CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

[711] GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion, post, p. 726.

David Goldberger argued the cause for petitioners. With him on the briefs were Marc D. Stern and Benson A. Wolman.

Acting Solicitor General Clement argued the cause for the United States as respondent under this Court's Rule 12.6 in support of petitioners. With him on the briefs were Assistant Attorney General Keisler, Patricia A. Millett, Mark B. Stern, and Michael S. Raab.

Douglas R. Cole, State Solicitor of Ohio, argued the cause for respondents. With him on the brief were Jim Petro, Attorney General, Stephen P. Carney, Senior Deputy Solicitor, and Todd R. Marti and Franklin E. Crawford, Assistant Solicitors.^[1]

[712] JUSTICE GINSBURG delivered the opinion of the Court.

Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA or Act), 114 Stat. 804, 42 U. S. C. § 2000cc-1(a)(1)-(2), provides in part: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the burden furthers "a compelling governmental interest," and does so by "the least restrictive means." Plaintiffs below, petitioners here, are current and former inmates of institutions operated by the Ohio Department of Rehabilitation and Correction and assert that they are adherents of "nonmainstream" religions: the Satanist, Wicca, and Asatru religions, and the Church of Jesus Christ Christian.^[2] They complain that Ohio prison officials (respondents here), in violation of RLUIPA, have failed to accommodate their religious exercise

[713] "in a variety of different ways, including retaliating and discriminating against them for exercising their nontraditional faiths, denying them access to religious literature, denying them the same opportunities for group worship that are granted to adherents of mainstream religions, forbidding them to adhere to the dress and appearance mandates of their religions, withholding religious ceremonial items that are substantially identical to those that the adherents of mainstream religions are permitted, and failing to provide a chaplain trained in their faith." Brief for United States 5.

For purposes of this litigation at its current stage, respondents have stipulated that petitioners are members of bona fide religions and that they are sincere in their beliefs. Gerhardt v. Lazaroff, 221 F. Supp. 2d 827, 833 (SD Ohio 2002).

In response to petitioners' complaints, respondent prison officials have mounted a facial challenge to the institutionalized-persons provision of RLUIPA; respondents contend, inter alia, that the Act improperly advances religion in violation of the First Amendment's Establishment Clause. The District Court denied respondents' motion to dismiss petitioners' complaints, but the Court of Appeals reversed that determination. The appeals court held, as the prison officials urged, that the portion of RLUIPA applicable to institutionalized persons, 42 U. S. C. § 2000cc-1, violates the Establishment Clause. We reverse the Court of Appeals' judgment.

"This Court has long recognized that the government may . . . accommodate religious practices . . . without violating the Establishment Clause." Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U. S. 136, 144-145 (1987). Just last Term, in Locke v. Davey, 540 U. S. 712 (2004), the Court reaffirmed that "there is room for play in the joints between" the Free Exercise and Establishment Clauses, allowing the government to accommodate religion beyond free exercise requirements, without offense to the Establishment Clause. [714] Id., at 718 (quoting Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 669 (1970)). "At some point, accommodation may devolve into `an unlawful fostering of religion.'" Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 334-335 (1987) (quoting Hobbie, 480 U. S., at 145). But § 3 of RLUIPA, we hold, does not, on its face, exceed the limits of permissible government accommodation of religious practices.

I

A

RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens, consistent with this Court's precedents. Ten years before RLUIPA's enactment, the Court held, in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 878-882 (1990), that the First Amendment's Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct. In particular, we ruled that the Free Exercise Clause did not bar Oregon from enforcing its blanket ban on peyote possession with no allowance for sacramental use of the drug. Accordingly, the State could deny unemployment benefits to persons dismissed from their jobs because of their religiously inspired peyote use. Id., at 874, 890. The Court recognized, however, that the political branches could shield religious exercise through legislative accommodation, for example, by making an exception to proscriptive drug laws for sacramental peyote use. Id., at 890.

Responding to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq. RFRA "prohibits `[g]overnment' from `substantially burden[ing]' a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden `(1) [715] is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.'" City of Boerne v. Flores, 521 U. S. 507, 515-516 (1997) (brackets in original) (quoting § 2000bb-1). "[U]niversal" in its coverage, RFRA "applie[d] to all Federal and State law," id., at 516 (quoting former § 2000bb-3(a)), but notably lacked a Commerce Clause underpinning or a Spending Clause limitation to recipients of federal funds. In City of Boerne, this Court invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress' remedial powers under the Fourteenth Amendment. Id., at 532-536.^[3]

Congress again responded, this time by enacting RLUIPA. Less sweeping than RFRA, and invoking federal authority under the Spending and Commerce Clauses, RLUIPA targets two areas: Section 2 of the Act concerns land-use regulation, 42 U. S. C. § 2000cc;^[4] § 3 relates to religious exercise by institutionalized persons, § 2000cc-1. Section 3, at issue here, provides that "[n]o [state or local] government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the government shows that the burden furthers "a compelling governmental interest" and does so by "the least restrictive means." § 2000cc-1(a)(1)-(2). The Act defines "religious exercise" to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." § 2000cc-5(7)(A). Section 3 applies when "the substantial burden [on religious exercise] is imposed in a program or [716] activity that receives Federal financial assistance,"^[5] or "the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes." § 2000cc-1(b)(1)-(2). "A person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." § 2000cc-2(a).

Before enacting § 3, Congress documented, in hearings spanning three years, that "frivolous or arbitrary" barriers impeded institutionalized persons' religious exercise. See 146 Cong. Rec. S7774, S7775 (July 27, 2000) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) (hereinafter Joint Statement) ("Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways.").^[6] To secure [717] redress for inmates who encountered undue barriers to their religious observances, Congress carried over from RFRA the "compelling governmental interest"/"least restrictive means" standard. See id., at S7774. Lawmakers anticipated, however, that courts entertaining complaints under § 3 would accord "due deference to the experience and expertise of prison and jail administrators." Id., at S7775 (quoting S. Rep. No. 103-111, p. 10 (1993)).

B

Petitioners initially filed suit against respondents asserting claims under the First and Fourteenth Amendments. After RLUIPA's enactment, petitioners amended their complaints to include claims under § 3. Respondents moved to dismiss the statutory claims, arguing, inter alia, that § 3 violates the Establishment Clause. 221 F. Supp. 2d, at 846. Pursuant to 28 U. S. C. § 2403(a), the United States intervened in the District Court to defend RLUIPA's constitutionality. 349 F. 3d 257, 261 (CA6 2003).

Adopting the report and recommendation of the Magistrate Judge, the District Court rejected the argument that § 3 conflicts with the Establishment Clause. 221 F. Supp. 2d, at 846-848. As to the Act's impact on a prison's staff and general inmate population, the court stated that RLUIPA "permits safety and security—which are undisputedly compelling state interests—to outweigh an inmate's claim to a religious accommodation." Id., at 848. On the thin record before it, the court declined to find, as respondents had urged, that enforcement of RLUIPA, inevitably, would compromise prison security. Ibid.

On interlocutory appeal pursuant to 28 U. S. C. § 1292(b), the Court of Appeals for the Sixth Circuit reversed. Citing Lemon v. Kurtzman, 403 U. S. 602 (1971),^[7] the Court of Appeals [718] held that § 3 of RLUIPA "impermissibly advanc[es] religion by giving greater protection to religious rights than to other constitutionally protected rights." 349 F. 3d, at 264. Affording "religious prisoners rights superior to those of nonreligious prisoners," the court suggested, might "encourag[e] prisoners to become religious in order to enjoy greater rights." Id., at 266.

We granted certiorari to resolve the conflict among Courts of Appeals on the question whether RLUIPA's institutionalized-persons provision, § 3 of the Act, is consistent with the Establishment Clause of the First Amendment. 543 U. S. 924 (2004).^[8] Compare 349 F. 3d 257 with Madison v. Riter, 355 F. 3d 310, 313 (CA4 2003) (§ 3 of RLUIPA does not violate the Establishment Clause); Charles v. Verhagen, 348 F. 3d 601, 610-611 (CA7 2003) (same); Mayweathers v. Newland, 314 F. 3d 1062, 1068-1069 (CA9 2002) (same). We [719] now reverse the judgment of the Court of Appeals for the Sixth Circuit.

II

A

The Religion Clauses of the First Amendment provide: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first of the two Clauses, commonly called the Establishment Clause, commands a separation of church and state. The second, the Free Exercise Clause, requires government respect for, and noninterference with, the religious beliefs and practices of our Nation's people. While the two Clauses express complementary values, they often exert conflicting pressures. See Locke, 540 U. S., at 718 ("These two Clauses . . . are frequently in tension."); Walz, 397 U. S., at 668-669 ("The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.").

Our decisions recognize that "there is room for play in the joints" between the Clauses, id., at 669, some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause. See, e.g., Smith, 494 U. S., at 890 ("[A] society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation. . . ."); Amos, 483 U. S., at 329-330 (Federal Government may exempt secular nonprofit activities of religious organizations from Title VII's prohibition on religious discrimination in employment); Sherbert v. Verner, 374 U. S. 398, 422 (1963) (Harlan, J., dissenting) ("The constitutional obligation of `neutrality' is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation." (citation omitted)). In accord with the majority of Courts of Appeals that have ruled on the question, see supra, at 718 and this [720] page, we hold that § 3 of RLUIPA fits within the corridor between the Religion Clauses: On its face, the Act qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause.

Foremost, we find RLUIPA's institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. See Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 705 (1994) (government need not "be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice"); Amos, 483 U. S., at 349 (O'CONNOR, J., concurring in judgment) (removal of government-imposed burdens on religious exercise is more likely to be perceived "as an accommodation of the exercise of religion rather than as a Government endorsement of religion"). Furthermore, the Act on its face does not founder on shoals our prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, see Estate of Thornton v. Caldor, Inc., 472 U. S. 703 (1985); and they must be satisfied that the Act's prescriptions are and will be administered neutrally among different faiths, see Kiryas Joel, 512 U. S. 687.^[9]

"[T]he `exercise of religion' often involves not only belief and profession but the performance of . . . physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine. . . ." Smith, 494 U. S., at 877. Section 3 covers state-run institutions—mental hospitals, prisons, and the like—in which the government exerts a degree of control unparalleled in civilian society [721] and severely disabling to private religious exercise. 42 U. S. C. § 2000cc-1(a); § 1997; see Joint Statement S7775 ("Institutional residents' right to practice their faith is at the mercy of those running the institution.").^[10] RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion.^[11]

[722] We note in this regard the Federal Government's accommodation of religious practice by members of the military. See, e.g., 10 U. S. C. § 3073 (referring to Army chaplains); Katcoff v. Marsh, 755 F. 2d 223, 225-229 (CA2 1985) (describing the Army chaplaincy program). In Goldman v. Weinberger, 475 U. S. 503 (1986), we held that the Free Exercise Clause did not require the Air Force to exempt an Orthodox Jewish officer from uniform dress regulations so that he could wear a yarmulke indoors. In a military community, the Court observed, "there is simply not the same [individual] autonomy as there is in the larger civilian community." Id., at 507 (brackets in original; internal quotation marks omitted). Congress responded to Goldman by prescribing that "a member of the armed forces may wear an item of religious apparel while wearing the uniform," unless "the wearing of the item would interfere with the performance [of] military duties [or] the item of apparel is not neat and conservative." 10 U. S. C. §§ 774(a)-(b).

