Van Osdol v. Vogt

908 P.2d 1122, 20 Brief Times Rptr. 18, 1996 Colo. LEXIS 8, 68 Empl. Prac. Dec. (CCH) 44,104, 69 Fair Empl. Prac. Cas. (BNA) 1480, 1996 WL 14527

• Court: Supreme Court of Colorado
• Decided: January 16, 1996
• Docket: 94SC646
• Status: Published

Opinions

Justice KOURLIS

delivered the Opinion of the Court.

Petitioner Holley E. Van Osdol challenges the dismissal of her retaliation claim under Title VII, 42 U.S.C.2000e-3 (1988 & Supp. V 1993), and certain of her intentional tort claims against the respondents Hugh Frederick Vogt, Mile Hi Church of Religious Science, and the United Churches of Religious Science. The trial court found that the claims were precluded by the First Amendment to the United States Constitution and dismissed them under C.R.C.P. 12(b)(1) and (5). The court of appeals upheld the dismissal of the claims. We affirm and remand with directions.

I.

Hugh Frederick Vogt was a past president of the United Churches of Religious Science (UCRS) and a past member of the governing body of UCRS, known as the Ecclesiastical Committee. He was a senior minister at the Mile Hi Church of Religious Science (Mile Hi), and had a television ministry that aired throughout Colorado.

From 1968 to 1975, when Van Osdol was a child, she lived with her mother and Vogt. At that time, Vogt was married to her mother and was her stepfather. Van Osdol alleges that for years during her childhood, Vogt subjected her to sexual abuse. Van Osdol claimed the sexual abuse ended in 1975 when Van Osdol, then seventeen, moved out of her mother’s home.

Some sixteen years later, in 1991, Van Osdol was serving as a minister for UCRS in Washington state. She moved to Denver and in early 1992 submitted a proposal to the Ecclesiastical Committee to open a new Church of Religious Science in southern metropolitan Denver. In May of 1992, the Ecclesiastical Committee informed Van Osdol that they had approved her plans to open the new church and granted her a novitiate minister license in Colorado.

In June of 1992, Van Osdol informed the Ecclesiastical Committee that Vogt had sexually abused her as a child, and that she believed he had sexually harassed a parishioner and several UCRS employees. She requested the Committee’s assistance in convincing Vogt that he should pay for her therapeutic treatment, and threatened to publicize her allegations if Vogt did not agree to pay for her therapy.

Vogt responded to Van Osdol’s charges with a letter to UCRS’ President and Chief Operating Officer denying the charges of sexual abuse and asking the church to begin an investigation of the matter.

In August of 1992, the Ecclesiastical Committee voted to revoke Van Osdol’s novitiate minister license and rescind the decision to allow her to open a new church. They notified her of that decision by letter dated September 15,1992.

Van Osdol brought this action against Vogt, Mile Hi, and UCRS in 1993¹ alleging the following thirteen claims: (1) illegal retaliation by UCRS in violation of 42 U.S.C. § 2000e-3 (1988 & Supp. V. 1993) (Title VII); (2) breach of fiduciary duty by UCRS and Mile Hi; (3) interference with prospective economic advantage by UCRS, Mile Hi, and Vogt; (4) intentional interférenee with contract by Vogt and Mile Hi; (5) breach of contract by UCRS; (6) promissory estoppel against UCRS; (7) .battery against Vogt; (8) assault against Vogt; (9) outrageous conduct against Vogt; (10) breach of fiduciary duty by a person in a position of trust against Vogt; (11) negligent hiring against Mile Hi and UCRS; .(12) negligent supervision against Mile Hi and UCRS; and (13) negligent retention of Vogt by Mile Hi and UCRS. The relief she requested included compensatory and punitive damages, back pay, and future pay in lieu of reinstatement.²

The trial court denied motions to dismiss on the following six claims: breach of contract by UCRS, promissory estoppel against UCRS, battery against Vogt, assault against Vogt, outrageous conduct against Vogt, and breach of fiduciary duty by a person in a position of trust against Vogt. However, the court granted dismissal on the remaining seven claims, finding them barred by the First Amendment. The trial court granted C.R.C.P. 54(b) certification as to all claims here at issue. Van Osdol appealed the dismissal to the court of appeals, which affirmed the decision of the trial court. Van Osdol v. Vogt, 892 P.2d 402 (Colo.App.1994). On cer-tiorari review before this court, Van Osdol challenges only the dismissal of claims one through four.

II.

We granted certiorari on the following two issues: (1) whether the First Amendment precludes a court from exercising jurisdiction over a minister’s tort and Title VII claims against her church and another minister, and (2) whether the “fraud” and “collusion” exceptions to the First Amendment defense are viable claims when a minister is discharged in retaliation for reporting the misconduct of another minister. We hold that the First Amendment precludes our jurisdiction over Van Osdol’s Title VII and intentional tort claims and that no fraud and collusion exception to the First Amendment bar exists under these circumstances.

