JULIE SU, CALIFORNIA STATE LABOR COMMISSIONER, Plaintiff and Appellant, STEPHEN S. WISE TEMPLE, Defendant and Respondent.

B275426 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT, DIVISION THREE JULIE SU, CALIFORNIA STATE LABOR COMMISSIONER, Plaintiff and Appellant, v. STEPHEN S. WISE TEMPLE, Defendant and Respondent. APPEAL FROM LOS ANGELES SUPERIOR COURT ERNEST M. HIROSHIGE, JUDGE CASE NO. BC520278 APPLICATION AND AMICUS CURIAE BRIEF OF THE GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS AND THE PACIFIC UNION CONFERENCE OF SEVENTH- DAY ADVENTISTS IN SUPPORT OF RESPONDENT STANFORD LAW SCHOOL RELIGIOUS LIBERTY CLINIC JAMES A. SONNE (BAR NO. 250759) CROWN QUADRANGLE 559 NATHAN ABBOTT WAY STANFORD, CALIFORNIA 94305-8610 PHONE: (650) 723-1422 FAX: (650) 725-0253 jsonne@law.stanford.edu COUNSEL FOR AMICI CURIAE GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS PACIFIC UNION CONFERENCE OF SEVENTH-DAY ADVENTISTS 1

CERTIFICATE OF INTERESTED ENTITIES (California Rule of Court 8.208) The General Conference of Seventh-day Adventists is an unincorporated association headquartered in Silver Spring, Maryland. The Pacific Union Conference of Seventh-day Adventists is a religious non-profit corporation headquartered in Westlake Village, California. Neither entity is a corporation that issues stock, or has a parent corporation that issues stock. July 13, 2018 STANFORD LAW SCHOOL RELIGIOUS LIBERTY CLINIC By: JAMES A. SONNE Counsel for Amici Curiae GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS PACIFIC UNION CONFERENCE OF SEVENTH-DAY ADVENTISTS 2

TABLE OF CONTENTS Page APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF...8 STATEMENT OF INTEREST... 10 INTRODUCTION... 12 BACKGROUND... 15 ARGUMENT... 16 I. The ministerial exception safeguards the autonomy of religious entities to select and employ ministers as they see fit. It does not impose an orthodoxy test.... 16 A. In applying the ministerial exception, courts take an approach that focuses on the job rather than the particular person who holds it.... 16 B. In focusing on the job, and not the person, the ministerial exception contemplates flexibility to hire ministers of varied religious commitments.... 19 1. Courts have applied the ministerial exception to ministerial offices that religious entities fill with individuals outside the faith.... 19 2. The law does not, and should not, penalize religious entities for adopting inclusive hiring practices as a matter of faith or necessity.... 20 II. The ministerial exception safeguards the autonomy of religious entities not to insist on religious discrimination in their service of others.... 23 3

A. Courts apply the ministerial exception no matter the ministry s recipients.... 23 B. Serving outside the faith has long been a central tenet among religions, and continues to remain core to many entities missions and identities.... 25 III. The Commissioner s discriminatory reading of the ministerial exception threatens the autonomy of the Seventh-day Adventist Church in particular.... 27 CONCLUSION... 29 CERTIFICATE OF WORD COUNT... 31 PROOF OF SERVICE... 32 4

TABLE OF AUTHORITIES Page(s) Cases Advocate Health Care Network v. Stapleton (2017) 137 S. Ct. 1652... 10 Alcazar v. Corp. of Catholic Archbishop of Seattle (9th Cir. 2010) 627 F.3d 1288... 18 Alicea-Hernandez v. Catholic Bishop of Chicago (7th Cir. 2003) 320 F.3d 698... 17 Cannata v. Catholic Diocese of Austin (5th Cir. 2012) 700 F.3d 169... 18 Coulee Catholic Schools v. Labor & Indus. Review Comm n (2009) 320 Wis. 2d 275... 17, 19 EEOC v. Abercrombie & Fitch Stores, Inc. (2015) 135 S. Ct. 2028... 10 EEOC v. Roman Catholic Diocese of Raleigh (4th Cir. 2000) 213 F.3d 795... 17, 19 Fratello v. Archdiocese of New York (2d Cir. 2017) 863 F.3d 190... 18 Grussgott v. Milwaukee Jewish Day School (7th Cir. 2018) 882 F.3d 655... 18, 20, 21 Hosanna-Tabor Evangelical Church & School v. EEOC (2012) 565 U.S. 171... passim Larson v. Valente (1982) 456 U.S. 228... 22 Little v. Wuerl (3d Cir. 1991) 929 F.2d 944... 24, 25 Penn v. New York Methodist Hospital (2d Cir. 2018) 884 F.3d 416... 23 5