We do not read RLUIPA to elevate accommodation of religious observances over an institution's need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests. In Caldor, the Court struck down a Connecticut law that "arm[ed] Sabbath observers with an absolute and unqualified right not to work on whatever day they designate[d] as their Sabbath." 472 U. S., at 709. We held the law invalid under the Establishment Clause because it "unyielding[ly] weigh[ted]" the interests of Sabbatarians "over all other interests." Id., at 710.

We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a [723] "compelling governmental interest" standard, see supra, at 715, "[c]ontext matters" in the application of that standard. See Grutter v. Bollinger, 539 U. S. 306, 327 (2003).^[12] Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Sen. Hatch). They anticipated that courts would apply the Act's standard with "due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources." Joint Statement S7775 (quoting S. Rep. No. 103-111, at 10).^[13]

Finally, RLUIPA does not differentiate among bona fide faiths. In Kiryas Joel, we invalidated a state law that carved out a separate school district to serve exclusively a [724] community of highly religious Jews, the Satmar Hasidim. We held that the law violated the Establishment Clause, 512 U. S., at 690, in part because it "single[d] out a particular religious sect for special treatment," id., at 706 (footnote omitted). RLUIPA presents no such defect. It confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment.

B

The Sixth Circuit misread our precedents to require invalidation of RLUIPA as "impermissibly advancing religion by giving greater protection to religious rights than to other constitutionally protected rights." 349 F. 3d, at 264. Our decision in Amos counsels otherwise. There, we upheld against an Establishment Clause challenge a provision exempting "religious organizations from Title VII's prohibition against discrimination in employment on the basis of religion." 483 U. S., at 329. The District Court in Amos, reasoning in part that the exemption improperly "single[d] out religious entities for a benefit," id., at 338, had "declared the statute unconstitutional as applied to secular activity," id., at 333. Religious accommodations, we held, need not "come packaged with benefits to secular entities." Id., at 338; see Madison, 355 F. 3d, at 318 ("There is no requirement that legislative protections for fundamental rights march in lockstep.").

Were the Court of Appeals' view the correct reading of our decisions, all manner of religious accommodations would fall. Congressional permission for members of the military to wear religious apparel while in uniform would fail, see 10 U. S. C. § 774, as would accommodations Ohio itself makes. Ohio could not, as it now does, accommodate "traditionally recognized" religions, 221 F. Supp. 2d, at 832: The State provides inmates with chaplains "but not with publicists or political consultants," and allows "prisoners to assemble [725] for worship, but not for political rallies," Reply Brief for United States 5.

In upholding RLUIPA's institutionalized-persons provision, we emphasize that respondents "have raised a facial challenge to [the Act's] constitutionality, and have not contended that under the facts of any of [petitioners'] specific cases . . . [that] applying RLUIPA would produce unconstitutional results." 221 F. Supp. 2d, at 831. The District Court, noting the underdeveloped state of the record, concluded: A finding "that it is factually impossible to provide the kind of accommodations that RLUIPA will require without significantly compromising prison security or the levels of service provided to other inmates" cannot be made at this juncture. Id., at 848 (emphasis added).^[14] We agree.

"For more than a decade, the federal Bureau of Prisons has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners." Brief for United States 24 (citation omitted). The Congress that enacted RLUIPA was aware of the Bureau's experience. See Joint Statement S7776 (letter from Dept. of Justice to Sen. Hatch) ("[W]e do not believe [RLUIPA] would have an unreasonable [726] impact on prison operations. RFRA has been in effect in the Federal prison system for six years and compliance with that statute has not been an unreasonable burden to the Federal prison system."). We see no reason to anticipate that abusive prisoner litigation will overburden the operations of state and local institutions. The procedures mandated by the Prison Litigation Reform Act of 1995, we note, are designed to inhibit frivolous filings.^[15]

Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order.

* * *

For the reasons stated, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE THOMAS, concurring.

I join the opinion of the Court. I agree with the Court that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) is constitutional under our modern Establishment Clause case law.^[16] I write to explain why a [727] proper historical understanding of the Clause as a federalism provision leads to the same conclusion.^[17]

I

The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." Amdt. 1. As I have explained, an important function of the Clause was to "ma[ke] clear that Congress could not interfere with state establishments." Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 50 (2004) (opinion concurring in judgment). The Clause, then, "is best understood as a [728] federalism provision" that "protects state establishments from federal interference." Ibid.; see also Zelman v. Simmons-Harris, 536 U. S. 639, 677-680 (2002) (THOMAS, J., concurring); Lee v. Weisman, 505 U. S. 577, 641 (1992) (SCALIA, J., dissenting). Ohio contends that this federalism understanding of the Clause prevents federal oversight of state choices within the "`play in the joints'" between the Free Exercise and Establishment Clauses. Locke v. Davey, 540 U. S. 712, 718-719 (2004). In other words, Ohio asserts that the Clause protects the States from federal interference with otherwise constitutionally permissible choices regarding religious policy. In Ohio's view, RLUIPA intrudes on such state policy choices and hence violates the Clause.

Ohio's vision of the range of protected state authority overreads the Clause. Ohio and its amici contend that, even though "States can no longer establish preferred churches" because the Clause has been incorporated against the States through the Fourteenth Amendment,^[18] "Congress is as unable as ever to contravene constitutionally permissible State choices regarding religious policy." Brief for Respondents 26 (emphasis added); Brief for Commonwealth of Virginia et al. as Amici Curiae 6-13. That is not what the Clause says. The Clause prohibits Congress from enacting legislation "respecting an establishment of religion" (emphasis added); it does not prohibit Congress from enacting legislation "respecting religion" or "taking cognizance of religion." [729] P. Hamburger, Separation of Church and State 106-107 (2002). At the founding, establishment involved "`coercion of religious orthodoxy and of financial support by force of law and threat of penalty,'" Newdow, supra, at 52 (THOMAS, J., concurring in judgment) (quoting Lee, supra, at 640-641 (SCALIA, J., dissenting), in turn citing L. Levy, The Establishment Clause 4 (1986)), including "`governmental preferences for particular religious faiths,'" 542 U. S., at 53 (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 856 (1995) (THOMAS, J., concurring)). In other words, establishment at the founding involved, for example, mandatory observance or mandatory payment of taxes supporting ministers. See 542 U. S., at 52 (THOMAS, J., concurring in judgment); Lee, supra, at 640-641 (SCALIA, J., dissenting); McConnell 2131; L. Levy, The Establishment Clause: Religion and the First Amendment 10 (2d ed. 1994). To proscribe Congress from making laws "respecting an establishment of religion," therefore, was to forbid legislation respecting coercive state establishments, not to preclude Congress from legislating on religion generally.

History, at least that presented by Ohio, does not show that the Clause hermetically seals the Federal Government out of the field of religion. Ohio points to, among other things, the words of James Madison in defense of the Constitution at the Virginia Ratifying Convention: "There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation." General Defense of the Constitution (June 12, 1788), reprinted in 11 Papers of James Madison 130 (R. Rutland, C. Hobson, W. Rachal, & J. Sisson eds. 1977). Ohio also relies on James Iredell's statement discussing the Religious Test Clause at the North Carolina Ratifying Convention:

"[Congress] certainly [has] no authority to interfere in the establishment of any religion whatsoever . . . . Is there any power given to Congress in matters of religion? [730] Can they pass a single act to impair our religious liberties? If they could, it would be a just cause of alarm . . . . If any future Congress should pass an act concerning the religion of the country, it would be an act which they are not authorized to pass, by the Constitution, and which the people would not obey." Debate in North Carolina Ratifying Convention (July 30, 1788), in 5 Founders' Constitution 90 (P. Kurland & R. Lerner eds. 1987).

These quotations do not establish the Framers' beliefs about the scope of the Establishment Clause. Instead, they demonstrate only that some of the Framers may have believed that the National Government had no authority to legislate concerning religion, because no enumerated power gave it that authority. Ohio's Spending Clause and Commerce Clause challenges, therefore, may well have merit. See n. 2, supra.

In any event, Ohio has not shown that the Establishment Clause codified Madison's or Iredell's view that the Federal Government could not legislate regarding religion. An unenacted version of the Clause, proposed in the House of Representatives, demonstrates the opposite. It provided that "Congress shall make no laws touching religion, or infringing the rights of conscience." 1 Annals of Cong. 731 (1789); see also Wallace v. Jaffree, 472 U. S. 38, 96-97 (1985) (REHNQUIST, J., dissenting). The words ultimately adopted, "Congress shall make no law respecting an establishment of religion," "identified a position from which [Madison] had once sought to distinguish his own," Hamburger, Separation of Church and State, at 106. Whatever he thought of those words, "he clearly did not mind language less severe than that which he had [previously] used." Ibid. The version of the Clause finally adopted is narrower than Ohio claims.

Nor does the other historical evidence on which Ohio relies—Joseph Story's Commentaries on the Constitution—prove its theory. Leaving aside the problems with relying [731] on this source as an indicator of the original understanding, see U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 856 (1995) (THOMAS, J., dissenting), it is unpersuasive in its own right. Justice Story did say that "the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions." Commentaries on the Constitution of the United States 702-703 (1833) (reprinted 1987). In context, however, his statement concerned only Congress' inability to legislate with respect to religious establishment. See id., at 701 ("The real object of the amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government"); id., at 702 ("[I]t was deemed advisable to exclude from the national government all power to act upon the subject. . . . It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment").