III.

This case involves a conflict between Title VII and the First Amendment. Title VII, 42 U.S.C. §§ 2000e to 2000e-17 (1988 & Supp. V 1993), is the centerpiece of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees or job applicants with respect to hiring and discharge decisions, or the compensation, terms, conditions, and privileges of employment, based upon the employee/applicant’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(l). Under Title VII, sexual harassment is considered sexual discrimination. Therefore, 42 U.S.C. § 2000e-3 prohibits an employer from retaliating against an employee for reporting or opposing employment practices made illegal under Title VII, including sexual harassment.

Section 702, 42 U.S.C. § 2000e-l, exempts religious corporations, associations, educational institutions, or societies from the requirements of Title VII in the limited area of religious discrimination³ such that a religious organization is permitted to make hiring and discharge decisions on the basis of an employee/applicant’s religious affiliation.⁴

Van Osdol claims that UCRS violated Title VII when it revoked her license and rescinded the decision to allow her to open a new Church of Religious Science. She claims that this constituted illegal retaliation for her report that Vogt had committed sexual harassment. Absent some countervailing bar, such retaliation by an employer would, if proven, be contrary to the provisions of Title VII.

IV.

The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....”⁵ These words are the source of the Constitution’s two branches of religious protection: the Free Exercise Clause and the Establishment Clause. The First Amendment’s guarantee of religious protection is made applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940).

Each of Van Osdol’s four claims on appeal arises directly out of UCRS’ decision to revoke her novitiate minister license and to rescind the decision to allow her to open a new church.⁶ Thus, each claim arises out of UCRS’ choice of whether or not to employ Van Osdol as a minister of its church.

These facts therefore set this case apart from the vast majority of church employment cases involving non-minister hiring and discharge decisions, as well as from cases involving a minister’s charges against a church that deal with employment matters separable from doctrinal issues. We conclude that the First Amendment does bar application of Title VII to the facts of this case. The choice of a minister is a unique distillation of a belief system. Regulating that choice comes perilously close to regulating belief.

V.

Courts have traditionally analyzed the scope of the First Amendment by reference either to the Free Exercise Clause or to the Establishment Clause. Even so, the line between the two clauses can be indistinct and hard to define. Whether the courts should intrude into ecclesiastical decisions regarding choice of a minister is an issue that bridges both religion clauses of the First Amendment, because it potentially involves governmental intrusion into both ecclesiastical and individual decision-making. Hence, both clauses of the First Amendment are implicated and the parallel lines of eases must be examined. However, whether we look to Free Exercise Clause analysis or to Establishment Clause analysis, we find that a church’s choice of a minister is uniquely protected.

A.

Traditional free exercise analysis employs a balancing test to determine when a person or religious institution should be granted an exemption from a law that would otherwise require that person or institution to violate their religious beliefs. Under this test, governmental actions that substantially burden a religious practice must be justified by a compelling state interest. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). A court is, therefore, required to weigh the government’s interest in enforcing the statute against the detrimental impact the statute would have on a person’s religious practices. See, e.g., Bob Jones Univ. v. United States, 461 U.S. 574, 603-04, 103 S.Ct. 2017, 2034-35, 76 L.Ed.2d 157 (1983). In addition, courts must determine whether the governmental interest may be achieved through an alternative, less restrictive means. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981).

Many courts have used the compelling state interest test in reviewing suits brought by members of clergy regarding clerical appointment decisions by their church employers. Where the clergy member alleges a violation of civil law by the church in the appointment process, courts have repeatedly found that the church’s interest in free exercise outweighs the government’s interest in enforcing the particular statute. “Because the appointment [to a chaplaincy] is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them.” Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16, 50 S.Ct. 5, 7, 74 L.Ed. 131 (1929). Secular courts must accept this decision as conclusive, even though it affects civil rights, because it is a purely ecclesiastical matter. Id.; see also Young v. Northern Illinois Conference of United Methodist Church, 21 F.3d 184 (7th Cir.), cert. denied, — U.S.-, 115 S.Ct. 320, 130 L.Ed.2d 281 (1994); Scharon v. St. Luke’s Episcopal Presbyterian Hosps., 929 F.2d 360 (8th Cir.1991); Natal v. Christian & Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989); Hutchison v. Thomas, 789 F.2d 392 (6th Cir.), cert. denied 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 253 (1986).