Rayburn v. General Conference of Seventh-day Adventists (4th Cir. 1985) 772 F.2d 1164... 16, 17, 21 Shaliehsabou v. Hebrew Home of Greater Washington (4th Cir. 2004) 363 F.3d 299... 23 Spencer v. World Vision, Inc. (9th Cir. 2011) 633 F.3d 723... 24 Starkman v. Evans (5th Cir. 1999) 198 F.3d 173... 17 Temple Emanuel of Newton v. Massachusetts Comm n Against Discrimination (2012) 463 Mass. 472... 18 Tomic v. Catholic Diocese of Peoria (7th Cir. 2006) 442 F.3d 1036... 21 University of Great Falls v. NLRB (D.C. Cir. 2002) 278 F.3d 1335... 22 West Virginia Board of Educ. v. Barnette (1943) 319 U.S. 624... 13 Constitutions U.S. Constitution, First Amendment... passim Federal Statutes 42 U.S.C. 2000e-1(a)... 22 42 U.S.C. 2000e-2(e)(2)... 22 Court Rules California Rule of Court 8.200...8 California Rule of Court 8.204... 15 6

Other Authorities ADVENTIST EDUCATION, http://adventisteducation.org/... 25, 27, 28, 29 ADVENTIST HEALTH, http://www.adventisthealth.org/ pages/faq/common-questions.aspx... 25 Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017)... 15, 16 Ellen G. White (1903) Education... 27 76 Fed. Reg. 46621 (Aug. 3, 2011)... 26 ISLAMIC RELIEF USA, http://irusa.org/mission-vision-values... 25 Mother Teresa (1995) A Simple Path... 25 North American Division of Seventh-day Adventists Office of Education, Handbook for Principals of Seventh-day Adventist Schools (2017)... 28 USCCB, Office of the General Counsel, Re: Advance Notice of Proposed Rulemaking on Preventive Services... 26 WE ARE SIKHS, http://www.wearesikhs.org/values... 25 7

APPLICATION FOR PERMISSION TO FILE AMICUS CURIAE BRIEF The General Conference of Seventh-day Adventists and the Pacific Union Conference of Seventh-day Adventists respectfully ask permission under California Rule of Court 8.200, subdivision (c) to file the accompanying amicus curiae brief in support of Respondent Stephen S. Wise Temple. 1 The General Conference of Seventh-day Adventists is the highest administrative level of the Seventh-day Adventist Church, representing nearly 65,000 congregations and 20 million members worldwide. In the United States, the Adventist Church has more than 5,000 congregations and 1.2 million members. The Church employs thousands of ministers in the United States including in California to carry out its religious mission. In so doing, it places special emphasis on education including at the preschool level. The Pacific Union Conference of Seventh-day Adventists is the regional administrative body for the Adventist Church in the southwestern United States, encompassing the five-state region of Arizona, California, Hawaii, Nevada, and Utah. It includes some 200,000 church members in California, and operates an extensive system of more than 100 schools for thousands of church members as well as the wider public including at the preschool level. Central to their national and state-specific administration of the Church s schools, both the General Conference of Seventh-day 1 Amici and their counsel certify they alone authored this brief, and no other person or entity either authored this brief (in whole or in part) or made any monetary contributions to fund its preparation or submission. (See Cal. Rule of Court 8.200, subd. (c)(3).) 8

Adventists and the Pacific Union Conference of Seventh-day Adventists have a significant and abiding interest in maintaining a robust and meaningful freedom to decide who will minister the Adventist faith in that context. They are therefore concerned about the Labor Commissioner s approach in this case, which imperils the flexibility the Church might require in hiring or serving non- Adventists to carry out its sacred educational mission. Absent their input, Amici fear that this dispute might be misunderstood as an isolated fight between the parties over how a particular religious community operates rather than as a threat to the proper relationship between church and state that Adventists (and so many others) depend on to carry out their faith. For these reasons, Amici ask to file the accompanying brief. July 13, 2018 STANFORD LAW SCHOOL RELIGIOUS LIBERTY CLINIC By: JAMES A. SONNE Counsel for Amici Curiae GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS PACIFIC UNION CONFERENCE OF SEVENTH-DAY ADVENTISTS 9

STATEMENT OF INTEREST The General Conference of Seventh-day Adventists and the Pacific Union Conference of Seventh-day Adventists are the national and regional administrative bodies for the Seventh-day Adventist Church, a Protestant Christian denomination with more than 20 million members. In the United States alone, the Church has more than 1.2 million members; in California, nearly 200,000. In the field of education, the Church operates the largest Protestant school system in the world. The Church is also dedicated to improving the lives of millions through the largest non-profit, Protestant healthcare system in the United States, as well as in comprehensive domestic and international efforts to provide humanitarian aid, combat hunger, fight homelessness, and empower women and children in diverse communities across the globe. Whether directly or in its affiliated entities, the Church cherishes its right to hire and serve not only Adventists but also Christians from other denominations as well as non-christians. For more than a century, the Adventist Church has also been active in promoting freedom of religion for people regardless of their faith. In key Supreme Court cases, it has advocated as amicus curiae to ensure the attendant liberty of both religious entities and individuals. (See, e.g., Advocate Health Care Network v. Stapleton (2017) 137 S. Ct. 1652; EEOC v. Abercrombie & Fitch Stores, Inc. (2015) 135 S. Ct. 2028.) Notably, as amicus in the case where the Court ratified the ministerial exception at issue here, Hosanna- Tabor Evangelical Church and School v. EEOC (2012) 565 U.S. 171, the Church emphasized that the ability of religious entities to 10

