by Jes­si­ca Danesh­var* 

Reli­gious orga­ni­za­tions are con­sti­tu­tion­al­ly pro­tect­ed from undue bur­den from the gov­ern­ment. This pro­tec­tion has been extend­ed to laws that shield employ­ees from employ­er dis­crim­i­na­tion. This “min­is­te­r­i­al excep­tion” is an affir­ma­tive defense reli­gious orga­ni­za­tions uti­lize in response to employ­ment dis­crim­i­na­tion claims made by min­is­ters. The Supreme Court has found that such an excep­tion is appro­pri­ate in a case of employ­ee ter­mi­na­tion, how­ev­er cir­cuits have split on whether the excep­tion cre­ates a cat­e­gor­i­cal bar against all types of employ­ment dis­crim­i­na­tion claims, includ­ing hos­tile work envi­ron­ment claims. This Con­tri­bu­tion argues that the min­is­te­r­i­al excep­tion as applied to hos­tile work envi­ron­ment claims that do not involve tan­gi­ble employ­ment action should be applied spar­ing­ly on a case-by-case basis to safe­guard reli­gious orga­ni­za­tions from uncon­sti­tu­tion­al gov­ern­ment inter­fer­ence while also pro­tect­ing employ­ee rights.

Title VII pro­hibits employ­ment dis­crim­i­na­tion based on race, col­or, reli­gion, sex, and nation­al ori­gin.1 While reli­gious insti­tu­tions have been statu­to­ri­ly grant­ed exemp­tion from reli­gious dis­crim­i­na­tion claims,2 courts have also extend­ed excep­tions to race and sex dis­crim­i­na­tion laws to these insti­tu­tions. This com­mon law excep­tion became known as the “min­is­te­r­i­al excep­tion,” struc­tured as an affir­ma­tive defense.3 This excep­tion was borne out of a Fifth Cir­cuit case, McClure v. Sal­va­tion Army.4 In that case, Mrs. McClure was a min­is­ter for the Sal­va­tion Army, and after she was ter­mi­nat­ed, sued under Title VII of the Civ­il Rights Act of 1965 for sex dis­crim­i­na­tion. Although the Fifth Cir­cuit found that the Sal­va­tion Army qual­i­fied as an “employ­er” under Title VII, it held that state inter­fer­ence with the rela­tion­ship between a reli­gious orga­ni­za­tion and its min­is­ters would vio­late the Reli­gious Claus­es of the First Amend­ment.5 The court cab­ined their opin­ion to pro­tect reli­gious orga­ni­za­tions from a minister’s Title VII claim, as “the rela­tion­ship between an orga­nized church and its min­is­ters is its lifeblood.”6

The Supreme Court has only addressed the min­is­te­r­i­al excep­tion in two cas­es. In Hosan­na-Tabor, the Court affirmed the applic­a­bil­i­ty of the min­is­te­r­i­al excep­tion in a case where the plain­tiff was fired by a Luther­an Church.7 The Court rea­soned that forc­ing a reli­gious orga­ni­za­tion to either accept or reject a min­is­ter based on nondis­crim­i­na­tion prin­ci­ples “intrudes upon more than a mere employ­ment deci­sion.”8 How­ev­er, the Court lim­it­ed its hold­ing to “an employ­ment dis­crim­i­na­tion suit brought on behalf of a min­is­ter, chal­leng­ing her church’s deci­sion to fire her” and did not reach the ques­tion of whether “the excep­tion bars oth­er types of suits.”9

In Our Lady of Guadalupe, the Court found two ele­men­tary school teach­ers ter­mi­nat­ed from Roman Catholic schools to be con­sid­ered “min­is­ters” for the pur­pos­es of apply­ing the min­is­te­r­i­al excep­tion to Age Dis­crim­i­na­tion in Employ­ment Act (“ADEA”) and Amer­i­cans with Dis­abil­i­ties Act (“ADA”) claims.10 The Court ground­ed its accep­tance of the min­is­te­r­i­al excep­tion in the church auton­o­my doc­trine, which stems from the First Amend­ment and pro­tects a reli­gious organization’s right to absolute auton­o­my “in mat­ters of faith and doc­trine and in close­ly linked mat­ters of inter­nal gov­ern­ment.”11

