminatory restrictive covenant. Id. at 4-8. Nonetheless, the constitutional principles that underlie Shelley are analogous to other constitutional protections, including those afforded by the First Amendment.

¶ 15. To explain further, Shelley did not begin with governmental action; but rather, it began as racial discrimination in a restrictive covenant, i.e., in a private contract. Kraemer, who was Caucasian and a party to the covenant, sought to enforce the covenant against Shelley, who was African-American and had purchased the property encumbered by the covenant. Id. at 4-6. The participation of the State did not become an issue until Kraemer sought court enforcement of the restrictive covenant. Id. at 13. The Court explained that, "restrictions on the right of occupancy of the sort sought to be created by the private agreements . . . could not be squared with the requirements of the Fourteenth Amendment if imposed by state statute or local ordinance." Id. at 11. However, the court also explained that "[s]o long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State." Id. at 13.

¶ 16. There was more than voluntary adherence to a private agreement in Shelley. Instead, a party to the discriminatory restrictive covenant sought enforcement in state court, thereby asking the State to participate in the discrimination. Id. With the extra step of judicial intervention, the Supreme Court concluded that judicial intervention constituted state action. Id. at 14.

¶ 17. In reasoning that court enforcement of a private discriminatory contract constituted state action, the Court said, "[t]hat the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court." Id. at 14. The Court pointed out that it was "clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint." Id. at 19. Accordingly, Shelley concluded that when constitutionally protected rights were at issue and a contravention of those rights could not be accomplished without state action, court enforcement constituted state action of the type that was proscribed by the Fourteenth Amendment. Id.

¶ 18. So, too, in the case before us, DeBruin seeks state court enforcement of a provision in a private contract in order to invalidate St. Patrick's reason for terminating her employment. However, the First Amendment grants religious institutions " 'independence from secular control or manipulation — in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'" Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. _, 132 S. Ct. 694, 712 (2012) (Alito, J., concurring) (quoting Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church in N. Am., 344 U.S. 94, 116 (1952)). Therefore, DeBruin asks the state courts to engage in activity that the Constitution prohibits.

¶ 19. In Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. 696 (1976), the Supreme Court reviewed state court action in the context of a religious institution's termination of one of its ministers. In Serbian Eastern Orthodox Diocese, the Holy Synod of Bishops, the Church's highest governing body, applied church rules to defrock a church bishop, Dionisije Milivojevich. Id. at 699, 705-07. Milivojevich brought suit in state court, seeking, among other claims, "to have himself declared the true Diocesan Bishop." Id. at 707. The Illinois Supreme Court held that Milivojevich's removal as bishop was "arbitrary," and therefore, the court set it aside. Id. at 708.

¶ 20. In reversing the Illinois Supreme Court, the United States Supreme Court explained that "[t]he fallacy fatal to the judgment of the Illinois Supreme Court is that it rests upon an impermissible rejection of the decisions of the highest ecclesiastical tribunals . . . and impermissibly substitutes its own inquiry into church polity." Id. The Court explained:

For civil courts to analyze whether the ecclesiastical actions of a church judicatory are in that sense "arbitrary" must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly requires the church judicatory to follow, or else into the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits; recognition of such an exception would undermine the general rule that religious controversies are not the proper subject of civil court inquiry, and that a civil court must accept the ecclesiastical decisions of church tribunals as it finds them.

Id. at 713. Accordingly, church decisions in matters of faith and ministry are so fundamental to the free exercise of religious liberty that civil courts are prohibited from delving into the reasons for religion-based decisions.⁶ Id.

¶ 21. Although the opinion does not cite Shelley, Serbian Eastern Orthodox Diocese is consistent with Shelley because, like Shelley, Serbian Eastern Orthodox Diocese involved state court adjudication of privately created rights. Specifically, in Serbian Eastern Orthodox Diocese, the complainant asked the courts to evaluate the Holy Synod's application of church rules to the ecclesiastical decision about whether to defrock a bishop. See id. at 708. No state or federal statute was involved in or cited by the Supreme Court in Serbian Eastern Orthodox Diocese.

¶ 22. Included within the decisions protected by the First Amendment are the hiring and firing of ministerial employees, regardless of the motivation behind those decisions. Young v. N. Ill. Conference of United Methodist Church, 21 F.3d 184, 186 (7th Cir. 1994); see also Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985). Accordingly, religious institutions may make arbitrary decisions regarding hiring or firing of ministerial employees and nevertheless be free from civil review for having done so. Serbian Eastern Orthodox Diocese, 426 U.S. at 708-09; Young, 21 F.3d at 187.