manage their personnel lies at the core of the First Amendment. Among its fears was state interference in the employment of those who carry out its ministries. (See Brief for the General Conference of Seventh-day Adventists as Amicus Curie Supporting Petitioner (2011) 27 [urging that, absent the ministerial exception, the state could impose other forms of ministerial licensing ].) Likewise, the Church is concerned that the Commissioner s argument against the ministerial exception as it applies to certain of Respondent s preschool teachers would unconstitutionally limit that exception to favored groups and practices. Specifically, the Commissioner takes the disturbing position that the exception cannot apply where the job in question is filled by someone outside the religious entity s faith, as the Commissioner understands it. Moreover, and in a particularly alarming way, the Commissioner insinuates courts should also discount the ministerial exception for a religious entity s positions that serve those outside its faith and again, as the Commissioner defines and understands that faith. This insistence on religious orthodoxy in hiring and service is troubling because it undermines the inclusive environment that Seventh-day Adventists, and, for that matter, many other faiths, might provide in and through their various ministries. Legally, the Commissioner s position imposes an unconstitutional test that favors religious segregation and, in so doing, improperly entangles the state in policing religiosity. Practically, the Commissioner s position forces religious entities to forego inclusive hiring and serving practices that might be central to their beliefs, harming their ability to carry out their missions as they understand them. 11

INTRODUCTION The ministerial exception is rooted in the First Amendment and has long been recognized as ensuring a core principle of church-state separation. In 2012, the Supreme Court ratified the exception, observing that religious entities must have the 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 & School v. EEOC (2012) 565 U.S. 171, 186 [internal quotation marks omitted].) Notably, this power extends beyond the formal leading of worship and into criteria for all ministerial roles and service matters that can be just as central to how a religious entity preaches, teaches, and carries out its mission, and can also encompass any manner of approaches consistent with the entity s self-understanding. The present case concerns the government substituting its judgment for a religious entity s in a number of improper ways. Of particular concern is the state s seeking to confine the ministerial exception to positions filled only by members of the entity s own faith, where the Commissioner argues that the Stephen S. Wise Temple s decision to hire certain non-jews as preschool teachers renders those positions outside the exception. In other words, because those who teach for the Temple are, in the Commissioner s view, insufficiently orthodox, the ministerial exception cannot apply to those jobs. Similarly, the Commissioner insinuates, the Temple s preschool-teacher positions should further be taken less seriously as qualifying for the ministerial exception because, through them, the Temple serves non-jewish children. 12

According to the Commissioner, therefore, the constitutional value of an otherwise-valid ministerial position is tainted simply by the employing entity s willingness to be inclusive when hiring for or deploying that post. But this stingy and arguably theocratic approach, which compels a state-determined orthodoxy in hiring and service, violates the First Amendment s core guarantee of religious autonomy. And not only are certain religious entities penalized for deviating from this conformist approach, they also lose the ability to live out their faith as they understand it. Fortunately, the Temple s more inclusive reading of the ministerial exception would prevent the state from impermissibly second-guessing whether a religious entity s hiring or service practices in or through its ministers are sufficiently orthodox. (See West Virginia Board of Educ. v. Barnette (1943) 319 U.S. 624, 642 [ If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. ].) Indeed, allowing a religious entity to preach and practice inclusion through ministerial hiring and service respects its freedom to structure and minister to those both within and outside the church as its conscience demands. After all, isn t that what it s all about? Like the Temple, the Seventh-day Adventist Church believes it should have the freedom to serve and hire people of its choice in carrying out its sacred ministries. The Church, for example, is dedicated to improving the lives of millions through a multifaceted, dynamic, and high-touch mission of education, healthcare, and 13

humanitarian work, and there is not nor should there be one way of carrying out that mission. But the Commissioner s insular view of the ministerial exception would dishonor the Church s autonomy to hire those it and not the state deems qualified to carry out relevant ministerial functions in these areas so central to the Church s identity. Moreover, the Commissioner s approach would pressure the Church to necessarily screen and reject those outside its faith, diminishing not only its ability to fully practice its religion as it understands it but also infringing on its ability to serve others in accord with that call to the detriment of all. In addition to these fundamental structural reasons, the Commissioner s cramped reading of the ministerial exception troubles the Seventh-day Adventist Church for two practical reasons as well. First, as a minority faith, the Adventist population is relatively small and commonly diffuse. The Commissioner s test therefore disproportionately impacts those entities who may lack the numbers to hire or serve exclusively within the faith, especially in less densely populated areas. Second, Adventists often serve poorer communities. Imposing an orthodoxy test for hiring and serving, therefore, ignores the reality that they might not be able to afford to discriminate even if they wanted to. These practical concerns are surely not limited to Adventists, but rather would be shared by any minority faith that lacks the population or resources to live up to the Commissioner s expectations. This Court should affirm summary judgment for the Temple, and reject the narrow and discriminatory view of the ministerial exception urged by the Labor Commissioner. 14