A leading case using traditional free exercise analysis in a minister choice context is Rayburn v. General Conference of Seventhday Adventists, 772 F.2d 1164 (4th Cir.1985), cert. denied 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986). In Rayburn, a woman denied a position as an associate in pastoral care in the Seventh-day Adventist Church charged the church with sexual and racial discrimination under Title VII. The Fourth Circuit dismissed the case under both the Free Exercise and Establishment Clauses, finding that the First Amendment barred jurisdiction over the church’s choice of a minister. In applying the compelling state interest test in the free exercise portion of the analysis, the court held that judicial interference in the choice of an associate in pastoral care would create an inroad into religious liberty so great that the balance of values weighed conclusively against the government. Id. at 1169.

Similarly, Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354, 1355 (D.C.Cir.1990), concerned a Methodist minister who alleged that the United Methodist Church violated various laws, including the Age Discrimination in Employment Act, in denying him a promotion to a better pastoral appointment. The court in Minker found that the appointment of a pastor is a determination of “whose voice speaks for the church.” Id. at 1356. The court held that the First Amendment prohibits judicial review because the appointment of a pastor “is per se a religious matter.” Id. at 1355-57.⁷ This is so even if the church adopts its own idiosyncratic reasons or relies on factors that are not independently ecclesiastical in nature.

Underlying the court’s decision in Minker is a recognition of the link between a church’s religious doctrine and its choice of a minister. The court in Minker stated that a minister is the “lifeblood” of the church. Id. at 1357 (quoting McClure v. Salvation Army, 460 F.2d 553, 559 (5th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972)). “The minister is the chief instrument by which the church seeks to fulfill its purpose.” McClure, 460 F.2d at 559. Because of the minister’s unique role in the church, the appointment of a minister is inherently of prime ecclesiastical concern. Minker, 894 F.2d at 1357.

Although it mentioned other courts’ use of the compelling state interest test in similar situations, the court in Minker did not explicitly apply this test. It did hold that, as a threshold matter, the mere maintenance of a suit concerning matters related to a pastoral appointment violates free exercise protection. “We cannot imagine an area of inquiry less suited to a temporal court for decision; evaluation of the ‘gifts and graces’ of a minister must be left to ecclesiastical institutions.” Id.⁸

Under the Free Exercise compelling state interest test as set out in Rayburn, or the abbreviated analysis used in Minker, the choice of a minister is protected from review by secular courts.

Van Osdol urges that she is merely asking the court to determine if the church’s stated ecclesiastical reasons for not hiring her were pretextual, and that this inquiry can be accomplished without analysis of religious doctrine.

However, by challenging UCRS’ decision not to hire her as a minister, Van Osdol inevitably leads the court into analysis of UCRS’ choice of a minister, even for purposes of a pretextual inquiry. The decision to hire or discharge a minister is itself inextricable from religious doctrine. The great majority of cases find that a minister holds a special and unique position as the leader of the church and the embodiment of the church’s religious beliefs. Thus, the church’s decision of who to hire as a minister necessarily involves religious doctrine. The decision may involve non-religious reasons as well, but those reasons cannot be separated from the basic belief that a particular person embodies or does not embody the religious beliefs of the church. See Minker, 894 F.2d at 1357 (holding that it does not matter whether the factors relied upon by the church were independently ecclesiastical or not, for since they relate to a pastoral appointment decision they are automatically intertwined with religious doctrine).

Cases permitting pretextuai inquiries in other contexts take respectful note of the distinction between a minister choice case and any other type of employment case involving a religious institution. For example, Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 F.3d 324 (3d Cir.1993), concerned a lay teacher at a parochial school. The court went into a lengthy discussion distinguishing the case from cases involving the hiring or discharge of a minister, and concluded that in the ease before it, “a court could adjudicate Geary’s claims without the entanglement that would follow were employment of clergy or religious leaders involved.” Geary, 7 F.3d at 331. Similarly, in DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir.1993), the court specifically distinguished its own holding allowing a pretextuai hearing for a lay teacher’s discrimination claim from cases dealing with “the pervasively religious relationship between a member of the clergy and his religious employer.” DeMarco, 4 F.3d at 171. But cf. Drevlow v. Lutheran Church, Missouri Synod, 991 F.2d 468 (8th Cir.1993) (holding that First Amendment did not bar inquiry into minister’s employment related tort claims against his church).

Geary and DeMarco allowed pretextuai hearings because those cases involved situations where there was a possibility that the employee could prove his or her claim without resort to analysis of church doctrine. This may be possible in a ease involving a lay teacher, a choir director, a church secretary, an organist, or other employees of a religious organization,⁹ but it is not possible in a case involving the choice of a minister.

Allowing a pretextuai hearing in a minister choice case inevitably encourages sophistry and leads a court nowhere. Once the church states that the decision was, even in part, doctrinal,¹⁰ then the court would either have to invoke the First Amendment and cease inquiry or enter into the impermissible activity of analyzing church doctrine and perhaps weighing the importance of a particular area of the doctrine.

