Rockwell v . Roman Catholic Archdioc. CV-02-239-M 10/30/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Susan S . Rockwell, Esquire, Plaintiff

v. Civil N o . 02-239-M Opinion N o .

Roman Catholic Archdiocese of Boston, Massachusetts; Roman Catholic Diocese of Manchester, New Hampshire; United States Conference of Catholic Bishops; and Charles O . Rissotti, Commissioner, Internal Revenue Service, Defendants

O R D E R

Attorney Susan Rockwell, proceeding pro s e , brings this

action against various entities within the Roman Catholic Church

(the “Church defendants”), as well as the Commissioner of the

Internal Revenue Service, claiming that defendants have deprived

her of various statutory and constitutional rights by, among

other things, refusing to ordain her as a Roman Catholic priest.

She seeks declaratory and injunctive relief, including: (1) a

declaration that the Church defendants do not qualify for tax

exempt status because they discriminate against women; (2) a

permanent injunction against the Commissioner, barring him from

continuing the tax exempt status of the Church defendants; and (3) a permanent injunction against the Church defendants, barring

them from “prohibiting free speech regarding ordination of women

in the Church.” Complaint at 2 3 . She claims that, unless the

“Commissioner revokes the tax exempt status and charitable

deduction status of [the Church defendants], . . . she will be

denied free exercise of her religion, free speech and civil

rights in employment as a priest in her Church.”

at para.

95.

On August 5 , 2002, the Magistrate Judge conducted a

preliminary review of plaintiff’s complaint to determine whether

it properly invokes this court’s subject matter jurisdiction. In

the wake of that review, the Magistrate Judge concluded that the

complaint fails to state a prima facie claim under

(or Bivens v . Six Unknown Named Agents of Fed. Bureau of

Narcotics,

(1971)) against defendants for having

violated her federally protected rights. He also concluded that

plaintiff lacks standing to challenge the Church defendants’ tax

exempt status. Accordingly, the Magistrate Judge recommended

that the court dismiss plaintiff’s “First Amendment, tax and

companion state [statutory and constitutional] claims.” Report

2 and Recommendation (document n o . 3 ) at 1 1 . The Magistrate Judge

did, however, recommend that plaintiff’s remaining claims - those

under Title VII and New Hampshire’s Law Against Discrimination -

be served on defendants.1 Plaintiff filed an objection to the

Report and Recommendation, which is presently before the court.

Discussion

I. The Report and Recommendation.

As to those counts in plaintiff’s complaint challenging the

Church defendants’ tax exempt status, the Magistrate Judge

correctly concluded that plaintiff lacks standing. Among other

things, he noted that plaintiff has “drawn no factual nexus

between the grant of tax exempt status and the decision not to

allow women to become priests” and she “does not even attempt to

address in her complaint how revocation of the Church’s tax

exempt status would redress the injury she complains of and allow

her to become a priest.” Report and Recommendation at 1 1 . See

1 Although he recommended that plaintiff’s gender-based discrimination claims be served on defendants (because those claims properly invoke the court’s subject matter jurisdiction), the Magistrate Judge observed that, in light of the “ministerial exception” to anti-discrimination laws, plaintiff could not prevail on the merits. Report and Recommendation at 6 n.2.

3 generally Allen v . Wright,

(1984) (holding that, for

a plaintiff to have standing, his or her alleged injury must be

“fairly traceable” to the challenged action, and relief from the

injury must be “likely” to follow from a favorable decision).

See also Fulani v . Brady,

(D.C. Cir. 1991) (holding

that political candidate lacked standing to challenge the tax

exempt status of non-profit sponsor of political debates).

Because plaintiff lacks standing to challenge the Church

defendants’ tax exempt status (counts 1 , 3 , and 4 ) , there is no

case or controversy over which the court may properly exercise

its subject matter jurisdiction.