BACKGROUND Before proceeding to argument, we offer a quick summary of the two problematic points raised by the Commissioner s opening brief on the matter of ministerial hiring and service. First, the Commissioner urges at the outset of both her introduction and argument that teachers at the Temple s preschool are not ministerial employees because they are not required to be members of the Jewish faith. (AOB 7; see also AOB 36 [emphasizing that the Temple does not require its teachers to be Jewish or religious at all ].) The Commissioner then returns again and again to the point, stressing that the teaching staff at the Temple s preschool is diverse in their spiritual beliefs, many are not Jewish, and some belong to other faiths. (AOB 12-13.) To illustrate, the Commissioner cites the presence on the faculty of two Catholics and someone who grew up in a secular Jewish home where Christmas and Easter were celebrated. (AOB 13-16.) Second, the Commissioner also stresses at the outset of both her introduction and statement of facts that the Temple s preschool is open to families of all faiths. (AOB 7; see also AOB 10.) And, again, to illustrate the Commissioner observes that the school s students include Christians and Muslims. (AOB 10.) Admittedly, the Commissioner fails to mention the point again in its legal argument, but its decision to include the non-jewish students in its statement of facts makes it a matter worthy of attention and, as described below, concern. (See Cal. Rule of Court 8.204, subd. (a)(2)(c) [limiting statement of facts to significant matters]; see also Eisenberg et al., Cal. Practice 15

Guide: Civil Appeals and Writs 9:128 (The Rutter Group 2017) [emphasizing that the statement of facts should include only those facts necessary to an understanding of the overall background of the case and the specific issues presented on the appeal (emphasis in original)].) It is thus to each of these two points that we now turn, first as a general legal matter and then with regard to their particular impact on the Adventist Church and its education ministry. ARGUMENT I. The ministerial exception safeguards the autonomy of religious entities to select and employ ministers as they see fit. It does not impose an orthodoxy test. A. In applying the ministerial exception, courts take an approach that focuses on the job rather than the particular person who holds it. Courts applying the ministerial exception have long used a functional approach that focuses on the job at issue, and not the person seeking or holding that job. Notably, one of the earliest and leading examples of this functional approach was the Seventh-day Adventist case of Rayburn v. General Conference of Seventh-day Adventists (4th Cir. 1985) 772 F.2d 1164. In writing for the court there in holding that the ministerial exception applied even though the plaintiff had never been ordained, Judge Wilkinson observed that the exception depends not on any ordination but rather the function of the position in question. (Id. at pp. 1168-69.) Consequently, the Fourth Circuit held, once a court has determined that a position is important to a church s spiritual and pastoral mission, its inquiry ends and includes no evaluation of religious standing. (Id. at p. 1169.) 16

In the years since Rayburn, courts have embraced Judge Wilkinson s framing of the ministerial exception by stressing that the inquiry should focus on the office, not the officeholder. (See, e.g., Coulee Catholic Schools v. Labor & Indus. Review Comm n (2009) 320 Wis. 2d 275, 303-04 [describing functional analysis as truer to the First Amendment s protection of religious freedom ]; Alicea-Hernandez v. Catholic Bishop of Chicago (7th Cir. 2003) 320 F.3d 698, 703 [ In determining whether an employee is considered a minister for the purposes of applying this exception, we do not look to ordination but instead to the function of the position. ]; EEOC v. Roman Catholic Diocese of Raleigh (4th Cir. 2000) 213 F.3d 795, 801 [ Our inquiry thus focuses on the function of the position at issue and not on categorical notions of who is or is not a minister. ]; Starkman v. Evans (5th Cir. 1999) 198 F.3d 173, 177 [applying functional test from Rayburn in holding that choir director s tasks qualified her as a minister].) In Hosanna-Tabor, the Supreme Court faced a situation where the plaintiff teacher was religiously commissioned, so any distinction between the office and officeholder was immaterial; i.e., both informed her qualification for the ministerial exception under the Court s context-specific analysis there. (See Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, supra, 565 U.S. at pp. 190-92 [relying on case-specific criteria].) Indeed, the Court made clear in Hosanna-Tabor that the plaintiff s commissioned status was only an inclusive factor, and even flagged the possibility that lay teachers who were not required to be Lutheran could also be covered by the exception given their performance of the 17