Notably, these two cas­es have only accept­ed the min­is­te­r­i­al excep­tion in employ­ment dis­crim­i­na­tion cas­es where the reli­gious orga­ni­za­tion has tak­en tan­gi­ble action against the plain­tiff by ter­mi­nat­ing their employ­ment. The Court has nev­er con­sid­ered whether the min­is­te­r­i­al excep­tion cre­ates a cat­e­gor­i­cal bar against all claims of employ­ment dis­crim­i­na­tion, includ­ing the more abstract hos­tile work envi­ron­ment claims. This Con­tri­bu­tion argues that, rather than broad­ly extend­ing the min­is­te­r­i­al excep­tion, courts should take a case-by-case approach and only apply the excep­tion when adju­di­cat­ing the claim would require also adju­di­cat­ing reli­gious doc­trine or inter­nal reli­gious procedures.

Cir­cuit courts have begun to decide whether the min­is­te­r­i­al excep­tion cre­ates such a cat­e­gor­i­cal bar, with mixed results. These cas­es con­sid­er hos­tile work­place envi­ron­ment claims under Title VII, which require the plain­tiff to show that the work­place envi­ron­ment harass­ment was sub­jec­tive­ly and objec­tive­ly severe or per­va­sive enough to alter the terms and con­di­tions of their employ­ment, where such alter­ation is not lim­it­ed to tan­gi­ble con­se­quences.12 In a stan­dard case, once a plain­tiff meets this bur­den, the defen­dant is able to assert a so-called Ellerth/Faragher affir­ma­tive defense, where they must show they have a rea­son­able pol­i­cy of pre­vent­ing or mit­i­gat­ing harass­ment and the plain­tiff unrea­son­ably failed to take advan­tage of it.13

The Ninth Cir­cuit in Bol­lard,14 and sub­se­quent­ly in Elvig,15 found that the min­is­te­r­i­al excep­tion did not apply to a plaintiff’s hos­tile work envi­ron­ment claims that did not result in tan­gi­ble action.16 In doing so, the court rea­soned that the church auton­o­my doc­trine was not absolute and was only trig­gered when a defen­dant gave reli­gious expla­na­tions for the alleged harass­ment.17 How­ev­er, the Tenth and Sev­enth Cir­cuits dis­agreed. The Tenth Cir­cuit in Skrzypcza­ck reject­ed the Ninth Circuit’s hold­ing that “a hos­tile work envi­ron­ment claim brought by a min­is­ter does not impli­cate a church’s spir­i­tu­al func­tions”; the court instead agreed with Elvig’s dis­sent, that such a claim may “involve gross sub­stan­tive and pro­ce­dur­al entan­gle­ment with the Church’s core func­tions, its poli­ty, and its auton­o­my.”18 Sim­i­lar­ly, the Sev­enth Cir­cuit in Demkovich found the doc­trine absolute since “[a] reli­gious orga­ni­za­tion should not be forced to choose between prof­fer­ing a reli­gious jus­ti­fi­ca­tion or risk­ing legal lia­bil­i­ty.”19 These deci­sions afford a reli­gious orga­ni­za­tion blan­ket pro­tec­tion from even being required to ver­bal­ize their reli­gious rea­son for an action, and unrea­son­ably bars min­is­ter employ­ees from bring­ing oth­er­wise viable harass­ment claims.

In con­trast, the Ninth Circuit’s case-by-case approach to deter­min­ing whether the min­is­te­r­i­al excep­tion applies giv­en the reli­gious organization’s defense more appro­pri­ate­ly bal­ances both inter­ests. The First Amend­ment does not auto­mat­i­cal­ly “shield[] the Church from its oblig­a­tion to pro­tect its employ­ees from harass­ment when extend­ing such pro­tec­tion would not con­tra­vene the Church’s doc­tri­nal pre­rog­a­tives or trench upon its pro­tect­ed min­is­te­r­i­al deci­sions.”20 This Con­tri­bu­tion con­tends that the Ninth Circuit’s approach should be adopt­ed by the remain­ing cir­cuits.21