Our holding does not bar the large number of non-clergy employees from suing the church on discrimination claims. It does not even bar ministers from bringing employment discrimination claims that do not stem directly from a hiring or discharge decision.¹¹ Instead, our holding recognizes a small, inviolable area in which the decision of a church is not subject to governmental scrutiny-

B.

Van Osdol argues that the compelling state interest test has been displaced by the United States Supreme Court decision in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). She further argues that, after Smith, UCRS’ minister choice is no longer insulated from judicial review. We disagree.

In Smith, the Supreme Court held that the Free Exercise Clause did not prohibit the state of Oregon from making the use of peyote, an hallucinogenic drug, a criminal act and from denying unemployment benefits to employees discharged for such use, even when the respondents claimed that their use of peyote was for sacramental purposes at a religious ceremony. The Court concluded that an individual may not find shelter behind the First Amendment from a neutral law of general applicability “on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id. at 879, 110 S.Ct. at 1600 (citing United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 1058 n. 3, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring in judgment)).

Smith disapproved the use of the compelling state interest test in free exercise eases,¹² and focused instead on the presumption that a neutral, generally applicable law prevails over claims of religious exemption.

Van Osdol argues that Title VII is just such a generally applicable law and that under Smith, UCRS should not be insulated from its mandate, or at a minimum, should not be insulated from the court’s determination of whether the ecclesiastical reason stated for revoking her novitiate minister license and rescinding the decision to allow her to open a new church was genuine or merely a pretext.

Smith is not a case involving the choice of a minister by a religious entity. It is a case that arises out of the criminal usage of drugs. Whether or not Smith represents a departure from traditional free exercise analysis, we believe that the reasoning underlying Smith supports the conclusion in a minister choice case that we reach today.¹³

The gravamen of Smith is that it is not the position of a judge to decide what a person’s belief system is or should be, or how important those beliefs are to that person. Id. at 886-87,110 S.Ct. at 1604-05.¹⁴

“[I]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.” Hernandez v. Commissioner, 490 U.S. [680] at 699 [109 S.Ct. 2136, 2148, 104 L.Ed.2d 766 (1989)]. Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim.

Id. at 887, 110 S.Ct. at 1604.

It is this underlying reason that leads the Smith majority to conclude that the compelling interest test should not be applied to allow exemptions based on a person’s system of religious beliefs. “[I]t is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practices.” Id. at 889-90 n. 5, 110 S.Ct. at 1606 n. 5. Applying the compelling state interest test to free exercise claims would constantly require judges to weigh the importance of a person’s system of religious beliefs against the importance of a particular statute and it is this act that the Court finds “contradicts both constitutional tradition and common sense.” Id. at 885, 110 S.Ct. at 1603.

Under the Smith facts, consideration of whether or not to grant an exemption would require the judge to weigh the importance of individuals’ beliefs concerning the use of peyote as part of their traditional religious practices against the state’s interest in the criminal prohibition of peyote use. Thus, the judge would be required to determine what the person’s belief system is and how central a particular practice is to that belief system. The majority in Smith would have the courts avoid such impermissible analysis by applying the law uniformly and disallowing exemptions based on religion.

A minister choice case requires a different result. Applying Title VII or any anti-discrimination law to a church’s choice of a minister would require a judge to question the belief system of the church, to validate certain interpretations of the religious doctrine over others, or to compel the church to accept certain ideas into their belief system. All of these actions clearly fall into the unacceptable realm of judicial evaluation of religious belief. Hence, the reasoning in the Smith case argues for one result when applied to a felony drug law and quite another when applied to a church’s choice of its minister. It would be impossible for a court to apply Title VII and evaluate the propriety of a minister hiring or discharge decision without evaluating the beliefs behind that decision.

We find the facts of Smith distinguishable. We further find that the rationale driving the decision in Smith would itself protect UCRS’ decision regarding Van Osdol from application of Title VII.

VI.

In addition to the Free Exercise Clause, various courts have relied upon the Establishment Clause to protect a church’s choice of a minister from court intervention. These courts have concluded that government intervention in the choice of a minister violates the Establishment Clause by creating excessive government entanglement with religion.

The Establishment Clause prohibits “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Comm’n, 397 U.S. 664, 668, 90 S.Ct. 1409, 1411, 25 L.Ed.2d 697 (1970). The long standing test used to determine whether a statute is in violation of the Establishment Clause was set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). The Lemon test requires a government regulation to: (1) have a secular purpose, (2) neither advance nor inhibit religion as its primary effect, and (3) not foster excessive entanglement with religion. Id. at 612-13, 91 S.Ct. at 2111.¹⁵ A government regulation that fails to satisfy the test is in violation of the Establishment Clause. The prong of the test concerning us in this case is the third: excessive entanglement.