As to those counts in which plaintiff alleges that the

Church defendants have violated her constitutionally protected

rights (e.g., free speech, free exercise of religion, equal

protection, e t c . ) , the Magistrate correctly concluded that

plaintiff’s complaint fails to allege the requisite “state

action.” See generally Public Utilities Comm’n v . Pollak,

5 1 , 461 (1952) (holding that the First Amendment “appl[ies]

to and restrict[s] only the Federal Government and not private

persons”). See also Mass. Universalist Convention v . Hildreth &

4 Rogers Co.,

9 7 , 501 (1st Cir. 1950) (“Plaintiff has

argued that on the allegations of the complaint, it has a cause

of action for the violation of its right to freedom of speech and

freedom of religion under the First Amendment to the

Constitution. But this Amendment limits only the action of

Congress or of agencies of the federal government and not private

corporations such as defendant here.”); National A-1 Advertising

v . Network Solutions, Inc.,

(D.N.H.

2000) (“By its very terms, the [First] Amendment proscribes

governmental conduct, not conduct undertaken by private

citizens.”). Accordingly, counts 5 , 6, 7 , and 8 do not state

viable causes of action and fail to invoke this court’s subject

matter jurisdiction. The same is true of the corresponding state

constitutional claims (i.e., counts 11 through 1 4 ) . 2

2 In her objection (document n o . 6 ) plaintiff attempts to undermine the Magistrate Judge’s reasoning by asserting that she has not pled any claims under

or Bivens. See Plaintiff’s objection at 3 . Instead, she seems to believe that the court may exercise subject matter jurisdiction over her claims simply because she seeks relief under the Declaratory Judgment Act,

, et seq. Importantly, however, the Declaratory Judgment Act does not provide courts with an independent basis for subject matter jurisdiction. See, e.g., Progressive Consumers Fed. Credit Union v . United States,

(1st Cir. 1996) (holding that the Declaratory Judgment Act “neither provides nor denies a jurisdictional basis for actions under federal law, but merely defines the scope of available declaratory relief.”). S o , it is not enough for

5 In light of the foregoing, the court approves and adopts the

Magistrate Judge’s Report and Recommendation (document n o . 3 ) to

the extent it recommends that counts 1 , 3-8, and 11-14 be

dismissed for, among other things, failing to invoke this court’s

subject matter jurisdiction.

II. Plaintiff’s Remaining Claims.

Plaintiff’s remaining claims generally allege that the

Church defendants unlawfully discriminate against women in

general, and plaintiff in particular. In count 2 , plaintiff

seeks a judicial declaration that, among other things, the

“teaching that the Church does not have the authority to ordain

women as priests and deacons is not a ‘sincerely held religious

belief,’” and the “all male priesthood violates public policy,

the social norm and social conscience in that it endorses an

exclusively male society of seminaries, all male hierarchy,

plaintiff to simply claim that an individual or entity is “violating her constitutional rights.” She must also allege a viable foundation upon which the court may base its exercise of subject matter jurisdiction over that claim. As to counts 5 , 6, and 7 , however, she has failed to do s o . Only count 2 , in which plaintiff seeks a judicial declaration that the Church defendants “discriminate against the civil and Constitutional rights of Plaintiff and other women,” complaint at para. 1 1 1 , arguably provides the court with such a jurisdictional foundation: Title VII of the Civil Rights Act.

6 clergy, . . . and altar servers.” Complaint at paras. 107 and

113. In the remaining two counts of her complaint, plaintiff

alleges that, by refusing to allow women to become priests, the

Church defendants (with the support of the Commissioner, through

his continued recognition of their tax exempt status) violate the

provisions of Title VII (count 9 ) and New Hampshire’s Law Against

Discrimination, N.H. Rev. Stat. Ann. 354-A (count 1 0 ) .