¶ 23. It has been universally recognized that the First Amendment protects religious institutions' decisions about whom to hire as ministerial employees and when to terminate their employment. Coulee, 320 Wis. 2d 275, ¶ 39. Accordingly, a terminated ministerial employee's complaint alleging that her religious institution employer terminated her for an improper reason is not viewed through the lens that we usually apply when examining the legal sufficiency of a complaint. See Hosanna-Tabor, 132 S. Ct. at 706. Rather, the allegations in the complaint are viewed in the context of the First Amendment's proscriptions against state interference with religious institutions' choices of who shall be the voice of their faith. Id. at 706-08. As Justice Alito explained in Hosanna-Tabor, "Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance." Id. at 712 (Alito, J., concurring).

¶ 24. When a ministerial employee is terminated, the religious institution's decision about who shall teach its faith and how that shall be done are intertwined with the decision to terminate the employee. Courts can have no role in affirming or overturning such a decision based on the reason why the religious institution terminated the employment. As the United States Supreme Court has explained:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.

Id. at 706. We voiced the same concept in Coulee when we explained, "the real heart of the ministerial exception ... is preventing the state from intruding into the mission of religious organizations or houses of worship." Coulee, 320 Wis. 2d 275, ¶ 55.

2. DeBruin's complaint

¶ 25. Turning to DeBruin's complaint, she seeks court participation in enforcing a private contract against St. Patrick, as Kraemer did against Shelley. See Shelley, 334 U.S. at 4-6. DeBruin seeks money damages from St. Patrick, alleging that St. Patrick terminated her employment for an improper reason. She alleges that her contract with St. Patrick limited the reasons for which St. Patrick could terminate her employment to "good and sufficient cause," and that her termination was not done within that contractual limitation. As we review her complaint, we note that DeBruin is not seeking payment for services she has already provided.⁷

¶ 26. It is important to a proper First Amendment analysis of DeBruin's complaint to focus on the nature of the protections that are afforded to religious institutions and why they are afforded. To examine whether St. Patrick could enter into a contract with DeBruin and how that contract may be interpreted, frames the issue too broadly and is not required by the issue presented in this case.⁸ Furthermore, beginning with a contract analysis would cause a court to diminish the priority given to the policies that drive the First Amendment and would lead a court to err.

¶ 27. The First Amendment grants St. Patrick free choice in deciding that a ministerial employee should be terminated because it is that type of employee "who will preach [religious institutions'] beliefs, teach their faith, and carry out their mission." Hosanna-Tabor, 132 S. Ct. at 710. As the Supreme Court has explained, when a ministerial employee sues her religious employer to contest the validity of the reason for which she was fired, "the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way." Id. (Emphasis added.) Stated otherwise, the First Amendment restrains the State from invalidating the institution's reasons that underlie its choice.

¶ 28. St. Patrick fired DeBruin, a ministerial employee. If DeBruin were not a ministerial employee and made the same claim, we might interpret the contract and consider whether St. Patrick had "good and sufficient cause" for DeBruin's termination. However, the First Amendment gives St. Patrick the absolute right to terminate DeBruin for any reason, or for no reason, as it freely exercises its religious views. It is the decision itself, i.e., who shall be the voice of St. Patrick, that affects the faith and mission of the church. Serbian Eastern Orthodox Diocese, 426 U.S. at 713; Young, 21 F.3d at 186-87; Rayburn, 772 F.2d at 1169.

¶ 29. The dissent relies on Petruska v. Gannon University, 462 F.3d 294 (3d Cir. 2006), to support its decision not to dismiss DeBruin's contract claim.⁹ Petruska claimed that reducing her pastoral responsibilities was a breach of her contract with Gannon University. Id. at 310. At one point, the court acknowledged that if judicial review of the contract claim entailed "ecclesiastical inquiry," the claim could not proceed. Id. at 312. However, any inquiry into the validity of a religious institution's reasons for the firing of a ministerial employee will involve consideration of ecclesiastical decision-making. See Combs v. Cent. Tex. Annual Conference of the United Methodist Church, 173 F.3d 343, 350 (5th Cir. 1999) (stating that "we cannot conceive how the federal judiciary could determine whether an employment decision concerning a minister was based on legitimate or illegitimate grounds without inserting ourselves into a realm where the Constitution forbids us to tread, the internal management of a church").