The Reli­gious Claus­es of the First Amend­ment sim­ply state “Con­gress shall make no law respect­ing an estab­lish­ment of reli­gion, or pro­hibit­ing the free exer­cise there­of.”22 Enact­ed in 1789, this amend­ment is both lin­guis­ti­cal­ly ambigu­ous23 and void of suf­fi­cient leg­isla­tive his­to­ry to facil­i­tate a clear under­stand­ing of what the Founders meant when they wrote these six­teen words.24 Over­all, there were 24 dif­fer­ent drafts of the Reli­gious Claus­es before the one in the Bill of Rights was agreed upon.25 The Founders believed in “free­dom of con­science,” which pro­tect­ed the “free­dom to choose, change, or dis­card reli­gious beliefs, prac­tices or asso­ci­a­tions … [and free­dom] from offi­cial or pop­u­lar coer­cion.”26 The pur­pose of the sep­a­ra­tion of church and state was to keep reli­gious orga­ni­za­tions and gov­ern­ments “free and focused on their core mis­sions of soul­craft and state­craft.”27 The dis­es­tab­lish­ment of a gov­ern­men­tal­ly sanc­tioned reli­gion was in fur­ther­ance of this pur­pose,28 but how far it was to go was nev­er deter­mined. Instead, state con­sti­tu­tions “formed the con­sti­tu­tion­al back­bone of reli­gious free­dom in the Unit­ed States for the first 150 years of the repub­lic.”29 In the eigh­teenth cen­tu­ry, both the Con­sti­tu­tions of Penn­syl­va­nia and New Jer­sey pro­tect­ed those prac­tic­ing reli­gion from abridg­ment of their civ­il rights.30 The Con­sti­tu­tion of New York allowed free­dom of reli­gion “[p]rovided, That the lib­er­ty of con­science, here­by grant­ed, shall not be so con­strued as to excuse acts of licen­tious­ness, or jus­ti­fy prac­tices incon­sis­tent with the peace or safe­ty of this State.”31

How­ev­er, what hap­pens when it is those with­in the reli­gious orga­ni­za­tion itself who abridge an individual’s civ­il rights?32 Admit­ted­ly, reli­gious lib­er­ty pro­tec­tions “exist[] in ten­sion with fed­er­al and state anti-dis­crim­i­na­tion laws.”33 Title VII rec­og­nized this by explic­it­ly exempt­ing reli­gious insti­tu­tions from reli­gious dis­crim­i­na­tion claims while stay­ing silent on the issue of nation­al ori­gin, race, or sex.34 Title VII was cre­at­ed “to achieve equal­i­ty of employ­ment oppor­tu­ni­ties and remove bar­ri­ers that have oper­at­ed in the past to favor an iden­ti­fi­able group of white employ­ees over oth­er employ­ees.”35 Title VII there­fore cre­ates an “inter­est of the high­est order” which can “over­bal­ance legit­i­mate claims to the free exer­cise of reli­gion”36 as long as such bur­dens on reli­gious free­dom are too large to be per­mis­si­ble. While inter­fer­ing with the organization’s free­dom in choos­ing their min­is­ters would “rearrange the rela­tion­ship between church and state,”37 pre­vent­ing or rem­e­dy­ing dis­crim­i­na­to­ry con­duct by indi­vid­u­als with­in the orga­ni­za­tion would not. As the Fifth Cir­cuit artic­u­lat­ed, the min­is­te­r­i­al rela­tion­ship with the reli­gious orga­ni­za­tion is its “lifeblood.”38 But this should be viewed as a nice lit­er­ary metaphor, rather than evi­dence of a “fun­da­men­tal­ly dis­tinct”39 employ­ment rela­tion­ship between the min­is­ter and the reli­gious orga­ni­za­tion. Just like a cor­po­rate lawyer rep­re­sents a com­pa­ny and not the indi­vid­ual employ­ees,40 the Reli­gious Claus­es pro­tect reli­gious insti­tu­tions, not the mem­bers with­in them.41 It is over­reach­ing to say that the Reli­gious Claus­es pro­tect the parts of the work­place envi­ron­ment that are not in fur­ther­ance of the organization’s mis­sion. Unlike a minister’s exe­cu­tion of their duties or their demo­tion or ter­mi­na­tion from the orga­ni­za­tion, the work­place envi­ron­ment and any harass­ment with­in it is dis­tinct and sep­a­rate from the organization’s reli­gious mis­sion. There is no fur­ther­ance of the mis­sion by or with­in the alleged harass­ment.42 A plaintiff’s Title VII claim alleg­ing that harass­ment has cre­at­ed a hos­tile work envi­ron­ment, rather than a tan­gi­ble action, is essen­tial­ly claim­ing that the actions under­tak­en by anoth­er employ­ee that harmed the plain­tiff were unre­lat­ed to the nature of the work.43 The reli­gious organization’s lia­bil­i­ty is then deter­mined by its response to this spe­cif­ic non-employ­ment-relat­ed action. This is anal­o­gous to how tort or crim­i­nal claims are han­dled, where min­is­ters are able to sue reli­gious orga­ni­za­tions unim­ped­ed.44