In short, the view that the Establishment Clause precludes Congress from legislating respecting religion lacks historical provenance, at least based on the history of which I am aware. Even when enacting laws that bind the States pursuant to valid exercises of its enumerated powers, Congress need not observe strict separation between church and state, or steer clear of the subject of religion. It need only refrain from making laws "respecting an establishment of religion"; it must not interfere with a state establishment of religion. For example, Congress presumably could not require a State to establish a religion any more than it could preclude a State from establishing a religion.

II

On its face—the relevant inquiry, as this is a facial challenge—RLUIPA is not a law "respecting an establishment of [732] religion." RLUIPA provides, as relevant: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person," first, "further[s] a compelling governmental interest," and second, "is the least restrictive means of furthering that compelling governmental interest." 42 U. S. C. §§ 2000cc-1(a)(1)-(2). This provision does not prohibit or interfere with state establishments, since no State has established (or constitutionally could establish, given an incorporated Clause) a religion. Nor does the provision require a State to establish a religion: It does not force a State to coerce religious observance or payment of taxes supporting clergy, or require a State to prefer one religious sect over another. It is a law respecting religion, but not one respecting an establishment of religion.

In addition, RLUIPA's text applies to all laws passed by state and local governments, including "rule[s] of general applicability," ibid., whether or not they concern an establishment of religion. State and local governments obviously have many laws that have nothing to do with religion, let alone establishments thereof. Numerous applications of RLUIPA therefore do not contravene the Establishment Clause, and a facial challenge based on the Clause must fail. See United States v. Booker, 543 U.S. 220, 314 (2005) (THOMAS, J., concurring in part and dissenting in part); United States v. Salerno, 481 U. S. 739, 745 (1987).

It also bears noting that Congress, pursuant to its Spending Clause authority, conditioned the States' receipt of federal funds on their compliance with RLUIPA. § 2000cc-1(b)(1) ("This section applies in any case in which . . . the substantial burden is imposed in a program or activity that receives Federal financial assistance"). As noted above, n. 2, supra, RLUIPA may well exceed the spending power. Nonetheless, while Congress' condition stands, the States [733] subject themselves to that condition by voluntarily accepting federal funds. The States' voluntary acceptance of Congress' condition undercuts Ohio's argument that Congress is encroaching on its turf.

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[1] Briefs of amici curiae urging reversal were filed for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Caitlin J. Halligan, Solicitor General, Daniel Smirlock, Deputy Solicitor General, and Jean Lin and Benjamin N. Gutman, Assistant Solicitors General, and by Christine O. Gregoire, Attorney General of Washington; for the American Correctional Chaplains Association et al. by Gene C. Schaerr; for Americans United for Separation of Church and State et al. by David M. Gossett, David C. Fathi, Ayesha N. Khan, Richard B. Katskee, Alex J. Luchenitser, and Steven R. Shapiro; for the National Association of Evangelicals et al. by Douglas Laycock and Nathan J. Diament; and for Sen. Orrin G. Hatch et al. by Martin S. Lederman.

Briefs of amici curiae urging affirmance were filed for the Common-wealth of Virginia et al. by Judith Williams Jagdmann, Attorney General of Virginia, William E. Thro, State Solicitor General, Maureen Riley Matsen, Deputy Attorney General, and Matthew M. Cobb, Carla R. Collins, Eric A. Gregory, Joel C. Hoppe, Courtney M. Malveaux, Valerie L. Myers, A. Cameron O'Brion, Ronald N. Regnery, D. Mathias Roussy, Jr., and William R. Sievers, Associate State Solicitors General, by Alva A. Swan, Acting Attorney General of the Virgin Islands, and by the Attorneys General for their respective States as follows: Gregg D. Renkes of Alaska, Lawrence G. Wasden of Idaho, Thomas J. Miller of Iowa, Jon Bruning of Nebraska, Wayne Stenehjem of North Dakota, W. A. Drew Edmondson of Oklahoma, and Darrell V. McGraw, Jr., of West Virginia; for the American Jail Association et al. by Michael N. Beekhuizen and Michael H. Carpenter; and for the Claremont Institute Center for Constitutional Jurisprudence by John C. Eastman and Edwin Meese III.

Briefs of amici curiae were filed for the Coalition for the Free Exercise of Religion by Anthony R. Picarello, Jr., and K. Hollyn Hollman; for the International Municipal Lawyers Association et al. by Marci A. Hamilton; and for the Rutherford Institute by James J. Knicely and John W. Whitehead.

[2] Petitioners Cutter and Gerhardt are no longer in the custody of the Ohio Department of Rehabilitation and Correction. Brief for Petitioners 2, n. 1. No party has suggested that this case has become moot, nor has it: Without doubt, a live controversy remains among the still-incarcerated petitioners, the United States, and respondents. We do not reach the question whether the claims of Cutter and Gerhardt continue to present an actual controversy. See Steffel v. Thompson, 415 U. S. 452, 459-460, and n. 10 (1974).

[3] RFRA, Courts of Appeals have held, remains operative as to the Federal Government and federal territories and possessions. See O'Bryan v. Bureau of Prisons, 349 F. 3d 399, 400-401 (CA7 2003); Guam v. Guerrero, 290 F. 3d 1210, 1220-1222 (CA9 2002); Kikumura v. Hurley, 242 F. 3d 950, 958-960 (CA10 2001); In re Young, 141 F. 3d 854, 858-863 (CA8 1998). This Court, however, has not had occasion to rule on the matter.

[4] Section 2 of RLUIPA is not at issue here. We therefore express no view on the validity of that part of the Act.

[5] Every State, including Ohio, accepts federal funding for its prisons. Brief for United States 28, n. 16 (citing FY 2003 Office of Justice Programs & Office of Community Oriented Policing Services Grants by State).

[6] The hearings held by Congress revealed, for a typical example, that "[a] state prison in Ohio refused to provide Moslems with Hallal food, even though it provided Kosher food." Hearing on Protecting Religious Freedom After Boerne v. Flores before the Subcommittee on the Constitution of the House Committee on the Judiciary, 105th Cong., 2d Sess., pt. 3, p. 11, n. 1 (1998) (hereinafter Protecting Religious Freedom) (prepared statement of Marc D. Stern, Legal Director, American Jewish Congress). Across the country, Jewish inmates complained that prison officials refused to provide sack lunches, which would enable inmates to break their fasts after nightfall. Id., at 39 (statement of Isaac M. Jaroslawicz, Director of Legal Affairs for the Aleph Institute). The "Michigan Department of Corrections . . . prohibit[ed] the lighting of Chanukah candles at all state prisons" even though "smoking" and "votive candles" were permitted. Id., at 41 (same). A priest responsible for communications between Roman Catholic dioceses and corrections facilities in Oklahoma stated that there "was [a] nearly yearly battle over the Catholic use of Sacramental Wine . . . for the celebration of the Mass," and that prisoners' religious possessions, "such as the Bible, the Koran, the Talmud or items needed by Native Americans[,] . . . were frequently treated with contempt and were confiscated, damaged or discarded" by prison officials. Id., pt. 2, at 58-59 (prepared statement of Donald W. Brooks, Reverend, Diocese of Tulsa, Oklahoma).

[7] Lemon stated a three-part test: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." 403 U. S., at 612-613 (citations and internal quotation marks omitted). We resolve this case on other grounds.

[8] Respondents argued below that RLUIPA exceeds Congress' legislative powers under the Spending and Commerce Clauses and violates the Tenth Amendment. The District Court rejected respondents' challenges under the Spending Clause, Gerhardt v. Lazaroff, 221 F. Supp. 2d 827, 839-849 (SD Ohio 2002), and the Tenth Amendment, id., at 850-851, and declined to reach the Commerce Clause question, id., at 838-839. The Sixth Circuit, having determined that RLUIPA violates the Establishment Clause, did not rule on respondents' further arguments. See 349 F. 3d 257, 259-260, 269 (2003). Respondents renew those arguments in this Court. They also augment their federalism-based or residual-powers contentions by asserting that, in the space between the Free Exercise and Establishment Clauses, the States' choices are not subject to congressional oversight. See Brief for Respondents 9, 25-33; cf. Madison v. Riter, 355 F. 3d 310, 322 (CA4 2003). Because these defensive pleas were not addressed by the Court of Appeals, and mindful that we are a court of review, not of first view, we do not consider them here. See F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155, 175 (2004); United States v. Oakland Cannabis Buyers' Cooperative, 532 U. S. 483, 494 (2001). But cf. post, at 727, n. 2 (THOMAS, J., concurring).

[9] Directed at obstructions institutional arrangements place on religious observances, RLUIPA does not require a State to pay for an inmate's devotional accessories. See, e.g., Charles v. Verhagen, 348 F. 3d 601, 605 (CA7 2003) (overturning prohibition on possession of Islamic prayer oil but leaving inmate-plaintiff with responsibility for purchasing the oil).

[10] See, e.g., ibid. (prison's regulation prohibited Muslim prisoner from possessing ritual cleansing oil); Young v. Lane, 922 F. 2d 370, 375-376 (CA7 1991) (prison's regulation restricted wearing of yarmulkes); Hunafa v. Murphy, 907 F. 2d 46, 47-48 (CA7 1990) (noting instances in which Jewish and Muslim prisoners were served pork, with no substitute available).

[11] Respondents argue, in line with the Sixth Circuit, that RLUIPA goes beyond permissible reduction of impediments to free exercise. The Act, they project, advances religion by encouraging prisoners to "get religion," and thereby gain accommodations afforded under RLUIPA. Brief for Respondents 15-17; see 349 F. 3d, at 266 ("One effect of RLUIPA is to induce prisoners to adopt or feign religious belief in order to receive the statute's benefits."). While some accommodations of religious observance, notably the opportunity to assemble in worship services, might attract joiners seeking a break in their closely guarded day, we doubt that all accommodations would be perceived as "benefits." For example, congressional hearings on RLUIPA revealed that one state corrections system served as its kosher diet "a fruit, a vegetable, a granola bar, and a liquid nutritional supplement—each and every meal." Protecting Religious Freedom, pt. 3, at 38 (statement of Jaroslawicz).