¶ 30. Accordingly, a court cannot interpret DeBruin's contract with St. Patrick to determine whether St. Patrick had "good and sufficient cause" to terminate DeBruin because in so doing, the court would infringe upon St. Patrick's First Amendment right to freely exercise its religious preferences and thereby be the sole decision-maker about who will preach its beliefs, teach its faith and carry out its mission. As the United States Supreme Court has explained:

By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

Hosanna-Tabor, 132 S. Ct. at 706.

¶ 31. Where a plaintiff alleges that her termination was based on an improper reason, it does not matter whether she seeks damages based on a contract theory or a statutory theory. In either case, the State is effectively enjoined by the First Amendment from interfering with the religious institution's right to choose its own ministers. Serbian Eastern Orthodox Diocese, 426 U.S. at 708-09. The Free Exercise Clause of the First Amendment guarantees religious freedom from the State's imposition of an unwanted minister on a religious institution. Hosanna-Tabor, 132 S. Ct. at 710.

¶ 32. Stated otherwise, if DeBruin's claim is not dismissed, a court will be required to decide whether St. Patrick terminated DeBruin without "good and sufficient cause," within the meaning of those terms in the contract. A court may then bring to bear legal concepts relative to contract interpretation and performance, such as whether St. Patrick proceeded in good faith when it terminated DeBruin. See Chayka v. Santini, 47 Wis. 2d 102, 107 n.7, 176 N.W.2d 561 (1970) (explaining that every contract includes the obligation of good faith and fair dealing between the parties). Questioning St. Patrick's good faith will permit a challenge to its reasons for terminating DeBruin. The First Amendment does not permit the State to interfere with St. Patrick's free exercise of the choice of religious minister for its religious beliefs. Hosanna-Tabor, 132 S. Ct. at 707.

¶ 33. Furthermore, if a court were to award damages on DeBruin's claim, which does not relate to services she has already provided, St. Patrick would be required, by the State, to pay for its decision to terminate an unwanted ministerial employee. See id. at 709. This, the First Amendment does not permit. See id. As the United States Supreme Court has said, "[a]n award of such relief would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination." See id.

¶ 34. Furthermore, while Hosanna-Tabor did not arise in a contract context, which the Supreme Court noted, id. at 710, the First Amendment protections that drove the result in Hosanna-Tabor are the same protections that bear on DeBruin's claim for damages to compensate her for the denial of prospective employment. In addition, Serbian Eastern Orthodox Diocese, which did not arise in a discrimination claim context, and is based on the Free Exercise Clause, employs discussions of state limitations that are very similar to Hosanna-Tabor and support St. Patrick's position.

¶ 35. Accordingly, we conclude that DeBruin's complaint, viewed through a First Amendment lens, fails to state a claim upon which a court may grant relief. Stated otherwise, the State is effectively enjoined by the First Amendment from interference with such ecclesiastical decisions.

3. Article I, Section 18

¶ 36. Article I, Section 18 of the Wisconsin Constitution provides in relevant part: "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. . . ." Wis. Const, art. I, § 18. Article I, Section 18 applies to religious institutions, as well as to individuals. Coulee, 320 Wis. 2d 275, ¶ 58.

¶ 37. We have concluded that Article I, Section 18 serves similar purposes in regard to protecting religious freedoms as do the Establishment Clause and the Free Exercise Clause of the First Amendment. Id., ¶ 60 (citing State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 332, 198 N.W.2d 650 (1972)). Given the expansive language employed in Article I, Section 18, the protections afforded religious liberties therein are at least as broad as those afforded by the First Amendment. Id., ¶ 66. More specifically, we have concluded that Article I, Section 18 precludes state interference with religious organizations' hiring and firing of ministerial employees. Id., ¶ 67. Accordingly, we conclude that Article I, Section 18 provides an additional basis, independent of the First Amendment, for dismissing DeBruin's complaint.

III. CONCLUSION

¶ 38. Permitting the continuation of this type of breach of contract or promissory estoppel claim by a ministerial employee, who seeks payment based on an allegedly improper reason for being terminated from her employment, would impermissibly interfere in a religious institution's choice of ministerial employee, in violation of the First Amendment of the United States Constitution and Article I, Section 18 of the Wisconsin Constitution.