As plaintiff herself appears to acknowledge, however, in

order to prevail on her gender discrimination claims and the

related declaratory judgment claim, this court would be required

to depart substantially from widely accepted law (as well as

circuit precedent) in this area. See Plaintiff’s objection

(document n o . 6 ) at 9 (arguing for the reversal or modification

of existing precedent). Specifically, for plaintiff to proceed

with her discrimination claims (arising out of the Church

defendants’ refusal to ordain her as a priest), this court would

have to disregard the so-called “ministerial exception” which,

generally speaking, provides that state and federal anti-

discrimination laws are not applicable to the employment

relationship between a church and its ministers or clergy. See

7 McClure v . Salvation Army,

(5th Cir. 1972)

(“the application of the provisions of Title VII to the

employment relationship existing between . . . a church and its

minister would result in an encroachment by the State into an

area of religious freedom which it is forbidden to enter by the

principles of the free exercise clause of the First Amendment.”).

The “ministerial exception” has been expressly adopted by

the Court of Appeals for the First Circuit. See Natal v .

Christian and Missionary Alliance,

(1st Cir.

1989) (“Howsoever a suit may be labeled, once a court is called

upon to probe into a religious body’s selection and retention of

clergymen, the First Amendment is implicated.”) (citing McClure,

supra). It has also been adopted by several other circuit courts

of appeals. See, e.g., EEOC v . Catholic Univ. of America,

(D.C. Cir. 1996) (“[T]his circuit and a number of

others have long held that the Free Exercise Clause exempts the

selection of clergy from Title VII and similar statutes and, as a

consequence, precludes civil courts from adjudicating employment

discrimination suits by ministers against the church or religious

institution employing them.”); Young v . N . Ill. Conf. of United

8 Methodist Church,

8 4 , 187 (7th Cir. 1994) (holding that

“the Free Exercise Clause of the First Amendment forbids a review

of a church’s procedures when it makes employment decisions

affecting its clergy.”); Rayburn v . General Conf. of Seventh-Day

Adventists,

, 1169 (4th Cir. 1985) (“[I]ntroduction

of government standards to the selection of spiritual leaders

would significantly, and perniciously, rearrange the relationship

between church and state.”). 3

In sum, plaintiff can only prevail on her gender-based

discrimination claims if this court ignores not only a

substantial and persuasive body of developed law, but

specifically applicable circuit precedent as well. That, it

cannot d o . Consequently, even construing the factual allegations

set forth in the complaint in the light most favorable to

3 Parenthetically, the court notes that at least three circuit courts of appeals have held that the “ministerial exception” survives the Supreme Court’s opinion in Employ’t Div., Dep’t of Human Resources of Oregon v . Smith,

(1990) (holding that the Free Exercise Clause of the First Amendment does not relieve an individual from the obligation to comply with neutral laws of general applicability). See Catholic Univ. of

Combs v . Central Texas Annual Conf. of United Methodist Church,

(5th Cir. 1999); Gellington v . Christian Methodist Episcopal Church, Inc.,

(11th Cir. 2000).

9 plaintiff, the court is compelled to conclude that, as a matter

of law, her gender-based discrimination claims (counts 2 , 9, and

10) fail to state viable causes of action. And, because it is

“crystal clear that the plaintiff cannot prevail and that

amending the complaint would be futile,” Chute v . Walker,

1 4 , 319 (1st Cir. 2002) (citation and quotation marks

omitted), those counts are dismissed. See generally Gonzalez-

Gonzalez v . United States,

1 , 37 (1st Cir. 2001)

(holding that sua sponte dismissal is appropriate when “the

allegations contained in the complaint, taken in the light most

favorable to the plaintiff, are patently meritless and beyond all

hope of redemption.”).

Conclusion

For the foregoing reasons, the court accepts and adopts the

Report and Recommendation of the Magistrate Judge dated August 5 ,

2002, to the extent it recommends dismissal of counts 1 , 3-8, and

11-14. As to the remaining counts in plaintiff’s complaint -

counts 2 , 9, and 10 - they too are dismissed, sua sponte, for

failure to state a viable cause of action in light of the well-

recognized and plainly applicable “ministerial exception” to

10 state and federal anti-discrimination law. The Clerk of Court

shall close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 3 0 , 2002

cc: Susan Rockwell

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