The argument, in any event, founders on the fact that Ohio already facilitates religious services for mainstream faiths. The State provides chaplains, allows inmates to possess religious items, and permits assembly for worship. See App. 199 (affidavit of David Schwarz, Religious Services Administrator for the South Region of the Ohio Dept. of Rehabilitation and Correction (Oct. 19, 2000)) (job duties include "facilitating the delivery of religious services in 14 correctional institutions of various security levels throughout . . . Ohio"); Ohio Dept. of Rehabilitation and Correction, Table of Organization (Apr. 2005), available at http://www.drc.state.oh.us/web/DRCORG1.pdf (as visited May 27, 2005, and available in Clerk of Court's case file) (department includes "Religious Services" division); Brief for United States 20, and n. 8 (citing, inter alia, Gawloski v. Dallman, 803 F. Supp. 103, 113 (SD Ohio 1992) (inmate in protective custody allowed to attend a congregational religious service, possess a Bible and other religious materials, and receive chaplain visits); Taylor v. Perini, 413 F. Supp. 189, 238 (ND Ohio 1976) (institutional chaplains had free access to correctional area)).

[12] The Sixth Circuit posited that an irreligious prisoner and member of the Aryan Nation who challenges prison officials' confiscation of his white supremacist literature as a violation of his free association and expression rights would have his claims evaluated under the deferential rational-relationship standard described in Turner v. Safley, 482 U. S. 78 (1987). A member of the Church of Jesus Christ Christian challenging a similar withholding, the Sixth Circuit assumed, would have a stronger prospect of success because a court would review his claim under RLUIPA's compelling-interest standard. 349 F. 3d, at 266 (citing Madison v. Riter, 240 F. Supp. 2d 566, 576 (WD Va. 2003)). Courts, however, may be expected to recognize the government's countervailing compelling interest in not facilitating inflammatory racist activity that could imperil prison security and order. Cf. Reimann v. Murphy, 897 F. Supp. 398, 402-403 (ED Wis. 1995) (concluding, under RFRA, that excluding racist literature advocating violence was the least restrictive means of furthering the compelling state interest in preventing prison violence); George v. Sullivan, 896 F. Supp. 895, 898 (WD Wis. 1995) (same).

[13] State prison officials make the first judgment about whether to provide a particular accommodation, for a prisoner may not sue under RLUIPA without first exhausting all available administrative remedies. See 42 U. S. C. § 2000cc-2(e) (nothing in RLUIPA "shall be construed to amend or repeal the Prison Litigation Reform Act of 1995"); § 1997e(a) (requiring exhaustion of administrative remedies).

[14] Respondents argue that prison gangs use religious activity to cloak their illicit and often violent conduct. The instant case was considered below on a motion to dismiss. Thus, the parties' conflicting assertions on this matter are not before us. It bears repetition, however, that prison security is a compelling state interest, and that deference is due to institutional officials' expertise in this area. See supra, at 722-723. Further, prison officials may appropriately question whether a prisoner's religiosity, asserted as the basis for a requested accommodation, is authentic. Although RLUIPA bars inquiry into whether a particular belief or practice is "central" to a prisoner's religion, see 42 U. S. C. § 2000cc-5(7)(A), the Act does not preclude inquiry into the sincerity of a prisoner's professed religiosity. Cf. Gillette v. United States, 401 U.S. 437, 457 (1971) ("`[T]he "truth" of a belief is not open to question'; rather, the question is whether the objector's beliefs are `truly held.'" (quoting United States v. Seeger, 380 U. S. 163, 185 (1965))).

[15] See supra, at 723, n. 12.

[16] The Court properly declines to assess RLUIPA under the discredited test of Lemon v. Kurtzman, 403 U. S. 602 (1971), which the Court of Appeals applied below, 349 F. 3d 257, 262-268 (CA6 2003). Lemon held that, to avoid invalidation under the Establishment Clause, a statute "must have a secular legislative purpose," "its principal or primary effect must be one that neither advances nor inhibits religion," and it "must not foster an excessive government entanglement with religion." 403 U. S., at 612-613 (internal quotation marks omitted). Under the first and second prongs, RLUIPA—and, indeed, any accommodation of religion—might well violate the Clause. Even laws disestablishing religion might violate the Clause. Disestablishment might easily have a religious purpose and thereby flunk the first prong, or it might well "strengthen and revitalize" religion and so fail the second. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2206-2207 (2003) (hereinafter McConnell).

[17] The Court dismisses the parties' arguments about the federalism aspect of the Clause with the brief observation that the Court of Appeals did not address the issue. Ante, at 718, n. 7. The parties' contentions on this point, however, are fairly included in the question presented, which asks "[w]hether Congress violated the Establishment Clause by enacting [RLUIPA]." Pet. for Cert. i. Further, both parties have briefed the federalism understanding of the Clause, Brief for Respondents 25-33; Reply Brief for Petitioners 12-16, and neither suggests that a remand on it would be useful or that the record in this Court lacks relevant facts, Good News Club v. Milford Central School,533 U. S. 98, 119, n. 9 (2001).

Also, though RLUIPA is entirely consonant with the Establishment Clause, it may well exceed Congress' authority under either the Spending Clause or the Commerce Clause. See Sabri v. United States, 541 U. S. 600, 613 (2004) (THOMAS, J., concurring in judgment) (for a Spending Clause condition on a State's receipt of funds to be "Necessary and Proper" to the expenditure of the funds, there must be "some obvious, simple, and direct relation" between the condition and the expenditure of the funds); United States v. Lopez, 514 U. S. 549, 587 (1995) (THOMAS, J., concurring) ("The Constitution not only uses the word `commerce' in a narrower sense than our case law might suggest, it also does not support the proposition that Congress has authority over all activities that `substantially affect' interstate commerce"). The Court, however, properly declines to reach those issues, since they are outside the question presented and were not addressed by the Court of Appeals.

[18] Ohio claims the benefit of the federalism aspect of the Clause, yet simultaneously adheres to the view that the Establishment Clause was incorporated against the States through the Fourteenth Amendment. Brief for Respondents 25-26. These positions may be incompatible. The text and history of the Clause may well support the view that the Clause is not incorporated against the States precisely because the Clause shielded state establishments from congressional interference. Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 50-51 (2004) (THOMAS, J., concurring in judgment). I note, however, that a state law that would violate the incorporated Establishment Clause might also violate the Free Exercise Clause. Id., at 53, n. 4, 54, n. 5.

[698] Douglas Laycock, Charlottesville, VA, for Petitioner.

Leondra R. Kruger, Washington, DC, for Federal Respondent.

[699] Walter Dellinger, Washington, DC, for Private Respondent.

Eric C. Rassbach, Hannah C. Smith, Luke W. Goodrich, Lori H. Windham, The Becket Fund for Religious Liberty, Washington, DC, Joshua D. Hawley, University of Missouri School of Law, Columbia, MO, Douglas Laycock, Counsel of Record, University of Virginia School of Law, Charlottesville, VA, Sherri C. Strand, James W. Erwin, Thompson Coburn LLP, St. Louis, MO, for Petitioner.

P. David Lopez, General Counsel, Lorraine C. Davis, Acting Associate General Counsel, Carolyn L. Wheeler, Assistant General Counsel, Eric A Harrington, Attorney, Equal Employment Opportunity Commission, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Thomas E. Perez, Assistant Attorney General, Leondra R. Kruger, Acting Deputy Solicitor General, Counsel of Record, Joseph R. Palmore, Assistant to the Solicitor General, Dennis J. Dimsey, Sharon M. McGowan, Aaron D. Schuham, Attorneys, Department of Justice, Washington, DC, for Federal Respondent.

James E. Roach, Robert M. Vercruysse, Vercruysse Murray & Calzone, P.C., Bingham Farms, MI, Walter Dellinger, Anton Metlitsky, Loren L. Alikhan, O'Melveny & Myers LLP, Washington, DC, for Private Respondent.

Chief Justice ROBERTS delivered the opinion of the Court.

Certain employment discrimination laws authorize employees who have been wrongfully terminated to sue their employers for reinstatement and damages. The question presented is whether the Establishment and Free Exercise Clauses of the First Amendment bar such an action when the employer is a religious group and the employee is one of the group's ministers.

I

A

Petitioner Hosanna-Tabor Evangelical Lutheran Church and School is a member congregation of the Lutheran Church-Missouri Synod, the second largest Lutheran denomination in America. Hosanna-Tabor operated a small school in Redford, Michigan, offering a "Christ-centered education" to students in kindergarten through eighth grade. 582 F.Supp.2d 881, 884 (E.D.Mich.2008) (internal quotation marks omitted).

The Synod classifies teachers into two categories: "called" and "lay." "Called" teachers are regarded as having been called to their vocation by God through a congregation. To be eligible to receive a call from a congregation, a teacher must satisfy certain academic requirements. One way of doing so is by completing a "colloquy" program at a Lutheran college or university. The program requires candidates to take eight courses of theological study, obtain the endorsement of their local Synod district, and pass an oral examination by a faculty committee. A teacher who meets these requirements may be called by a congregation. Once called, a teacher receives the formal title "Minister of Religion, Commissioned." App. 42, 48. A commissioned minister serves for an open-ended term; at Hosanna-Tabor, a call could be rescinded only for cause and by a supermajority vote of the congregation.

"Lay" or "contract" teachers, by contrast, are not required to be trained by the Synod or even to be Lutheran. At Hosanna-Tabor, they were appointed by the [700] school board, without a vote of the congregation, to one-year renewable terms. Although teachers at the school generally performed the same duties regardless of whether they were lay or called, lay teachers were hired only when called teachers were unavailable.

Respondent Cheryl Perich was first employed by Hosanna-Tabor as a lay teacher in 1999. After Perich completed her colloquy later that school year, Hosanna-Tabor asked her to become a called teacher. Perich accepted the call and received a "diploma of vocation" designating her a commissioned minister. Id., at 42.

Perich taught kindergarten during her first four years at Hosanna-Tabor and fourth grade during the 2003-2004 school year. She taught math, language arts, social studies, science, gym, art, and music. She also taught a religion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.

Perich became ill in June 2004 with what was eventually diagnosed as narcolepsy. Symptoms included sudden and deep sleeps from which she could not be roused. Because of her illness, Perich began the 2004-2005 school year on disability leave. On January 27, 2005, however, Perich notified the school principal, Stacey Hoeft, that she would be able to report to work the following month. Hoeft responded that the school had already contracted with a lay teacher to fill Perich's position for the remainder of the school year. Hoeft also expressed concern that Perich was not yet ready to return to the classroom.

On January 30, Hosanna-Tabor held a meeting of its congregation at which school administrators stated that Perich was unlikely to be physically capable of returning to work that school year or the next. The congregation voted to offer Perich a "peaceful release" from her call, whereby the congregation would pay a portion of her health insurance premiums in exchange for her resignation as a called teacher. Id., at 178, 186. Perich refused to resign and produced a note from her doctor stating that she would be able to return to work on February 22. The school board urged Perich to reconsider, informing her that the school no longer had a position for her, but Perich stood by her decision not to resign.