same religious duties. (Id. at pp. 177, 193.) Moreover, as Justices Alito and Kagan observed in concurrence, the Court s ruling did nothing to upset the functional consensus among the courts of appeals including in the Ninth Circuit. (Id. at pp. 203-04 (Alito, J., concurring) [citing Alcazar v. Corp. of Catholic Archbishop of Seattle (9th Cir. 2010) 627 F.3d 1288, 1291].) In any event, lower courts since Hosanna-Tabor have continued to stress the functional approach. (See, e.g., Fratello v. Archdiocese of New York (2d Cir. 2017) 863 F.3d 190, 205 [urging ministerial-exception determination be based primarily on the function[s] plaintiff performs (internal quotation marks omitted)]; Cannata v. Catholic Diocese of Austin (5th Cir. 2012) 700 F.3d 169, 177 [holding it is enough to apply the exception where plaintiff furthered the mission of the church and helped convey its message ]; Temple Emanuel of Newton v. Massachusetts Comm n Against Discrimination (2012) 463 Mass. 472, 486 [applying exception to plaintiff who, regardless of her religious status or training, taught religious subjects at a [religious] school ].) And even where courts have declined to look solely at job functions they have put great weight on them. (See, e.g., Grussgott v. Milwaukee Jewish Day School (7th Cir. 2018) 882 F.3d 655, 661 [adopting totality-of-the-circumstances test but stressing plaintiff s role].) In sum, for more than three decades courts applying the ministerial exception have focused on the job in question, rather than the person filling it, in recognition of the fact that religious entities, and not government officials, should choose who carries out their ministries. 18

B. In focusing on the job, and not the person, the ministerial exception contemplates flexibility to hire ministers of varied religious commitments. 1. Courts have applied the ministerial exception to ministerial offices that religious entities fill with individuals outside the faith. Whether before or after Hosanna-Tabor, courts have made clear that a functional analysis includes the right of religious entities to hire ministers of varying personal connections to their faith including those who are not members of that faith. In EEOC v. Roman Catholic Diocese of Raleigh, for example, the Fourth Circuit applied the exception to a music-director post at a Catholic church even though the church did not require the job be done by a Catholic. (See supra, 213 F.3d at pp. 803-05.) What mattered instead was the director s duties: Because [plaintiff s] primary duties at the Cathedral and its school consisted of the selection, presentation, and teaching of music, which is integral to the spiritual and pastoral mission of the Catholic Church and many other religious traditions, we affirm the judgment of the district court [to apply the exception]. (Id. at p. 797.) Likewise, in Coulee Catholic Schools v. Labor and Industry Review Commission, the Wisconsin Supreme Court applied the ministerial exception to a teacher in a Catholic grade school who was not required to be a Catholic. (See supra, 320 Wis. 2d at pp. 288-89, 324.) In so holding, the court noted that [i]t may seem, at first blush, counterintuitive to call a position ministerial when the person occupying it is not required to be a member of the faith she is ministering. (Id. at p. 322.) But, the court observed, because the 19

teacher s duties required her to participate, model, and teach the faith to the next generation, her position was ministerial. (Id.) Finally, in Grussgott v. Milwaukee Jewish Day School, even though the Seventh Circuit preferred a totality of the circumstances approach to a functional one, it applied the ministerial exception to a teacher at a non-orthodox Jewish day school where the school did not require its teachers to be Jewish and even had an express policy that prohibited discrimination on a religious basis. (See supra, 882 F.3d at pp. 656, 661.) In ruling for the school, the court in Grussgott stressed instead that the plaintiff s integral role in teaching her students about Judaism and the school s motivation in hiring her, in particular, demonstrate that her role furthered the school s religious mission. (Id. at p. 657.) And, the court added, the fact that the school took a non-discriminatory, non-orthodox approach to hiring did not lessen its right to the exception. (Id. at p. 658.) 2 2. The law does not, and should not, penalize religious entities for adopting inclusive hiring practices as a matter of faith or necessity. Religious entities may have many reasons for hiring outside the faith, and it would not only violate the Constitution but also injure the religious vibrancy of our country to penalize them for doing so. For example, the Jewish school in Grussgott took its role 2 Notably, the Court in Hosanna-Tabor did not include the employee s personal religious beliefs as one of the four factors it used there in determining whether the ministerial exception applied. (See Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, supra, 565 U.S. at p. 192.) 20

of ministering to its students seriously, but also wanted to provide inclusive opportunities to teachers and engage in outreach to less orthodox families. (See Grussgott v. Milwaukee Jewish Day School, supra, 882 F.3d at p. 658, 660 [describing school s non-orthodox, religious approach].) Although some might consider it unusual to stress a Jewish education but also refuse to discriminate on the basis of religion, this is a decision for the school alone. (Id. at p. 658 [emphasizing right of school to be inclusive].) As the Seventh Circuit urged, a religious institution does not waive the ministerial exception by representing itself to be an equalopportunity employer. (Id. at p. 658; accord Tomic v. Catholic Diocese of Peoria (7th Cir. 2006) 442 F.3d 1036, 1042, abrogated on other grounds by Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, supra, 565 U.S. 171 [ [T]he ministerial exception... is not subject to waiver or estoppel. ].) Additionally, in some circumstances a religious entity may prefer to hire members of its own faith for ministerial roles but is unable to do so, either because there are no qualified members in the area or because it is facing an unforeseen situation where it must fill an opening. In Hosanna-Tabor, for example, the defendant school s denomination hired more lay teachers than called ones because it faced a shortage of the latter. (See Petitioner s Reply Brief (2011) 28.) But this was hardly a reason to penalize the school, nor would it reduce the burden of government interference. (See, e.g., Rayburn v. General Conference of Seventh- Day Adventists, supra, 772 F.2d at p. 1168 [ [The burden of government interference] is not diminished by the fact that lay 21