¶ 39. Therefore, a court may not review whether St. Patrick improperly terminated its ministerial employee because St. Patrick's choice of who shall serve as its ministerial employee is a matter of church governance protected from state interference by the First Amendment and by Article I, Section 18. Accordingly, DeBruin's complaint, which would require a court to evaluate why St. Patrick terminated its ministerial employee, fails to state a claim upon which a court may grant relief. Therefore, the circuit court correctly dismissed DeBruin's complaint, and its decision is affirmed.¹⁰

By the Court. — The judgment of the circuit court is affirmed.

1 The Honorable John R. Race presided.

2 All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.

3 The term "ministerial employee" refers to a certain type of employee of a religious institution whose work is fundamentally tied to the institution's religious mission. See Coulee Catholic Sch. v. LIRC, 2009 WI 88, ¶¶ 41-49, 320 Wis. 2d 275, 768 N.W.2d 868. As discussed below, it is undisputed that DeBruin was a ministerial employee.

4 Five justices affirm the judgment of the circuit court. Three justices, Justice Patience Drake Roggensack, Justice Annette Kingsland Ziegler and Justice Michael J. Gableman, join this lead opinion. Two justices, Justice N. Patrick Crooks and Justice David T. Prosser, base their decisions on the specific contract at issue in this case.

5 Unlike in Coulee, 320 Wis. 2d 275, ¶¶ 68-87, where there was a dispute between the parties about whether the teacher was a ministerial employee, here, DeBruin concedes that her status was that of a ministerial employee.

6 The dissent asserts that this opinion conflates the Free Exercise Clause and the Establishment Clause in its First Amendment analysis. See, e.g., dissent, ¶ 135. In particular, the dissent cites the use of Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. 696 (1976), as an example of such conflation, claiming that case is "a classic Establishment Clause case." Dissent, ¶ 136 n.ll. However, the dissent is mistaken; Serbian Eastern Orthodox Diocese is a Free Exercise case. This interpretation is shared by the following opinions, all of which cite Serbian Eastern Orthodox Diocese as a Free Exercise case: Petruska v. Gannon University, 462 F.3d 294, 306 (3d Cir. 2006); Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354, 1359-60 (D.C. Cir. 1990); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1167-68 (4th Cir. 1985).

The dissent attempts to set aside the conclusions of Petruska, Rayburn and Minker that cite Serbian Eastern Orthodox Diocese as support for discussion of the Free Exercise Clause of the First Amendment. Dissent, ¶ 136 n.ll. It does so by quoting articles that generally discuss First Amendment cases without analyzing a case or controversy as court decisions do. Id. Scholarly discussions are always of interest, but they do not address First Amendment principles in the context of a case or controversy, as judicial opinions do.

7 Were DeBruin seeking contract damages for past services provided, her claim would be much like the corner grocer who delivers food to a parish, sends a bill and remains unpaid for that which he has provided. Court adjudication of that type of breach of contract claim would not run afoul of the First Amendment because it would not require a court to examine the ecclesiastical decision to terminate a ministerial employee.

8 We acknowledge there are matters for which a religious institution may contract that would be appropriate to enforce in the courts. See, e.g., Jones v. Wolf, 443 U.S. 595, 602-04 (1979) (concluding that courts may dispose of cases involving property belonging to religious institutions on the basis of "neutral principles of law" if the judicial inquiry can be conducted in exclusively secular terms). However, the Jones approach has never been employed in cases where a minister was terminated. Furthermore, Hosanna-Tabor reaffirmed that the "neutral principles" language from Jones applies to the "regulation of only outward physical acts," not to "government interference with an internal church decision that affects the faith and mission of the church itself." Hosanna-Tabor, 132 S. Ct. at 707. That conclusion is consistent with Coulee, which concluded that the plaintiffs claim was barred despite the contention that neutral and generally applicable employment laws could have settled the dispute. Coulee, 320 Wis. 2d 275, ¶¶ 3, 39 n.13.

9 Dissent, ¶ 122.

10 Some cases imply that a religious institution may waive its right to challenge civil court determinations of disputes for which the First Amendment would otherwise preclude judicial intervention. See Alicea v. New Brunswick Theological Seminary, 608 A.2d 218, 224 (N.J. 1992). Although waiver is not at issue here, it is important to note that both the Establishment Clause and the Free Exercise Clause of the First Amendment encompass societal interests as well as personal protections.