The courts have historically recognized that “both religion and government can best work to achieve their lofty aims if each is left free of the other within its respective sphere.” McCollum v. Board of Educ., 333 U.S. 203, 212, 68 S.Ct. 461, 465, 92 L.Ed. 649 (1948). “[R]eligious freedom encompasses the ‘power [of religious bodies] to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.’ ” Serbian Eastern Orthodox Diocese for the United States & Canada v. Milivojevich, 426 U.S. 696, 721-22, 96 S.Ct. 2372, 2386, 49 L.Ed.2d 151 (1976) (quoting Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 73 S.Ct. 143, 154, 97 L.Ed. 120 (1952)). “The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate.” Engel v. Vitale, 370 U.S. 421, 431-32, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962) (quoting Memorial and Remonstrance against Religious Assessments, II Writings of Madison, 183, 187). While some government entanglement with religion is inevitable, excessive entanglement is constitutionally impermissible. See Walz, 397 U.S. at 674, 90 S.Ct. at 1414. In rhetorical terms, we must “take the political hands of Caesar off of the institutions of God....” King’s Garden, Inc. v. F.C.C. 498 F.2d 51, 54 n. 6 (D.C.Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974).

To determine whether government entanglement with a religious organization is excessive, a court must consider the character and purpose of the institution involved, the nature of the regulation’s intrusion into religious administration, and the resulting relationship between the government and the religious authority. Lemon, 403 U.S. at 614—15, 91 S.Ct. at 2112.

The United States Supreme Court has held that claims involving “core” questions of church discipline and internal governance are insulated from judicial review.¹⁶ See Milivojevich, 426 U.S. at 717, 721, 96 S.Ct. at 2384, 2386. In Milivojevich, the Court was faced with an internal theological dispute over control of a church by different sects and with the decision to defrock the church’s bishop. The Court found that the bishop is “the embodiment of the church” within his diocese and the “chief representative and guiding leader of all church spiritual life and order in the diocese.” Id. at 717, 96 S.Ct. at 2384. It found that the bishop is one of the central figures in the church hierarchy, the composition of which is at “the core of ecclesiastical concern.” Id.

From these determinations the Court concluded that temporal courts have no jurisdiction over “quintessentially religious controversies” such as this. Id. at 720, 96 S.Ct. at 2385. Milivojevich has stood as the seminal ease in protecting minister choice decisions from judicial review. Since Milivojevich, many courts have held that claims concerning the choice of a minister are precluded because the core ecclesiastical nature of the decision would require excessive government entanglement with the church. See Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324, 330-31 (3d Cir.1993); DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171-72 (2d Cir.1993); Scharon, 929 F.2d at 362-63; Minker, 894 F.2d at 1360; Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1577 (1st Cir.1989); Rayburn, 772 F.2d at 1169-71.

The principle underlying the reasoning in all of these cases is that the appointment of a minister is an expression of the beliefs of the church and the “embodiment” of the religion. Milivojevich, 426 U.S. at 717, 96 S.Ct. at 2384. “It is axiomatic that the guidance of the state cannot substitute for that of the Holy Spirit and that a courtroom is not the place to review a church’s determination of ‘God’s appointed.’” Rayburn, 772 F.2d at 1170. In analyzing a church’s choice of a minister, attempts to separate arguably impermissible discriminatory grounds for a decision from grounds stemming from the church beliefs excessively entangles a court with religion.¹⁷ Hence, the Establishment Clause insulates a religious institution’s choice of a minister from judicial review.

VII.

Van Osdol petitions this court to apply a “fraud or collusion” exception to the First Amendment bar on judicial review of UCRS’ choice of a minister. We decline to find that such an exception exists in this ease.

The source of the suggested fraud or collusion exception arises out of dicta appearing in United States Supreme Court cases. Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16, 50 S.Ct. 5, 7, 74 L.Ed. 131 (1929), introduced the possibility of such an exception by stating that “in the absence of fraud, collusion or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before secular courts as conclusive-” Gonzalez concerned an appointment to a chaplaincy in the Catholic Church, in which the court found “not even a suggestion that [the Archbishop] exercised his authority arbitrarily” in making the choice. Id. at 18, 50 S.Ct. at 8.