On the morning of February 22—the first day she was medically cleared to return to work—Perich presented herself at the school. Hoeft asked her to leave but she would not do so until she obtained written documentation that she had reported to work. Later that afternoon, Hoeft called Perich at home and told her that she would likely be fired. Perich responded that she had spoken with an attorney and intended to assert her legal rights.

Following a school board meeting that evening, board chairman Scott Salo sent Perich a letter stating that Hosanna-Tabor was reviewing the process for rescinding her call in light of her "regrettable" actions. Id., at 229. Salo subsequently followed up with a letter advising Perich that the congregation would consider whether to rescind her call at its next meeting. As grounds for termination, the letter cited Perich's "insubordination and disruptive behavior" on February 22, as well as the damage she had done to her "working relationship" with the school by "threatening to take legal action." Id., at 55. The congregation voted to rescind Perich's call on April 10, and Hosanna-Tabor sent her a letter of termination the next day.

[701] B

Perich filed a charge with the Equal Employment Opportunity Commission, alleging that her employment had been terminated in violation of the Americans with Disabilities Act, 104 Stat. 327, 42 U.S.C. § 12101 et seq. (1990). The ADA prohibits an employer from discriminating against a qualified individual on the basis of disability. § 12112(a). It also prohibits an employer from retaliating "against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA]." § 12203(a).^[1]

The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Perich intervened in the litigation, claiming unlawful retaliation under both the ADA and the Michigan Persons with Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1602(a) (1979). The EEOC and Perich sought Perich's reinstatement to her former position (or frontpay in lieu thereof), along with backpay, compensatory and punitive damages, attorney's fees, and other injunctive relief.

Hosanna-Tabor moved for summary judgment. Invoking what is known as the "ministerial exception," the Church argued that the suit was barred by the First Amendment because the claims at issue concerned the employment relationship between a religious institution and one of its ministers. According to the Church, Perich was a minister, and she had been fired for a religious reason—namely, that her threat to sue the Church violated the Synod's belief that Christians should resolve their disputes internally.

The District Court agreed that the suit was barred by the ministerial exception and granted summary judgment in Hosanna-Tabor's favor. The court explained that "Hosanna-Tabor treated Perich like a minister and held her out to the world as such long before this litigation began," and that the "facts surrounding Perich's employment in a religious school with a sectarian mission" supported the Church's characterization. 582 F.Supp.2d, at 891-892. In light of that determination, the court concluded that it could "inquire no further into her claims of retaliation." Id., at 892.

The Court of Appeals for the Sixth Circuit vacated and remanded, directing the District Court to proceed to the merits of Perich's retaliation claims. The Court of Appeals recognized the existence of a ministerial exception barring certain employment discrimination claims against religious institutions—an exception "rooted in the First Amendment's guarantees of religious freedom." 597 F.3d 769, 777 (2010). The court concluded, however, that Perich did not qualify as a "minister" under the exception, noting in particular that her duties as a called teacher were identical to her duties as a lay teacher. Id., at 778-781. [702] Judge White concurred. She viewed the question whether Perich qualified as a minister to be closer than did the majority, but agreed that the "fact that the duties of the contract teachers are the same as the duties of the called teachers is telling." Id., at 782, 784.

We granted certiorari. 563 U.S. ___, 131 S.Ct. 1783, 179 L.Ed.2d 653 (2011).

II

The First Amendment provides, in part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." We have said that these two Clauses "often exert conflicting pressures," Cutter v. Wilkinson, 544 U.S. 709, 719, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005), and that there can be "internal tension ... between the Establishment Clause and the Free Exercise Clause," Tilton v. Richardson, 403 U.S. 672, 677, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (plurality opinion). Not so here. Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.

A

Controversy between church and state over religious offices is hardly new. In 1215, the issue was addressed in the very first clause of Magna Carta. There, King John agreed that "the English church shall be free, and shall have its rights undiminished and its liberties unimpaired." The King in particular accepted the "freedom of elections," a right "thought to be of the greatest necessity and importance to the English church." J. Holt, Magna Carta App. IV, p. 317, cl. 1 (1965).

That freedom in many cases may have been more theoretical than real. See, e.g., W. Warren, Henry II 312 (1973) (recounting the writ sent by Henry II to the electors of a bishopric in Winchester, stating: "I order you to hold a free election, but forbid you to elect anyone but Richard my clerk"). In any event, it did not survive the reign of Henry VIII, even in theory. The Act of Supremacy of 1534, 26 Hen. 8, ch. 1, made the English monarch the supreme head of the Church, and the Act in Restraint of Annates, 25 Hen. 8, ch. 20, passed that same year, gave him the authority to appoint the Church's high officials. See G. Elton, The Tudor Constitution: Documents and Commentary 331-332 (1960). Various Acts of Uniformity, enacted subsequently, tightened further the government's grip on the exercise of religion. See, e.g., Act of Uniformity, 1559, 1 Eliz., ch. 2; Act of Uniformity, 1549, 2 & 3 Edw. 6, ch. 1. The Uniformity Act of 1662, for instance, limited service as a minister to those who formally assented to prescribed tenets and pledged to follow the mode of worship set forth in the Book of Common Prayer. Any minister who refused to make that pledge was "deprived of all his Spiritual Promotions." Act of Uniformity, 1662, 14 Car. 2, ch. 4.

Seeking to escape the control of the national church, the Puritans fled to New England, where they hoped to elect their own ministers and establish their own modes of worship. See T. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 3 (1986); McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L.Rev. 1409, 1422 (1990). William Penn, the Quaker proprietor of what would eventually become Pennsylvania and Delaware, also sought independence from the Church of England. The charter creating the province of Pennsylvania contained no clause establishing a religion. See S. Cobb, The Rise of Religious Liberty in America 440-441 (1970).

[703] Colonists in the South, in contrast, brought the Church of England with them. But even they sometimes chafed at the control exercised by the Crown and its representatives over religious offices. In Virginia, for example, the law vested the governor with the power to induct ministers presented to him by parish vestries, 2 Hening's Statutes at Large 46 (1642), but the vestries often refused to make such presentations and instead chose ministers on their own. See H. Eckenrode, Separation of Church and State in Virginia 13-19 (1910). Controversies over the selection of ministers also arose in other Colonies with Anglican establishments, including North Carolina. See C. Antieau, A. Downey, & E. Roberts, Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses 10-11 (1964). There, the royal governor insisted that the right of presentation lay with the Bishop of London, but the colonial assembly enacted laws placing that right in the vestries. Authorities in England intervened, repealing those laws as inconsistent with the rights of the Crown. See id., at 11; Weeks, Church and State in North Carolina, Johns Hopkins U. Studies in Hist. & Pol. Sci., 11th Ser., Nos. 5-6, pp. 29-36 (1893).

It was against this background that the First Amendment was adopted. Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. See 1 Annals of Cong. 730-731 (1789) (noting that the Establishment Clause addressed the fear that "one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform" (remarks of J. Madison)). By forbidding the "establishment of religion" and guaranteeing the "free exercise thereof," the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.

This understanding of the Religion Clauses was reflected in two events involving James Madison, "`the leading architect of the religion clauses of the First Amendment.'" Arizona Christian School Tuition Organization v. Winn, 563 U.S. ___, ___, 131 S.Ct. 1436, 1446, 179 L.Ed.2d 523 (2011) (quoting Flast v. Cohen, 392 U.S. 83, 103, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). The first occurred in 1806, when John Carroll, the first Catholic bishop in the United States, solicited the Executive's opinion on who should be appointed to direct the affairs of the Catholic Church in the territory newly acquired by the Louisiana Purchase. After consulting with President Jefferson, then-Secretary of State Madison responded that the selection of church "functionaries" was an "entirely ecclesiastical" matter left to the Church's own judgment. Letter from James Madison to Bishop Carroll (Nov. 20, 1806), reprinted in 20 Records of the American Catholic Historical Society 63 (1909). The "scrupulous policy of the Constitution in guarding against a political interference with religious affairs," Madison explained, prevented the Government from rendering an opinion on the "selection of ecclesiastical individuals." Id., at 63-64.

The second episode occurred in 1811, when Madison was President. Congress had passed a bill incorporating the Protestant Episcopal Church in the town of Alexandria in what was then the District of Columbia. Madison vetoed the bill, on the ground that it "exceeds the rightful authority to which Governments are limited, by the essential distinction between civil [704] and religious functions, and violates, in particular, the article of the Constitution of the United States, which declares, that `Congress shall make no law respecting a religious establishment.'" 22 Annals of Cong. 982-983 (1811). Madison explained:

"The bill enacts into, and establishes by law, sundry rules and proceedings relative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the Minister of the same; so that no change could be made therein by the particular society, or by the general church of which it is a member, and whose authority it recognises." Id., at 983 (emphasis added).

B

Given this understanding of the Religion Clauses—and the absence of government employment regulation generally—it was some time before questions about government interference with a church's ability to select its own ministers came before the courts. This Court touched upon the issue indirectly, however, in the context of disputes over church property. Our decisions in that area confirm that it is impermissible for the government to contradict a church's determination of who can act as its ministers.

In Watson v. Jones, 13 Wall. 679, 20 L.Ed. 666 (1872), the Court considered a dispute between antislavery and proslavery factions over who controlled the property of the Walnut Street Presbyterian Church in Louisville, Kentucky. The General Assembly of the Presbyterian Church had recognized the antislavery faction, and this Court—applying not the Constitution but a "broad and sound view of the relations of church and state under our system of laws"—declined to question that determination. Id., at 727. We explained that "whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them." Ibid. As we would put it later, our opinion in Watson "radiates ... a spirit of freedom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952).

Confronting the issue under the Constitution for the first time in Kedroff, the Court recognized that the "[f]reedom to select the clergy, where no improper methods of choice are proven," is "part of the free exercise of religion" protected by the First Amendment against government interference. Ibid. At issue in Kedroff was the right to use a Russian Orthodox cathedral in New York City. The Russian Orthodox churches in North America had split from the Supreme Church Authority in Moscow, out of concern that the Authority had become a tool of the Soviet Government. The North American churches claimed that the right to use the cathedral belonged to an archbishop elected by them; the Supreme Church Authority claimed that it belonged instead to an archbishop appointed by the patriarch in Moscow. New York's highest court ruled in favor of the North American churches, based on a state law requiring every Russian Orthodox church in New York to recognize the determination of the governing body of the North American churches as authoritative. Id., at 96-97, 99, n. 3, 107, n. 10, 73 S.Ct. 143.