church members may on appropriate occasions be called upon to participate in one or more of these activities or to serve in similar capacities in teaching and counseling each other. ].) As Justices Alito and Kagan stressed in their Hosanna-Tabor concurrence, in choosing their messenger the Constitution leaves it to the collective conscience of each religious group. (Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, supra, 565 U.S. at p. 202 (Alito, J., concurring).) Finally, because the government allows religious organizations and schools to discriminate on the basis of religion, it would be counterintuitive to penalize those that choose not to do so. (See 42 U.S.C. 2000e-1(a) & 2000e-2(e)(2) [excluding religious entities and schools from Title VII s religiousdiscrimination prohibitions].) Not all religions discriminate on the basis of religion in hiring ministers, and a court would therefore be effectively preferring one religion over another if it insisted they all do so to qualify for the ministerial exception a clear violation of the First Amendment. (See Larson v. Valente, 456 U.S. 228, 244 (1982) [ The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another. ].) Moreover, by insisting on religious discrimination a court would improperly favor insular over inclusive entities in according a faith-based exception. (See University of Great Falls v. NLRB (D.C. Cir. 2002) 278 F.3d 1335, 1342-43 [striking down agency finding of religious school s labor-law exemption that had contemplated whether the school was sufficiently religious ].) 22

In short, a religious entity s decision to entrust someone outside the fold to carry out its mission is a religious determination that warrants rather than forfeits the constitutional protection afforded by the ministerial exception. II. The ministerial exception safeguards the autonomy of religious entities not to insist on religious discrimination in their service of others. A. Courts apply the ministerial exception no matter the ministry s recipients. Recognizing that religious entities often have missions that include those outside the faith, courts have also not conditioned the ministerial exception on insularity of service. In Penn v. New York Methodist Hospital, for example, the Second Circuit recently applied the exception to a hospital chaplaincy charged with serving both members and non-members of the hospital s faith. ((2d Cir. 2018) 884 F.3d 416, 425-426.) In fact, one of the chief reasons the court dismissed on ministerial grounds was that the hospital insisted the chaplain failed to adequately serve those outside the faith, which the court held would require it to take sides in a religious matter a task forbidden by the First Amendment. (Id. at pp. 428-29 [internal quotation marks omitted].) Similarly, in Shaliehsabou v. Hebrew Home of Greater Washington, the Fourth Circuit applied the ministerial exception to bar the claims of a Jewish nursing-home employee even though the home accept[ed] persons of all faiths. ((4th Cir. 2004) 363 F.3d 299, 301.) In assessing the nursing home s ability to invoke the ministerial exception the court looked not to the religiosity of the home s residents but to its mission to provide elder care in 23

accordance with the precepts of Jewish law and customs and its inclusion of various elements of Judaism (e.g., a rabbi, religious services, a Kosher diet, a mezuzah on doorposts). (Id. at pp. 310-11.) Because the nursing home possessed a substantial religious character, neither its openness to non-jewish residents nor its primarily secular activities in caring for them diminished its right to the exemption. (Id. at 310.) Although the Court in Hosanna-Tabor did not address the point directly, the absence of any requirement in its holding that, to qualify for the ministerial exception, the entity must serve only co-religionists is also instructive. (See Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, supra, 565 U.S. at p. 192 [omitting reference to service in its case-specific test].) In fact, according to the plaintiff in Hosanna-Tabor, the school there serv[ed] substantial numbers of non-lutheran children. (Brief for Respondent Perich (2011) 4.) But again, this was neither a disqualifier nor, frankly, any factor at all in the Court s analysis. Finally, case law on Title VII s statutory exemption for religious discrimination by religious entities offers persuasive support on the right of those entities to serve non-believers without being penalized. In Spencer v. World Vision, Inc., for example, the Ninth Circuit held that a religious entity does not lose its statutory right to discriminate on the basis of religion by serving those outside the faith. ((9th Cir. 2011) 633 F.3d 723, 726-27, 738.) The court noted that to hold otherwise would lead to absurd results as [h]osts of religious organizations including such obviously religious entities as churches or synagogues open their doors to 24