The reference in Gonzalez to a fraud, collusion or arbitrariness exception was next discussed by the United States Supreme Court in Milivojevich, 426 U.S. 696, 96 S.Ct. 2372. There, the Supreme Court stated that “although references to the suggested [fraud, collusion or arbitrariness] exception appear in opinions ... no decision of this Court has given concrete content to or applied the ‘exception.’ ” Id. at 712, 96 S.Ct. at 2382. In Milivojevich, the Illinois Supreme Court had concluded that a church’s decision to defrock a bishop was arbitrary because the church had not followed its own internal laws. For this reason, the Illinois Supreme Court intervened in the church’s internal religious dispute. The United States Supreme Court overruled the Illinois court, holding that there existed no arbitrariness exception to the First Amendment bar to judicial review of an ecclesiastical decision. Id. at 713, 96 S.Ct. at 2382. The Court further held that allowing an arbitrariness exception would be inconsistent with the constitutional mandate that courts must accept church decisions on essentially ecclesiastical matters. Id.

Milivojevich addressed the arbitrariness exception directly, but did not analyze the propriety of any fraud or collusion exceptions since the Illinois court’s decision had been based on a finding of arbitrariness only. However, the reasoning found in Milivoje-vich regarding the impropriety of an arbitrariness exception applies equally to a fraud or collusion exception. As the Milivojevich court stated, “[I]t is the essence of religious faith that ecclesiastical decisions are reached and are to be accepted as matters of faith whether or not rational or measurable by objective criteria.” Id. at 714-15, 96 S.Ct. at 2382-83. In order to determine whether a church employed fraudulent or collusive tactics in choosing a minister, a court would necessarily be forced to inquire into the church’s ecclesiastical requirements for a minister. The First Amendment makes such inquiry into religious beliefs impermissible. See Kaufmann v. Sheehan, 707 F.2d 355, 358-59 (8th Cir.1983) (finding that even though there may be some secular aspects to the priesthood, claims for fraud or collusion that relate to a person’s status as a priest are unrelated to secular purposes but instead go to the heart of internal matters of faith and thus, no fraud or collusion exception is available); see also Hutchison v. Thomas, 789 F.2d 392, 395 (6th Cir.) (refusing to find a fraud or collusion exception based on the firm policy protecting First Amendment rights that prohibits inquiry into ecclesiastical decisions absent the most unusual circumstances), cert. denied, 479 U.S. 885, 107 S.Ct. 277, 93 L.Ed.2d 253 (1986).

The inherently ecclesiastical nature of the choice of a minister is logically inconsistent with a fraud or collusion exception to the First Amendment’s bar on judicial review of UCRS’ decisions regarding Van Osdol and we decline to adopt such an exception.

VIII.

In employment discrimination cases such as this, the conflict between public law and religious freedom is extremely difficult to resolve. Society has a significant interest in assuring that discrimination and impermissible retaliation do not occur.

Nonetheless, whether we rely upon a compelling state interest test, upon the rationale of Smith, or upon the excessive entanglement analysis of the Establishment Clause, we reach the conclusion that UCRS’ choice to revoke Van Osdol’s novitiate minister license and to rescind permission for her to open a new Church of Religious Science is protected under the First Amendment. Therefore, the district court was precluded from taking jurisdiction over any of the four claims at issue. Each of these claims, while setting forth differing claims against differing parties, focuses on UCRS’ choice not to extend membership into its clergy to Van Osdol.

We do not by this opinion hold that churches are insulated from the law. We do not address various claims that could be brought by a minister against his or her church.¹⁸ We also do not address the question of non-clergy employee hiring or discharge decisions.¹⁹

What we do hold is that a church’s choice of who shall serve as its minister is inextricably related to religious belief and therefore invokes the protection of the First Amendment. We affirm the court of appeals and return this case to the court of appeals to remand to the district court for further proceedings consistent with this opinion.

MULLARKEY, J., concurs, and SCOTT, J., joins in the concurrence. VOLLACK, C.J., dissents.

1 . Issues regarding the applicable statute of limitations on Van Osdol’s claims are not before us.

2 . At oral argument, counsel informed the court that Van Osdol has been reinstated by UCRS and now has a ministry. That fact does not appear in the record, was not before the trial court or the court of appeals, and therefore plays no part in our analysis.

3 .Section 702 applies to foreign corporations and religious entities and states:

This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

42 U.S.C. § 2000e-l(a) (1988 & Supp. V 1993).

4 . The legislative history of Title VII shows that Congress considered giving religious organizations a blanket exemption from all the requirements of Title VII, but instead decided on a narrower course, exempting religious institutions from the prohibition on religious discrimination only. See McClure v. Salvation Army, 460 F.2d 553, 558 (5th Cir.) (explaining legislative history of § 702), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972).

5 . The Colorado Constitution also guarantees the freedom of religion under Article II, § 4.