Even where a defen­dant employ­ee alleges a reli­gious jus­ti­fi­ca­tion for their actions, a court need not pry into whether the rea­son giv­en is rea­son­able, but rather only that it is the real rea­son for the alleged actions. Deter­min­ing whether the jus­ti­fi­ca­tion giv­en is pre­text does not impli­cate reli­gious free­dom;45 rather, it can be argued that it pro­tects such free­dom, as using false jus­ti­fi­ca­tions for harass­ing behav­ior can under­mine a religion’s integri­ty in its mis­sion. A court can then eval­u­ate, case-by-case, whether mov­ing for­ward with the claim would impli­cate the First Amend­ment. If it does not, the orga­ni­za­tion still has the abil­i­ty to assert the Faragher/Ellerth defense like oth­er employ­ers. Argu­ing a reli­gious organization’s pro­ce­dure is rea­son­able in response to a harass­ment claim does not auto­mat­i­cal­ly cre­ate suf­fi­cient entan­gle­ment to impli­cate the First Amend­ment, con­trary to the Sev­enth Circuit’s asser­tion.46 Sub­stan­tive entan­gle­ment con­cerns itself with gov­ern­men­tal impo­si­tion on the way a reli­gious orga­ni­za­tion inter­nal­ly func­tions and its beliefs about its own reli­gious doc­trine.47 This defense does not look at the moti­va­tion behind a pro­ce­dure, but the result­ing actions alone; it focus­es on “sec­u­lar judg­ments about the nature and sever­i­ty of the harass­ment and what mea­sures, if any, were tak­en by the [orga­ni­za­tion] to pre­vent or cor­rect it.”48 The law does not con­cern itself with why a pro­ce­dure was imple­ment­ed, only that it could, if uti­lized, assist the affect­ed employ­ee. While courts should of course be care­ful not to infringe on reli­gious free­dom, the “abil­i­ty of the dis­trict court to con­trol dis­cov­ery[] can pre­vent a wide-rang­ing intru­sion into sen­si­tive reli­gious mat­ters” with­out bar­ring an action entire­ly.49 Accord­ing­ly, a case-by-case fac­tu­al inquiry into the exception’s applic­a­bil­i­ty pro­tects min­is­ters against actions that are not in fur­ther­ance of a reli­gious organization’s mis­sion while pre­serv­ing the Reli­gious Claus­es’ pro­tec­tions of reli­gious orga­ni­za­tions, and should there­fore be embraced broad­ly by courts.

* Jes­si­ca Danesh­var is a J.D. Can­di­date (2023) at New York Uni­ver­si­ty School of Law. This Con­tri­bu­tion does not nec­es­sar­i­ly reflect the views of the author.

1. 42 U.S.C. § 2000e‑2(a) (1964).

2. 42 U.S.C. § 2000e‑1(a) (1972).

3. See Hosan­na-Tabor Evan­gel­i­cal Luther­an Church & Sch. v. E.E.O.C., 565 U.S. 171, 195 n.4 (2012).

4. McClure v. Sal­va­tion Army, 460 F.2d 553 (5th Cir. 1972).

5. Id. at 560.

6. Id. at 558.

7. Hosan­na-Tabor, 565 U.S. at 171.

8. Id. at 188.

9. Id. at 196.

10. Our Lady of Guadalupe Sch. v. Mor­ris­sey-Berru, 140 S. Ct. 2049, 2061 (2020).

11. Id.

12. See Mer­i­tor Sav. Bank, FSB v. Vin­son, 477 U.S. 57, 64 (1986) (“[T]he lan­guage of Title VII is not lim­it­ed to ‘eco­nom­ic’ or ‘tan­gi­ble’ dis­crim­i­na­tion. The phrase ‘terms, con­di­tions, or priv­i­leges of employ­ment’ evinces a con­gres­sion­al intent to strike at the entire spec­trum of dis­parate treat­ment of men and women in employ­ment.” (cita­tions and inter­nal quo­ta­tions omitted)).