[705] This Court reversed, concluding that the New York law violated the First Amendment. Id., at 107, 73 S.Ct. 143. We explained that the controversy over the right to use the cathedral was "strictly a matter of ecclesiastical government, the power of the Supreme Church Authority of the Russian Orthodox Church to appoint the ruling hierarch of the archdiocese of North America." Id., at 115, 73 S.Ct. 143. By "pass[ing] the control of matters strictly ecclesiastical from one church authority to another," the New York law intruded the "power of the state into the forbidden area of religious freedom contrary to the principles of the First Amendment." Id., at 119, 73 S.Ct. 143. Accordingly, we declared the law unconstitutional because it "directly prohibit[ed] the free exercise of an ecclesiastical right, the Church's choice of its hierarchy." Ibid.

This Court reaffirmed these First Amendment principles in Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976), a case involving a dispute over control of the American-Canadian Diocese of the Serbian Orthodox Church, including its property and assets. The Church had removed Dionisije Milivojevich as bishop of the American-Canadian Diocese because of his defiance of the church hierarchy. Following his removal, Dionisije brought a civil action in state court challenging the Church's decision, and the Illinois Supreme Court "purported in effect to reinstate Dionisije as Diocesan Bishop," on the ground that the proceedings resulting in his removal failed to comply with church laws and regulations. Id., at 708, 96 S.Ct. 2372.

Reversing that judgment, this Court explained that the First Amendment "permit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters." Id., at 724, 96 S.Ct. 2372. When ecclesiastical tribunals decide such disputes, we further explained, "the Constitution requires that civil courts accept their decisions as binding upon them." Id., at 725, 96 S.Ct. 2372. We thus held that by inquiring into whether the Church had followed its own procedures, the State Supreme Court had "unconstitutionally undertaken the resolution of quintessentially religious controversies whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals" of the Church. Id., at 720, 96 S.Ct. 2372.

C

Until today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment. The Courts of Appeals, in contrast, have had extensive experience with this issue. Since the passage of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a "ministerial exception," grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.^[2]

[706] We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The EEOC and Perich acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary. Brief for Federal Respondent 31; Brief for Respondent Perich 35-36. According to the EEOC and Perich, religious organizations could successfully defend against employment discrimination claims in those circumstances by invoking the constitutional right to freedom of association—a right "implicit" in the First Amendment. Roberts v. United States Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). The EEOC and Perich thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves.

We find this position untenable. The right to freedom of association is a right enjoyed by religious and secular groups alike. It follows under the EEOC's and Perich's view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. See Perich Brief 31; Tr. of Oral Arg. 28. That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization's freedom to select its own ministers.

The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), precludes recognition of a ministerial exception. In Smith, two members of the Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregon law. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the "right of free exercise does not relieve an individual of the obligation to comply with a valid and 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 [707] S.Ct. 1595 (internal quotation marks omitted).

It is true that the ADA's prohibition on retaliation, like Oregon's prohibition on peyote use, is a valid and neutral law of general applicability. But a church's selection of its ministers is unlike an individual's ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877, 110 S.Ct. 1595 (distinguishing the government's regulation of "physical acts" from its "lend[ing] its power to one or the other side in controversies over religious authority or dogma"). The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.

III

Having concluded that there is a ministerial exception grounded in the Religion Clauses of the First Amendment, we consider whether the exception applies in this case. We hold that it does.

Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree. We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.

To begin with, Hosanna-Tabor held Perich out as a minister, with a role distinct from that of most of its members. When Hosanna-Tabor extended her a call, it issued her a "diploma of vocation" according her the title "Minister of Religion, Commissioned." App. 42. She was tasked with performing that office "according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures." Ibid. The congregation prayed that God "bless [her] ministrations to the glory of His holy name, [and] the building of His church." Id., at 43. In a supplement to the diploma, the congregation undertook to periodically review Perich's "skills of ministry" and "ministerial responsibilities," and to provide for her "continuing education as a professional person in the ministry of the Gospel." Id., at 49.

Perich's title as a minister reflected a significant degree of religious training followed by a formal process of commissioning. To be eligible to become a commissioned minister, Perich had to complete eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher. She also had to obtain the endorsement of her local Synod district by submitting a petition that contained her academic transcripts, letters of recommendation, personal statement, and written answers to various ministry-related questions. Finally, she had to pass an oral examination by a faculty committee at a Lutheran college. It took Perich six years to fulfill these requirements. And when she eventually did, she was commissioned as a minister only upon election by the congregation, which recognized God's call to her to teach. At that point, her call could be rescinded only upon a supermajority vote of the congregation—a protection designed to allow her to "preach the Word of God boldly." Brief for Lutheran Church-Missouri Synod as Amicus Curiae 15.

Perich held herself out as a minister of the Church by accepting the formal call to religious service, according to its terms. [708] She did so in other ways as well. For example, she claimed a special housing allowance on her taxes that was available only to employees earning their compensation "`in the exercise of the ministry.'" App. 220 ("If you are not conducting activities `in the exercise of the ministry,' you cannot take advantage of the parsonage or housing allowance exclusion" (quoting Lutheran Church-Missouri Synod Brochure on Whether the IRS Considers Employees as a Minister (2007)). In a form she submitted to the Synod following her termination, Perich again indicated that she regarded herself as a minister at Hosanna-Tabor, stating: "I feel that God is leading me to serve in the teaching ministry.... I am anxious to be in the teaching ministry again soon." App. 53.

Perich's job duties reflected a role in conveying the Church's message and carrying out its mission. Hosanna-Tabor expressly charged her with "lead[ing] others toward Christian maturity" and "teach[ing] faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church." Id., at 48. In fulfilling these responsibilities, Perich taught her students religion four days a week, and led them in prayer three times a day. Once a week, she took her students to a school-wide chapel service, and—about twice a year—she took her turn leading it, choosing the liturgy, selecting the hymns, and delivering a short message based on verses from the Bible. During her last year of teaching, Perich also led her fourth graders in a brief devotional exercise each morning. As a source of religious instruction, Perich performed an important role in transmitting the Lutheran faith to the next generation.

In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception.

In reaching a contrary conclusion, the Court of Appeals committed three errors. First, the Sixth Circuit failed to see any relevance in the fact that Perich was a commissioned minister. Although such a title, by itself, does not automatically ensure coverage, the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee's position. It was wrong for the Court of Appeals—and Perich, who has adopted the court's view, see Perich Brief 45—to say that an employee's title does not matter.

Second, the Sixth Circuit gave too much weight to the fact that lay teachers at the school performed the same religious duties as Perich. We express no view on whether someone with Perich's duties would be covered by the ministerial exception in the absence of the other considerations we have discussed. But though relevant, it cannot be dispositive that others not formally recognized as ministers by the church perform the same functions— particularly when, as here, they did so only because commissioned ministers were unavailable.

Third, the Sixth Circuit placed too much emphasis on Perich's performance of secular duties. It is true that her religious duties consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects. The EEOC regards that as conclusive, contending that any ministerial exception "should be limited to those employees who perform exclusively religious functions." Brief for Federal Respondent 51. We cannot accept [709] that view. Indeed, we are unsure whether any such employees exist. The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities.

Although the Sixth Circuit did not adopt the extreme position pressed here by the EEOC, it did regard the relative amount of time Perich spent performing religious functions as largely determinative. The issue before us, however, is not one that can be resolved by a stopwatch. The amount of time an employee spends on particular activities is relevant in assessing that employee's status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed and the other considerations discussed above.

Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer. The EEOC and Perich originally sought an order reinstating Perich to her former position as a called teacher. By requiring the Church to accept a minister it did not want, such an order would have plainly violated the Church's freedom under the Religion Clauses to select its own ministers.

Perich no longer seeks reinstatement, having abandoned that relief before this Court. See Perich Brief 58. But that is immaterial. Perich continues to seek frontpay in lieu of reinstatement, backpay, compensatory and punitive damages, and attorney's fees. An award of such relief would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination. Such relief would depend on a determination that Hosanna-Tabor was wrong to have relieved Perich of her position, and it is precisely such a ruling that is barred by the ministerial exception.^[3]

The EEOC and Perich suggest that Hosanna-Tabor's asserted religious reason for firing Perich—that she violated the Synod's commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church's decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter "strictly ecclesiastical," Kedroff, 344 U.S., at 119, 73 S.Ct. 143—is the church's alone.^[4]

[710] IV

The EEOC and Perich foresee a parade of horribles that will follow our recognition of a ministerial exception to employment discrimination suits. According to the EEOC and Perich, such an exception could protect religious organizations from liability for retaliating against employees for reporting criminal misconduct or for testifying before a grand jury or in a criminal trial. What is more, the EEOC contends, the logic of the exception would confer on religious employers "unfettered discretion" to violate employment laws by, for example, hiring children or aliens not authorized to work in the United States. Brief for Federal Respondent 29.

Hosanna-Tabor responds that the ministerial exception would not in any way bar criminal prosecutions for interfering with law enforcement investigations or other proceedings. Nor, according to the Church, would the exception bar government enforcement of general laws restricting eligibility for employment, because the exception applies only to suits by or on behalf of ministers themselves. Hosanna-Tabor also notes that the ministerial exception has been around in the lower courts for 40 years, see McClure v. Salvation Army, 460 F.2d 553, 558 (C.A.5 1972), and has not given rise to the dire consequences predicted by the EEOC and Perich.

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

* * *

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.

Justice THOMAS, concurring.

I join the Court's opinion. I write separately to note that, in my view, the Religion Clauses require civil courts to apply the ministerial exception and to defer to a religious organization's good-faith understanding of who qualifies as its minister. As the Court explains, the Religion Clauses guarantee religious organizations autonomy in matters of internal governance, including the selection of those who will minister the faith. A religious organization's right to choose its ministers would be hollow, however, if secular courts could second-guess the organization's sincere determination that a given employee is a "minister" under the organization's theological tenets. Our country's religious landscape includes organizations with different leadership structures and doctrines that influence their conceptions of ministerial status. The question whether an employee is a minister is itself religious in nature, and the answer will vary widely. [711] Judicial attempts to fashion a civil definition of "minister" through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the "mainstream" or unpalatable to some. Moreover, 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 regarding "ministers" to the prevailing secular understanding. See Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 336, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) ("[I]t is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission" (footnote omitted)). These are certainly dangers that the First Amendment was designed to guard against.