6 . Van Osdol's claims of intentional interference with contract, interference with prospective economic advantage, and breach of fiduciary duty all relate directly to UCRS' choice of a minister. Each claim requires a showing of causation of harm, which in this case Van Osdol characterizes as substantial economic loss as a result of UCRS' decision to revoke her license and rescind its approval for a new church. See, e.g., Amoco Oil Co. v. Ervin, 908 P.2d 493 (Colo.1995) (interference with quasi-contractual relations to gain economic advantage requires a showing that defendant caused third party not to enter into prospective relationship with plaintiff); Rupert v. Clayton Brokerage Co. of St. Louis, 737 P.2d 1106 (Colo.1987) (breach of fiduciary duty requires showing that alleged breach was cause of plaintiff's damages); Watson v. Settlemeyer, 150 Colo. 326, 372 P.2d 453 (1962) (intentional interference with contract where defendant's actions caused third party to terminate contract with plaintiff). For a court to determine whether the defendants impermissibly caused plaintiff damage would require the court to examine the reasoning behind UCRS' choice of a minister. As our holding today explains, such inquiry is barred.

7 . We note that UCRS set forth as an affirmative defense that its decisions regarding Van Osdol were made in part for ecclesiastical reasons. Van Osdol challenges this as a pretext and urges this court to investigate the true reasons for the actions taken against her. We decline to do so because church authority over choice of a minister is beyond the scope of permissible governmental inquiry. Even if the reasons on which UCRS based its decisions were secular, because they were applied to the choice of a minister, they become inextricable from belief. See Scharon, 929 F.2d at 363.

8 . The plaintiff in Minker brought an employment discrimination and a contract claim against the church. The court treated these separate claims differently. With regard to the discrimination claims, Minker unequivocably held that the First Amendment barred any inquiry into the church’s determination of the plaintiff's suitability for a different pastorship. It also held that the First Amendment barred even a hearing into whether the church’s reasons for not appointing the pastor to a new pastorship were pretextual. Minker 894 F.2d at 1357. As stated above, its reasoning for these findings was that "the assignment of a minister is inherently of prime ecclesiastical concern,” and hence, there was no possibility of addressing the issue without analysis of church doctrine. Id.

Nevertheless, Minker found that to grant summary judgment on the pastor's contract claim would be premature because the contract claim had the potential to be addressed without inquiry into religious doctrine. The court found that hearing the pastor’s contract claim might require determination of the following purely factual issues: whether a promise of a more suitable congregation was made, whether consideration was given for that promise, and whether such congregations became available but were not offered to the pastor.

Like the hiring or discharge decisions regarding non-clergy employees, because the contract claim had the potential to be settled without analysis of church doctrine, it was not automatically barred by the First Amendment. Minker did recognize the possibility that the contract claim could involve inquiry into ecclesiastical policy, depending on the facts, in which case the trial court might have to dismiss the case. Minker, 894 F.2d at 1360-61. Here, Van Osdol's contract claims against UCRS and her personal tort claims against Vogt also may be addressed without resort to ecclesiastical policy. Consistent with Minker, these claims were not dismissed and are not before us.

9 .Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), heavily relied upon by Van Osdol, does not support her position because it involves a teacher and a parochial school, not a minister and a church. In addition, the Dayton decision does not turn on an analysis of the First Amendment or employment discrimination; rather, it focuses on issues of federalism and comity.

10 . In this case, UCRS alleged as an affirmative defense in its Answer that the decision to revoke Van Osdol’s license was made for ecclesiastical and business reasons. UCRS Answer, Fourth Affirmative Defense.

11 . As Justice Mullarkey states in her concurrence, if Van Osdol had brought a claim regarding a hostile work environment instead of claims directly related to the church's decision not to hire her, such a claim might have survived a First Amendment bar.

12 . Congress enacted the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4 (Supp.1993), in response to Smith. RFRA requires courts to apply the compelling state interest test to laws that burden the practice of religion. The constitutionality of RFRA is being tested in the federal courts, but has not yet been addressed by the United States Supreme Court. Regardless, RFRA is not applicable to these facts because it was not in effect when the events took place which form the basis of Van Osdol's complaint.

13 . Most of the minister choice cases post-dating Smith do not even cite Smith, but rather continue to apply traditional free exercise analysis, or Establishment Clause analysis, or both. See, e.g., Young, 21 F.3d 184 (7th Cir.) cert. denied, — U.S.-, 115 S.Ct. 320, 130 L.Ed.2d 281 (1994); Scharon, 929 F.2d 360 (8th Cir.1991); EEOC v. Catholic Univ. of America, 856 F.Supp. 1 (D.D.C.1994). But cf. Black v. Snyder, 471 N.W.2d 715 (Minn.App.1991) (holding that Smith would argue for the application of Title VII to a minister choice case, but Establishment Clause analysis prevents such a result), review denied, (Minn. Aug. 29, 1991). The courts appear to presume that the choice of a minister is protected under the rationale of cases following Serbian Eastern Orthodox Diocese for the United States & Canada v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976), and Minker, 894 F.2d 1354, which were not overruled or even mentioned in Smith.