13. See Fer­raro v. Kell­wood Co., 440 F.3d 96, 101 (2d Cir. 2006) (“The defense com­pris­es two ele­ments: that (1) the employ­er exer­cised rea­son­able care to pre­vent and cor­rect prompt­ly any [dis­crim­i­na­to­ry] harass­ing behav­ior, and (2) the plain­tiff employ­ee unrea­son­ably failed to take advan­tage of any pre­ven­tive or cor­rec­tive oppor­tu­ni­ties pro­vid­ed by the employ­er or to avoid harm oth­er­wise.” (inter­nal quo­ta­tions omit­ted) (cit­ing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burling­ton Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998))).

14. Bol­lard v. Cal­i­for­nia Province of the Soc’y of Jesus, 196 F.3d 940, 947 (9th Cir. 1999).

15. Elvig v. Calvin Pres­by­ter­ian Church, 375 F.3d 951, 963 (9th Cir. 2004), en banc hear­ing denied, 397 F.3d 790 (9th Cir. 2005).

16. See id. at 960–63 (“[E]ach tan­gi­ble employ­ment action Elvig alleges, impli­cates the [church auton­o­my doc­trine] .… [The] alleged deci­sions [for the defen­dants] to engage in and per­mit harass­ment are insuf­fi­cient to trig­ger the min­is­te­r­i­al excep­tion.”); Bol­lard, 196 F.3d at 947 (“[T]his is not a case about the Jesuit order’s choice of rep­re­sen­ta­tive, a deci­sion to which we would sim­ply defer with­out fur­ther inquiry. … But, in our view, it strays too far from the ratio­nale of the Free Exer­cise Clause to extend con­sti­tu­tion­al pro­tec­tion to this sort of dis­ci­pli­nary inaction .…”).

17. Bol­lard, 196 F.3d at 947 (“The Free Exer­cise ratio­nales sup­port­ing an excep­tion to Title VII are miss­ing. The Jesuits do not offer a reli­gious jus­ti­fi­ca­tion for the harass­ment Bol­lard alleges .…”).

18. Id. at 1245 (inter­nal quo­ta­tions omit­ted) (cit­ing Elvig, 375 F.3d at 976 (Trott, J., dissenting)).

19. Demkovich v. St. Andrew the Apos­tle Parish, Calumet City, 3 F.4th 968, 982 (7th Cir. 2021) (en banc).

20. Elvig, 375 F.3d at 964.

21. See Rachel Casper, When Harass­ment at Work Is Harass­ment at Church: Hos­tile Work Envi­ron­ments and the Min­is­te­r­i­al Excep­tion, 25 U. Pa. J.L. & Soc. Change 11, 14 (2021) (argu­ing that a cat­e­gor­i­cal ban on min­is­te­r­i­al hos­tile work envi­ron­ment claims would be “cat­a­stroph­ic,” and both reli­gious free­dom and employ­ee rights can be pro­tect­ed simul­ta­ne­ous­ly through a case-by-case approach).

22. U.S. Con­st. amend. I.

23. See, e.g., John Witte, Jr., Back to the Sources? What’s Clear and Not So Clear About the Orig­i­nal Intent of the First Amend­ment, 47 B.Y.U. L. Rev. 1303, 1357–71 (2022) (dis­cussing the mul­ti­tude of lin­guis­tic ambi­gu­i­ties inher­ent in the Reli­gious Clauses).

24. See id. at 1307 (dis­cussing how there are only three pages of Con­gres­sion­al records on these debates, none of which include records of debates dur­ing the final stages of draft­ing the amendment).

25. See id. at 1350.

26. Id. at 1308–9.

27. Id. at 1312–13.

28. See id. at 1316 (explain­ing that the Framers believed dis­es­tab­lish­ment of reli­gion could pre­vent gov­ern­ment from man­dat­ing, favor­ing, or sin­gling out for pref­er­en­tial treat­ment cer­tain faiths or reli­gious beliefs).

29. Id. at 1323.

30. See id. at 1319 (com­par­ing Pennsylvania’s and New Jersey’s con­sti­tu­tion­al reli­gious free­dom protections).

31. Id. at 1322 (cit­ing N.Y. Con­st. art. 38 (1777)).

32. See, e.g., Elvig, 375 F.3d at 974–75 (Trott, J., dis­sent­ing) (argu­ing that the plaintiff’s reli­gious vow to the Church pre­clud­ed her abil­i­ty to bring a Title VII suit).