The Court thoroughly sets forth the facts that lead to its conclusion that Cheryl Perich was one of Hosanna-Tabor's ministers, and I agree that these facts amply demonstrate Perich's ministerial role. But the evidence demonstrates that Hosanna-Tabor sincerely considered Perich a minister. That would be sufficient for me to conclude that Perich's suit is properly barred by the ministerial exception.

Justice ALITO, with whom Justice KAGAN joins, concurring.

I join the Court's opinion, but I write separately to clarify my understanding of the significance of formal ordination and designation as a "minister" in determining whether an "employee"^[5] of a religious group falls within the so-called "ministerial" exception. The term "minister" is commonly used by many Protestant denominations to refer to members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists.^[6] In addition, the concept of ordination as understood by most Christian churches and by Judaism has no clear counterpart in some Christian denominations and some other religions. Because virtually every religion in the world is represented in the population of the United States, it would be a mistake if the term "minister" or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one. Instead, courts should focus on the function performed by persons who work for religious bodies.

The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other [712] religious ceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groups must be free to choose the personnel who are essential to the performance of these functions.

The "ministerial" exception should be tailored to this purpose. It should apply to any "employee" who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group's right to remove the employee from his or her position.

I

Throughout our Nation's history, religious bodies have been the preeminent example of private associations that have "act[ed] as critical buffers between the individual and the power of the State." Roberts v. United States Jaycees, 468 U.S. 609, 619, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). In a case like the one now before us—where the goal of the civil law in question, the elimination of discrimination against persons with disabilities, is so worthy—it is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs. The Constitution guarantees religious bodies "independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952).

Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance. Different religions will have different views on exactly what qualifies as an important religious position, but it is nonetheless possible to identify a general category of "employees" whose functions are essential to the independence of practically all religious groups. These include those who serve in positions of leadership, those who perform important functions in worship services and in the performance of religious ceremonies and rituals, and those who are entrusted with teaching and conveying the tenets of the faith to the next generation.

Applying the protection of the First Amendment to roles of religious leadership, worship, ritual, and expression focuses on the objective functions that are important for the autonomy of any religious group, regardless of its beliefs. As we have recognized in a similar context, "[f]orcing a group to accept certain members may impair [its ability] to express those views, and only those views, that it intends to express." Boy Scouts of America v. Dale, 530 U.S. 640, 648, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). That principle applies with special force with respect to religious groups, whose very existence is dedicated to the collective expression and propagation of shared religious ideals. See Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 882, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (noting that the constitutional interest in freedom of association may be "reinforced by Free Exercise Clause concerns"). As the Court notes, the First Amendment "gives special solicitude to the rights of [713] religious organizations," ante, at 706, but our expressive-association cases are nevertheless useful in pointing out what those essential rights are. Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.

When it comes to the expression and inculcation of religious doctrine, there can be no doubt that the messenger matters. Religious teachings cover the gamut from moral conduct to metaphysical truth, and both the content and credibility of a religion's message depend vitally on the character and conduct of its teachers. A religion cannot depend on someone to be an effective advocate for its religious vision if that person's conduct fails to live up to the religious precepts that he or she espouses. For this reason, a religious body's right to self-governance must include the ability to select, and to be selective about, those who will serve as the very "embodiment of its message" and "its voice to the faithful." Petruska v. Gannon Univ., 462 F.3d 294, 306 (C.A.3 2006). A religious body's control over such "employees" is an essential component of its freedom to speak in its own voice, both to its own members and to the outside world.

The connection between church governance and the free dissemination of religious doctrine has deep roots in our legal tradition:

"The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed." Watson v. Jones, 13 Wall. 679, 728-729, 20 L.Ed. 666 (1872).

The "ministerial" exception gives concrete protection to the free "expression and dissemination of any religious doctrine." The Constitution leaves it to the collective conscience of each religious group to determine for itself who is qualified to serve as a teacher or messenger of its faith.

II

A

The Court's opinion today holds that the "ministerial" exception applies to Cheryl Perich (hereinafter respondent), who is regarded by the Lutheran Church-Missouri Synod as a commissioned minister. But while a ministerial title is undoubtedly relevant in applying the First Amendment rule at issue, such a title is neither necessary nor sufficient. As previously noted, most faiths do not employ the term "minister," and some eschew the concept of formal ordination.^[7] And at the opposite end of the spectrum, some faiths consider the ministry to consist of all or a very large [714] percentage of their members.^[8] Perhaps this explains why, although every circuit to consider the issue has recognized the "ministerial" exception, no circuit has made ordination status or formal title determinative of the exception's applicability.

The Fourth Circuit was the first to use the term "ministerial exception," but in doing so it took pains to clarify that the label was a mere shorthand. See Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1168 (1985) (noting that the exception's applicability "does not depend upon ordination but upon the function of the position"). The Fourth Circuit traced the exception back to McClure v. Salvation Army, 460 F.2d 553 (C.A.5 1972), which invoked the Religion Clauses to bar a Title VII sex-discrimination suit brought by a woman who was described by the court as a Salvation Army "minister," id., at 554, although her actual title was "officer." See McClure v. Salvation Army, 323 F.Supp. 1100, 1101 (N.D.Ga. 1971). A decade after McClure, the Fifth Circuit made clear that formal ordination was not necessary for the "ministerial" exception to apply. The court held that the members of the faculty at a Baptist seminary were covered by the exception because of their religious function in conveying church doctrine, even though some of them were not ordained ministers. See EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (1981).

The functional consensus has held up over time, with the D.C. Circuit recognizing that "[t]he ministerial exception has not been limited to members of the clergy." EEOC v. Catholic Univ., 83 F.3d 455, 461 (1996). The court in that case rejected a Title VII suit brought by a Catholic nun who claimed that the Catholic University of America had denied her tenure for a canon-law teaching position because of her gender. The court noted that "members of the Canon Law Faculty perform the vital function of instructing those who will in turn interpret, implement, and teach the law governing the Roman Catholic Church and the administration of its sacraments. Although Sister McDonough is not a priest, she is a member of a religious order who sought a tenured professorship in a field that is of fundamental importance to the spiritual mission of her Church." Id., at 464. See also Natal v. Christian and Missionary Alliance, 878 F.2d 1575, 1578 (C.A.1 1989) (stating that "a religious organization's fate is inextricably bound up with those whom it entrusts with the responsibilities of preaching its word and ministering to its adherents," and noting "the difficulties inherent in separating the message from the messenger").

The Ninth Circuit too has taken a functional approach, just recently reaffirming that "the ministerial exception encompasses more than a church's ordained ministers." Alcazar v. Corp. of Catholic Archbishop of Seattle, 627 F.3d 1288, 1291 (2010) (en banc); see also Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 958 (C.A.9 2004). The Court's opinion today should not be read to upset this consensus.

B

The ministerial exception applies to respondent because, as the Court notes, she played a substantial role in "conveying the Church's message and carrying out its mission." Ante, at 708. She taught religion to her students four days a week and took them to chapel on the fifth day. She led them in daily devotional exercises, and led them in prayer three times a day. She [715] also alternated with the other teachers in planning and leading worship services at the school chapel, choosing liturgies, hymns, and readings, and composing and delivering a message based on Scripture.

It makes no difference that respondent also taught secular subjects. While a purely secular teacher would not qualify for the "ministerial" exception, the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones. What matters is that respondent played an important role as an instrument of her church's religious message and as a leader of its worship activities. Because of these important religious functions, Hosanna-Tabor had the right to decide for itself whether respondent was religiously qualified to remain in her office.

Hosanna-Tabor discharged respondent because she threatened to file suit against the church in a civil court. This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails.^[9] In Hosanna-Tabor's view, respondent's disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church's faith. Respondent does not dispute that the Lutheran Church subscribes to a doctrine of internal dispute resolution, but she argues that this was a mere pretext for her firing, which was really done for nonreligious reasons.

For civil courts to engage in the pretext inquiry that respondent and the Solicitor General urge us to sanction would dangerously undermine the religious autonomy that lower court case law has now protected for nearly four decades. In order to probe the real reason for respondent's firing, a civil court—and perhaps a jury— would be required to make a judgment about church doctrine. The credibility of Hosanna-Tabor's asserted reason for terminating respondent's employment could not be assessed without taking into account both the importance that the Lutheran Church attaches to the doctrine of internal dispute resolution and the degree to which that tenet compromised respondent's religious function. If it could be shown that this belief is an obscure and minor part of Lutheran doctrine, it would be much more plausible for respondent to argue that this doctrine was not the real reason for her firing. If, on the other hand, the doctrine is a central and universally known tenet of Lutheranism, then the church's asserted reason for her discharge would seem much more likely to be nonpretextual. But whatever the truth of the matter might be, the mere adjudication of such questions would pose grave problems for religious autonomy: It would require calling witnesses to testify about the importance and priority of the religious doctrine in question, with a civil factfinder sitting in ultimate judgment of what the accused church really believes, and how important that belief is to the church's overall mission.

At oral argument, both respondent and the United States acknowledged that a pretext inquiry would sometimes be prohibited by principles of religious autonomy, and both conceded that a Roman Catholic priest who is dismissed for getting married [716] could not sue the church and claim that his dismissal was actually based on a ground forbidden by the federal antidiscrimination laws. See Tr. of Oral Arg. 38-39, 50. But there is no principled basis for proscribing a pretext inquiry in such a case while permitting it in a case like the one now before us. The Roman Catholic Church's insistence on clerical celibacy may be much better known than the Lutheran Church's doctrine of internal dispute resolution, but popular familiarity with a religious doctrine cannot be the determinative factor.

What matters in the present case is that Hosanna-Tabor believes that the religious function that respondent performed made it essential that she abide by the doctrine of internal dispute resolution; and the civil courts are in no position to second-guess that assessment. This conclusion rests not on respondent's ordination status or her formal title, but rather on her functional status as the type of employee that a church must be free to appoint or dismiss in order to exercise the religious liberty that the First Amendment guarantees.

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[1] The ADA itself provides religious entities with two defenses to claims of discrimination that arise under subchapter I of the Act. The first provides that "[t]his subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such [entity] of its activities." § 12113(d)(1) (2006 ed., Supp. III). The second provides that "[u]nder this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization." § 12113(d)(2). The ADA's prohibition against retaliation, § 12203(a), appears in a different subchapter—subchapter IV. The EEOC and Perich contend, and Hosanna-Tabor does not dispute, that these defenses therefore do not apply to retaliation claims.