14 .In a similar sense, the Smith majority noted that it is improper for a judge to determine the "importance" of a speaker’s ideas when weighing a free speech claim. Smith, 494 U.S. at 887, 110 S.Ct. at 1604.

15 . A more recent case, Lee v. Weisman, 505 U.S. 577, 112 S.Ct 2649, 120 L.Ed.2d 467 (1992), has been interpreted as creating a new Establishment Clause test known as the coercion test. This test questions whether the government is coercing individuals by requiring support of or adherence to a particular religious belief or practice before being allowed benefits to which they are otherwise entitled. However, the Weisman opinion explicitly refused to reconsider the Lemon test and instead confined its holding to cases in which government creation of a state-sponsored and state-directed religious exercise in a public setting was seen as "an attempt to employ the machinery of the state to enforce a religious orthodoxy.” Weisman, 505 U.S. at 592, 112 S.Ct. at 2658. Thus, since our analysis concerns government restriction on actions of UCRS, and not some form of improper subsidization or support of UCRS, the Lemon test continues to apply.

16 . Compare to Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990), in which a religious corporation brought suit alleging that application of sales and use tax to its sale of religious materials created excessive government entanglement in violation of the Establishment Clause. Id. at 394, 110 S.Ct. at 698. The Court found in part that because the nature of the entanglement was administrative instead of requiring inquiry into religious doctrine, the entanglement was not of constitutional importance and thus did not violate the Establishment Clause. Id. at 397, 110 S.Ct. at 699.

17 . While claims for illegal hiring or discharge of a minister inevitably involve religious doctrine, that is not the case for a claim of negligent hiring of a minister. The claim of negligent hiring is brought after an employee has harmed a third party through his or her office of employment. An employer is found liable for negligent hiring if, at the time of hiring, the employer had reason to believe that hiring this person would create an undue risk of harm to others. Connes v. Molalla Transp. System, Inc., 831 P.2d 1316, 1321 (Colo.1992); Restatement (Second) of Agency § 213 cmt. d (1958). Hence, the court does not inquire into the employer's broad reasons for choosing this particular employee for the position, but instead looks to whether the specific danger which ultimately manifested itself could have reasonably been foreseen at the time of hiring. This inquiry, even when applied to a minister employee, is so limited and factually based that it can be accomplished with no inquiry into religious beliefs. See Moses v. Diocese of Colo., 863 P.2d 310, 320-21 (Colo.1993) (holding that although courts must not become embroiled in interpreting or weighing church doctrine, a claim of negligent hiring of a minister is actionable because it does not require such interpretation or weighing of religious belief but instead is merely application of a secular standard to secular conduct), cert. denied, — U.S.-, 114 S.Ct. 2153, 128 L.Ed.2d 880 (1994).

18 . See, e.g., Minker, 894 F.2d at 1360 (holding First Amendment not a bar to pastor’s claims that do not create excessive entanglement with religion); Marshall v. Munro, 845 P.2d 424, 428 (Alaska 1993) (finding First Amendment does not bar claims that do not require determination of whether plaintiff was qualified to be a pastor); Welter v. Seton Hall Univ., 128 N.J. 279, 608 A.2d 206, 214 (1992) (holding that employee's status as a cleric does not preclude her secular claims, rather, the court must abstain only when issue is whether person should serve in a "ministerial function”); Black v. Snyder, 471 N.W.2d 715, 720 (Minn.Ct.App.1991) (dismissing claims related specifically to factors of appointment and discharge of associate pastor but allowing associate pastor's claim regarding predischarge sexual harassment to stand), review denied, (Minn. Aug. 29, 1991).

19 . See, e.g., Geary v. Visitation of the Blessed Virgin Mary Parish Sch., 7 F.3d 324 (3d Cir.1993) (allowing court jurisdiction since teacher’s employment discrimination claims would not involve the entanglement required in a situation involving employment of clergy); DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir.1993) (distinguishing lay teacher's employment discrimination claim against religious employer from those brought by members of the clergy); E.E.O.C. v. Pacific Press Publishing Ass’n, 676 F.2d 1272 (9th Cir.1982) (applying employment law to editorial secretary at a church-run publishing house); E.E.O.C. v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir.1981) (applying Title VII to administrative and support staff at seminary), cert. denied, 456 U.S. 905, 102 S.Ct. 1749, 72 L.Ed.2d 161 (1982); E.E.O.C. v. Mississippi College, 626 F.2d 477 (5th Cir.1980) (applying Title VII to promotion of secular teacher in religious educational institution), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994(1981).