33. Meghan Gold­en, Pierc­ing the Min­is­te­r­i­al Excep­tion: An Endeav­or to Hold Reli­gious Employ­ers Account­able for Harass­ing Behav­ior, 56 UIC L. Rev. 73, 81 (2023).

34. See Jes­si­ca R. Var­tan­ian, Con­fes­sions of the Church: Dis­crim­i­na­to­ry Prac­tices by Reli­gious Employ­ers and Jus­ti­fi­ca­tions for A More Nar­row Min­is­te­r­i­al Excep­tion, 40 U. Tol. L. Rev. 1049, 1056 (2009).

35. Grig­gs v. Duke Pow­er Co., 401 U.S. 424, 429–30 (1971).

36. Ray­burn v. Gen. Conf. of Sev­enth-Day Adven­tists, 772 F.2d 1164, 1169 (4th Cir. 1985); see also Werft v. Desert Sw. Ann. Conf. of Unit­ed Methodist Church, 377 F.3d 1099, 1102 (9th Cir. 2004) (“There is no ques­tion that elim­i­na­tion of discrimination—the goal of Title VII—is a com­pelling state inter­est of the high­est order.” (inter­nal quo­ta­tions omit­ted) (cit­ing Ray­burn, 772 F.2d at 1169)).

37. See Ray­burn, 772 F.2d at 1169.

38. McClure, 460 F.2d at 558.

39. Demkovich, 3 F.4th at 978.

40. See In re Grand Jury Sub­poe­na, 274 F.3d 563, 571 (1st Cir. 2001) (“The default assump­tion is that the attor­ney only rep­re­sents the cor­po­rate enti­ty, not the indi­vid­u­als with­in the cor­po­rate sphere, and it is the indi­vid­u­als’ bur­den to dis­pel that presumption.”).

41. See Demokovich, 3 F.4th at 982 (“[T]he pro­tec­tion of the min­is­te­r­i­al excep­tion inures to the reli­gious orga­ni­za­tions, not to the indi­vid­u­als with­in them.”).

42. See id. at 990 (“[A] hos­tile work envi­ron­ment, by def­i­n­i­tion, sim­ply is not a per­mis­si­ble means of exert­ing (con­sti­tu­tion­al­ly pro­tect­ed) ‘con­trol’ over employ­ees and accom­plish­ing the mis­sion of the busi­ness or reli­gious orga­ni­za­tion.” (Hamil­ton, J., dissenting)).

43. As com­pared to what can be con­sid­ered employ­ment action by a reli­gious orga­ni­za­tion, such as how the Roman Catholic Church ordains only male priests and the pro­hi­bi­tion of hir­ing gay and les­bian employ­ees in reli­gious orga­ni­za­tions that view homo­sex­u­al­i­ty as a sin. Var­tan­ian, supra note 34, at 1049.

44. See Casper, supra note 21, at 30 (not­ing how min­is­ters are per­mit­ted to bring tort claims that do not impli­cate the reli­gious organization’s con­trol over min­is­ter selec­tion and admin­is­tra­tion of their duties); see also Gold­en, supra note 33, at 100–01 (“[P]riests and oth­er min­is­te­r­i­al employ­ees are not immune from crim­i­nal prosecution.”).

45. See Var­tan­ian, supra note 34, at 1057 (dis­tin­guish­ing the imper­mis­si­bil­i­ty of find­ing a reli­gious jus­ti­fi­ca­tion immoral or unrea­son­able from the per­mis­si­ble find­ing of pretext).

46. See Demkovich, 3 F.4th at 981 (explain­ing that purs­ing a hos­tile work envi­ron­ment claim will lead to exces­sive inquiry by the courts and run afoul of the Estab­lish­ment Clause).

47. See Rweye­ma­mu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008) (“Entan­gle­ment may be substantive—where the gov­ern­ment is placed in the posi­tion of decid­ing between com­pet­ing reli­gious views—or procedural—where the state and church are pit­ted against one anoth­er in a pro­tract­ed legal bat­tle.” (cita­tions and inter­nal quo­ta­tions omitted)).

48. Bol­lard, 196 F.3d at 950.

49. Id.