all. (Id. at p. 738.) Similarly, in Little v. Wuerl, the Third Circuit upheld a religious school s right to the statutory exemption even where it is open to hiring those outside the faith. ((3d Cir. 1991) 929 F.2d 944, 946, 951.) B. Serving outside the faith has long been a central tenet among religions, and continues to remain core to many entities missions and identities. For time immemorial, religions have considered helping all those in need a core practice of faith. The Catholic way according to Mother Teresa, for example, is to spread love through a Catholic sisterhood and brotherhood who serve a largely non- Christian community. (Mother Teresa (1995) A Simple Path p. xxvii.) The Qur an, similarly, teaches every life is of paramount importance and Muslims should join with other humanitarians to act as one when confronted with disasters, poverty, and injustice. (See http://irusa.org/mission-vision-and-values/.) Additionally, Sikh scripture proclaims its temples should be open to Sikh and non-sikh alike, a tradition of nourishing the community that stretches back to the early days of the faith. (See http://www.wearesikhs.org/values.) And, most directly here, a core value of Seventh-day Adventist education and healthcare is service to all. (See http://adventisteducation.org/faq.html [urging that a family absolutely [need] not be Adventist to attend its schools]; http://www.adventisthealth.org/pages/faq/common-questions.aspx [urging that a patient absolutely [need] not be Church member].) Even the possibility that religious entities might forfeit the ministerial exception for serving outside the faith would therefore severely curtail the faith-inspired practices of many religions. As 25

Justice Thomas observed in his Hosanna-Tabor concurrence, uncertainty about whether its ministerial designation will be rejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs and practices. (Hosanna- Tabor Evangelical Lutheran Church & School v. EEOC, supra, 565 U.S. at p. 197 (Thomas, J., concurring).) Religious entities fearful of losing the ministerial exception for positions that serve outside the faith would be forced to end outreach programs and ministries core to their religious beliefs. Requiring an insular approach to service evokes the recent regrettable controversy over a proposed rule by the Department of Health and Human Services that would have denied religious entities that serve outside the faith a religious exemption from certain of the requirements of the Affordable Care Act. (See 76 Fed. Reg. 46621 (Aug. 3, 2011).) Regardless the exemption s merits, the limiting rule was abandoned after criticism from multiple religious entities. As the Conference of Catholic Bishops warned at the time, even Jesus would be deemed insufficiently religious to qualify for the [proposed] exemption because he fed and healed people of many different beliefs. (U.S. Conference of Catholic Bishops, Office of the General Counsel, Re: Advance Notice of Proposed Rulemaking on Preventive Services (May 15, 2012) p. 8.) Restricting the ministerial exception to a religious entity s positions that serve only within the faith constrains the religious practices of many. To respect these entities constitutional freedom to practice their faith and preserve diverse, vibrant religious 26

practices in our country, religious entities must have the autonomy to serve outside the faith without losing their rights. III. The Commissioner s discriminatory reading of the ministerial exception threatens the autonomy of the Seventh-day Adventist Church in particular. Seventh-day Adventists believe serving others is a primary feature of their religion. (See http://www.adventist.org/en/service/ humanitarian-work/ [noting Adventists have a deeply held belief in service and it is only by selflessly serving others that [they believe they] become a true reflection of Christ. ].) This outwardlooking approach is especially prominent in Adventist education and healthcare ministries, which are central to living out their faith in glory to God. (See http://adventisteducation.org/faq.html [ From the very beginning, Adventists have focused on the importance of education and healthcare in improving people s lives. ].) The Commissioner s insistence on insularity threatens this important work. As with the Temple, education is of particular importance to Seventh-day Adventists and is inextricable to their faith. Indeed, Adventists trace the importance of education all the way back to the Garden of Eden. (See Ellen G. White (1903) Education 20 [ The system of education instituted at the beginning of the world was to be a model for man throughout all after-time. ].) The mission of Adventist schools is therefore explicitly religious, focusing on knowledge, skills, and understandings to serve God and humanity. (http://adventisteducation.org/abt.html.) A faith-based education is in fact so important to Adventists that they start at the earliest possible age through a program called Early Childhood 27

Education and Care, which offers the nurturance and education of God s precious little ones in safe, nurturing environments that are aligned with the beliefs and values of the Seventh-day Adventist Church. (See http://adventisteducation.org/ecec.html.) Unsurprisingly, therefore, and as with other ministries, the Adventist Church believes it is important to run its schools in ways that honor God. It thus considers many of those employed there to be ministerial employees. But the Church does not necessarily insist all such roles be filled with Adventists, whether as a matter of principle or necessity. Either way, that is its right. To be sure, Seventh-day Adventists largely strive for their teachers to be members of the faith. (See North American Division of Seventh-day Adventists Office of Education, Handbook for Principals of Seventh-day Adventist Schools (2017) 60 [urging that Adventist educators should have a passion for sharing Christ and must hold and maintain denominational certification ].) But Adventist schools in remote regions cannot always hire qualified teachers who share the faith to perform necessary ministerial duties. There are also situations where teachers undergo personal emergencies that require substitutes. Despite the schools best efforts, it is not always possible to find a teacher of the Adventist faith who can carry out ministerial duties. The Labor Commissioner s insistence on an orthodoxy test in hiring therefore threatens one of the Adventist Church s most important ministries, jeopardizing its ability to teach not only its own faithful but all those who benefit (now or in the future) from its schools in California and elsewhere, and in places of need. 28

