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Ninth Circuit Rules Ministerial Exception Extends Beyond Religious Disputes

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Jan 29, 2025

Yaakov Markel, an Orthodox Jewish man, served as a mashgiach (kosher supervisor) for the Union of Orthodox Jewish Congregations of America (OU) from 2011 to 2018. OU operates the largest kosher certification program in the United States and supports the Orthodox Jewish community through various religious, youth, and educational programs. OU, a 501(c)(3) nonprofit, generates significant revenue from its certification program, which it uses to further its religious mission.

A team administers OU’s kosher program. Markel’s role as a mashgiach involved ensuring the kosher integrity of grape products at two wineries. Grape products are subject to strict Jewish dietary laws, requiring supervision by observant Orthodox Jews to ensure that the grapes are sufficiently cooked under Jewish dietary law. To qualify for his position, Markel provided a certification letter from an Orthodox rabbi affirming his knowledge of kosher laws, Sabbath observance, and compliance with Jewish dietary practices.

Over time, Markel said his relationship with his supervisor, Rabbi Nachum Rabinowitz, deteriorated. Markel alleged that Rabbi Rabinowitz promised him a promotion and raise that never materialized and that OU failed to compensate him for overtime. OU denied these claims, ultimately leading to Markel’s resignation and subsequent legal action. Markel filed suit and raised claims of wage and hour violations, fraud, and misrepresentation.

The case centered on the First Amendment’s ministerial exception, which protects religious institutions from employment-related lawsuits involving certain key employees integral to their religious mission. In particular, the ministerial exception prevents governmental interference in a religious institution’s decisions regarding faith and governance.

The ministerial exception is categorical, encompassing all adverse personnel or employment actions between religious institutions and their employees, and disallows lawsuits for damages based on lost or reduced pay. Therefore, so long as OU qualified as a religious organization and Markel was considered a minister, the exception would apply to each of Markel’s employment related claims.

The trial court, in a matter of first impression in the Ninth Circuit, held that Markel’s position as a mashgiach qualified under the ministerial exception and that OU was a religious organization. As such, the trial court concluded that Markel’s claims were categorically barred by the ministerial exception. Markel appealed.

On appeal, Markel contended that OU could not invoke the exception because its kosher certification program was revenue-generating and operated in a competitive market. The defendants (OU and Rabbi Rabinowitz) asserted that the ministerial exception barred Markel’s claims because OU is a religious organization and emphasized that maintaining kosher standards is an essential aspect of Orthodox Judaism.

The Court of Appeals agreed with the defendants and held that despite generating revenue through its kosher certification program, OU qualified as a religious organization. Its activities, including youth and educational programs, aligned with its religious mission to support the Orthodox Jewish community. The fact that OU profited or competed with for-profit companies did not make the organization non-religious for the purposes of the ministerial exception.

Markel also argued that his role did not qualify under the ministerial exception because his duties were primarily secular, involving supervision of food production rather than religious functions. The defendants argued that Markel, as a mashgiach, served a key religious role central to its mission and that Markel’s responsibilities of maintaining the kosher standards of grapes involved religious duties integral to their faith.

The Court of Appeals concluded that Markel’s duties as a mashgiach—ensuring compliance with kosher laws—were essential to OU’s religious mission. Following Supreme Court precedent, the Ninth Circuit emphasized that the term “minister” extended to various religious functionaries beyond ordained clergy, including those performing duties vital to a religious institution’s mission. Here, the Court concluded that Markel was responsible for ensuring the kosher integrity of the grape products, and “keeping kosher” is essential to Orthodox Judaism.

The Court also took the opportunity to clarify the scope and purpose of the ministerial exception. Markel argued that the exception should not apply because his dispute with OU was secular. In other words, Markel asked the Court to create a rule that if a religious purpose does not animate the relevant employment decisions, the ministerial exception should not apply.

The Court rejected this argument. The Court underscored that religious decisions, even if facially secular, often intertwine with religious doctrine, and courts must avoid entanglement in such matters. The Court noted that distinguishing between secular and non-secular issues could lead to unconstitutional judicial action because it would force the Court to scrutinize religious decisions and attempt to understand certain religious beliefs.

Relatedly, the Court reiterated that the ministerial exception forbids courts from requiring religious institutions to provide a religious justification before invoking the exception, as doing so would offend the Free Exercise Clause.

Lastly, the Court extended the ministerial exception to claims against individual supervisors, such as Rabbi Rabinowitz, noting that litigation involving minister-on-minister disputes risks excessive entanglement with religious institutions.

The Ninth Circuit affirmed the trial court’s grant of summary judgment in favor of OU.

Markel v. Union of Orthodox Jewish Congregations of Am. (9th Cir. Dec. 30, 2024) 2024 U.S. App. LEXIS 32832.

Note: This case supports the ministerial exception’s broad applicability to disputes involving ostensibly secular matters, such as wage and hour and compensation claims.

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