Similarly, the Commissioner s seeming insistence on insular service threatens Seventh-day Adventists in choosing to open their schools to families of all faiths. Just like the Temple s preschool is willing to serve both Jewish and non-jewish children, the Adventist school system which instructs tens of thousands of students across hundreds of institutions is dedicated to improving lives through education no matter a student s faith. In their schools, one absolutely [need] not be Adventist to go there. (http://adventisteducation.org/faq.html.) Consequently, any effort to restrict the ability of Adventists to extend a warm welcome to non-adventists in the Church s education ministry would gravely harm both the inclusive mission of that sacred ministry as well as the thousands of students and families who benefit as a result particularly in California. CONCLUSION The First Amendment s ministerial exception protects the right of religious entities to be free from state control in deciding how to teach their faith and carry out their sacred missions. That right includes the freedom to choose whom they call to be ministers and whom they serve whether inside or outside the fold. Because the Commissioner s position defies these important principles in an unconstitutional favoring of religious orthodoxy and insularity over flexibility and inclusion to the detriment not 29

only of the Temple but Seventh-day Adventists and many other groups, as well as those they serve it must be rejected. 3 DATED: July 13, 2018 STANFORD LAW SCHOOL RELIGIOUS LIBERTY CLINIC By: JAMES A. SONNE Counsel for Amici Curiae GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS PACIFIC UNION CONFERENCE OF SEVENTH-DAY ADVENTISTS 3 Special thanks to Monica He and Eric Green, who were state-barcertified law students in the Stanford Law School Religious Liberty Clinic this past spring and helped prepare this brief. 30

CERTIFICATE OF WORD COUNT (California Rule of Court 8.204(c)(1)) The text of this brief consists of 5148 words as counted by the Microsoft Word version 2016 word processing program used to generate the brief. DATED: July 13, 2018 James A. Sonne 31

PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Santa Clara, State of California. My business address is Crown Quadrangle, 559 Nathan Abbott Way, Stanford, CA 94305-8610. On July 13, 2018, I served true copies of the following document(s) described as APPLICATION AND AMICUS CURIAE BRIEF OF THE GENERAL CONFERENCE OF SEVENTH-DAY ADVENTISTS AND THE PACIFIC UNION CONFERENCE OF SEVENTH-DAY ADVENTISTS IN SUPPORT OF RESPONDENT on the interested parties in this action as follows: ** SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the trial court judge only at the address listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Mills Legal Clinic at Stanford Law School for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. BY ELECTRONIC FILING / SERVICE: Based on a court order or an agreement of the parties to accept service by e- mail or electronic transmission via Court s Electronic Filing System (EFS) operated by ImageSoft TrueFiling (TrueFiling) as indicated on the attached service list. 32

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 13, 2018, at Stanford, California. Karen Buchanan 33

SERVICE LIST JULIE SU v. STEPHEN S. WISE TEMPLE COA Case No. B275426 LASC Case No. BC520278 Individual / Counsel Served Jeremy B. Rosen, Esq. Felix Shafir, Esq. Joshua C. McDaniel, Esq. HORVITZ & LEVY LLP 3601 West Olive Avenue, 8th Floor Burbank, California 91505-4681 Email: jrosen@horvitzlevy.com fshafir@horvitzlevy.com jmcdaniel@horvitzlevy.com Michael C. Blacher, Esq. David A. Urban, Esq. Hengameh S. Safaei, Esq. LIEBERT CASSIDY WHITMORE A Professional Corporation 6033 West Century Boulevard, 5th Floor Los Angeles, California 90045 Party Represented Defendant and Respondent STEPHEN S. WISE TEMPLE Electronic Copy via Court s Electronic Filing System (EFS) operated by ImageSoft TrueFiling (TrueFiling) Defendant and Respondent STEPHEN S. WISE TEMPLE Electronic Copy via Court s Electronic Filing System (EFS) operated by ImageSoft TrueFiling (TrueFiling) Email: mblacher@lcwlegal.com durban@lcwlegal.com hsafaei@lcwlegal.com David M. Balter, Esq. Division of Labor Standards Enforcement Department of Industrial Relations State of California 455 Golden Gate Avenue, 9th Floor San Francisco, California 94102 Email: DBalter@dir.ca.gov Plaintiff and Appellant JULIE SU, STATE LABOR COMMISSIONER Electronic Copy via Court s Electronic Filing System (EFS) operated by ImageSoft TrueFiling (TrueFiling) 34

Individual / Counsel Served The Honorable Ernest M. Hiroshige Los Angeles Superior Court 111 North Hill Street, Dept. 54 Los Angeles, CA 90012 Party Represented Trial Court Judge Case No. BC520278 Copy via U.S. Mail Office of the Clerk California Court of Appeal Second Appellate District Division Three 300 South Spring Street Second Floor, North Tower Los Angeles, California 90013 Electronic Filing Electronic Copy via Court s Electronic Filing System (EFS) operated by ImageSoft TrueFiling (TrueFiling) Clerk of the Court Supreme Court of California 350 McAllister Street San Francisco, California 94102-3600 Electronic Copy (CRC, Rule 8.212(c)(2)(A)(i)) Electronic Copy via Court s Electronic Filing System (EFS) operated by ImageSoft TrueFiling (TrueFiling) 35