[2] See Natal v. Christian and Missionary Alliance, 878 F.2d 1575, 1578 (C.A.1 1989); Rweyemamu v. Cote, 520 F.3d 198, 204-209 (C.A.2 2008); Petruska v. Gannon Univ., 462 F.3d 294, 303-307 (C.A.3 2006); EEOC v. Roman Catholic Diocese, 213 F.3d 795, 800-801 (C.A.4 2000); Combs v. Central Tex. Annual Conference, 173 F.3d 343, 345-350 (C.A.5 1999); Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225-227 (C.A.6 2007); Schleicher v. Salvation Army, 518 F.3d 472, 475 (C.A.7 2008); Scharon v. St. Luke's Episcopal Presbyterian Hospitals, 929 F.2d 360, 362-363 (C.A.8 1991); Werft v. Desert Southwest Annual Conference, 377 F.3d 1099, 1100-1104 (C.A.9 2004); Bryce v. Episcopal Church, 289 F.3d 648, 655-657 (C.A.10 2002); Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1301-1304 (C.A.11 2000); EEOC v. Catholic Univ., 83 F.3d 455, 460-463 (C.A.D.C.1996).

[3] Perich does not dispute that if the ministerial exception bars her retaliation claim under the ADA, it also bars her retaliation claim under Michigan law.

[4] A conflict has arisen in the Courts of Appeals over whether the ministerial exception is a jurisdictional bar or a defense on the merits. Compare Hollins, 474 F.3d, at 225 (treating the exception as jurisdictional); and Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1038-1039 (C.A.7 2006) (same), with Petruska, 462 F.3d, at 302 (treating the exception as an affirmative defense); Bryce, 289 F.3d, at 654 (same); Bollard v. California Province of Soc. of Jesus, 196 F.3d 940, 951 (C.A.9 1999) (same); and Natal, 878 F.2d, at 1576 (same). We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is "whether the allegations the plaintiff makes entitle him to relief," not whether the court has "power to hear [the] case." Morrison v. National Australia Bank Ltd., 561 U.S. ___, ___, 130 S.Ct. 2869, 2877, 177 L.Ed.2d 535 (2010) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.

[5] It is unconventional to refer to many persons who clearly fall within the "ministerial" exception, such as Protestant ministers, Catholic priests, and Jewish rabbis, as "employees," but I use the term in the sense in which it is used in the antidiscrimination laws that are often implicated in cases involving the exception. See, e.g., 42 U.S.C. § 2000e(f) (Title VII); § 12111(4)(ADA); 29 U.S.C. § 630(f) (ADEA); § 206(e) (Equal Pay Act and Fair Labor Standards Act).

[6] See 9 Oxford English Dictionary 818 (2d ed. 1989) (def. 4(b)) (noting the term "minister" used in various phrases "applied as general designations for a person officially charged with spiritual functions in the Christian Church"); 9 Encyclopedia of Religion 6044-6045 (2d ed. 2005). See also, e.g., 9 New Catholic Encyclopedia 870 (1967).

[7] In Islam, for example, "every Muslim can perform the religious rites, so there is no class or profession of ordained clergy. Yet there are religious leaders who are recognized for their learning and their ability to lead communities of Muslims in prayer, study, and living according to the teaching of the Qur'an and Muslim law." 10 Encyclopedia of Religion 6858 (2d ed. 2005).

[8] For instance, Jehovah's Witnesses consider all baptized disciples to be ministers. See The Watchtower, Who Are God's Ministers Today? Nov. 15, 2000, p. 16 ("According to the Bible, all Jehovah's worshippers—heavenly and earthly—are ministers").

[9] See The Lutheran Church-Missouri Synod, Commission on Theology and Church Relations, 1 Corinthians 6:1-11: An Exegetical Study, p. 10 (Apr. 1991) (stating that instead of suing each other, Christians should seek "an amicable settlement of differences by means of a decision by fellow Christians"). See also 1 Corinthians 6:1-7 ("If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints?").

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

[491] Solicitor General McCree argued the cause for petitioner. With him on the briefs were Kenneth S. Geller, John S. Irving, Carl L. Taylor, Norton J. Come, and Carol A. De Deo.

Don H. Reuben argued the cause for respondents. With him on the brief were Lawrence Gunnels, James A. Serritella, James A. Klenk, and Jerome J. O'Dowd.^[*]

Briefs of amici curiae urging affirmance were filed by Leo Pfeffer and Earl W. Trent, Jr., for the Baptist Joint Committee on Public Affairs; by Thomas Stephen Neuberger for the Center for Law and Religious Freedom of the Christian Legal Society; by Warren L. Johns, Walter E. Carson, Lee Boothby, and Robert J. Hickey for the General Conference of Seventh-Day Adventists; and by David Goldberger and Barbara P. O'Toole for the Roger Baldwin Foundation of the American Civil Liberties Union, Inc., Illinois Division.

Briefs of amici curiae were filed by Lawrence A. Poltrock and Bruce E. Endy for the American Federation of Teachers (AFL-CIO); by Sharp Whitmore for certain Catholic High Schools in the Archdiocese of Los Angeles and the Diocese of Orange; and by George E. Reed and Patrick F. Geary for the United States Catholic Conference.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

This case arises out of the National Labor Relations Board's exercise of jurisdiction over lay faculty members at two groups of Catholic high schools. We granted certiorari to consider two questions: (a) Whether teachers in schools operated by a church to teach both religious and secular subjects are within the jurisdiction granted by the National Labor Relations Act; and (b) if the Act authorizes such jurisdiction, does its exercise violate the guarantees of the Religion Clauses of the First Amendment? 434 U. S. 1061 (1978).

[492] I

One group of schools is operated by the Catholic Bishop of Chicago, a corporation sole; the other group is operated by the Diocese of Fort Wayne-South Bend, Inc. The group operated by the Catholic Bishop of Chicago consists of two schools, Quigley North and Quigley South.^[1] Those schools are termed "minor seminaries" because of their role in educating high school students who may become priests. At one time, only students who manifested a positive and confirmed desire to be priests were admitted to the Quigley schools. In 1970, the requirement was changed so that students admitted to these schools need not show a definite inclination toward the priesthood. Now the students need only be recommended by their parish priest as having a potential for the priesthood or for Christian leadership. The schools continue to provide special religious instruction not offered in other Catholic secondary schools. The Quigley schools also offer essentially the same college-preparatory curriculum as public secondary schools. Their students participate in a variety of extracurricular activities which include secular as well as religious events. The schools are recognized by the State and accredited by a regional educational organization.^[2]

The Diocese of Fort Wayne-South Bend, Inc., has five high schools.^[3] Unlike the Quigley schools, the special recommendation [493] of a priest is not a prerequisite for admission. Like the Quigley schools, however, these high schools seek to provide a traditional secular education but oriented to the tenets of the Roman Catholic faith; religious training is also mandatory. These schools are similarly certified by the State.^[4]

In 1974 and 1975, separate representation petitions were filed with the Board by interested union organizations for both the Quigley and the Fort Wayne-South Bend schools; representation was sought only for lay teachers.^[5] The schools challenged the assertion of jurisdiction on two grounds: (a) that they do not fall within the Board's discretionary jurisdictional criteria; and (b) that the Religion Clauses of the First Amendment preclude the Board's jurisdiction. The Board rejected the jurisdictional arguments on the basis of its decision in Roman Catholic Archdiocese of Baltimore, 216 N. L. R. B. 249 (1975). There the Board explained that its policy was to decline jurisdiction over religiously sponsored organizations "only when they are completely religious, not just religiously associated." Id., at 250. Because neither group of schools was found to fall within the Board's "completely religious" category, the Board ordered elections. Catholic Bishop of Chicago, 220 N. L. R. B. 359 (1975).^[6]

[494] In the Board-supervised election at the Quigley schools, the Quigley Education Alliance, a union affiliated with the Illinois Education Association, prevailed and was certified as the exclusive bargaining representative for 46 lay teachers. In the Diocese of Fort Wayne-South Bend, the Community Alliance for Teachers of Catholic High Schools, a similar union organization, prevailed and was certified as the representative for the approximately 180 lay teachers. Notwithstanding the Board's order, the schools declined to recognize the unions or to bargain. The unions filed unfair labor practice complaints with the Board under §§ 8 (a) (1) and (5) of the National Labor Relations Act, 49 Stat. 452, as amended, 29 U. S. C. §§ 158 (a) (1) and (5). The schools opposed the General Counsel's motion for summary judgment, again challenging the Board's exercise of jurisdiction over religious schools on both statutory and constitutional grounds.

The Board reviewed the record of previous proceedings and concluded that all of the arguments had been raised or could have been raised in those earlier proceedings. Since the arguments had been rejected previously, the Board granted summary judgment, holding that it had properly exercised its statutory discretion in asserting jurisdiction over these schools.^[7] The Board concluded that the schools had violated the Act and ordered that they cease their unfair labor practices and that they bargain collectively with the unions. Catholic [495] Bishop of Chicago, 224 N. L. R. B. 1221 (1976); Diocese of Fort Wayne-South Bend, Inc., 224 N. L. R. B. 1226 (1976).

II

The schools challenged the Board's orders in petitions to the Court of Appeals for the Seventh Circuit. That court denied enforcement of the Board's orders. 559 F. 2d 1112 (1977).^[8] The court considered the Board's actions in relation to its discretion in choosing to extend its jurisdiction only to religiously affiliated schools that were not "completely religious." It concluded that the Board had not properly exercised its discretion, because the Board's distinction between "completely religious" and "merely religiously associated" failed to provide a workable guide for the exercise of discretion:

"We find the standard itself to be a simplistic black or white, purported rule containing no borderline demarcation of where `completely religious' takes over or, on the other hand, ceases. In our opinion the dichotomous `completely religious—merely religiously associated' standard provides no workable guide to the exercise of discretion. The determination that an institution is so completely a religious entity as to exclude any viable secular components obviously implicates very sensitive questions of faith and tradition. See, e. g., [Wisconsin v.] Yoder, . . . 406 U. S. 205 [(1972)]." Id., at 1118.

The Court of Appeals recognized that the rejection of the Board's policy as to church-operated schools meant that the Board would extend its jurisdiction to all church-operated [496] schools. The court therefore turned to the question of whether the Board could exercise that jurisdiction, consistent with constitutional limitations. It concluded that both the Free Exercise Clause and the Establishment Clause of the First Amendment foreclosed the Board's jurisdiction. It reasoned that from the initial act of certifying a union as the bargaining agent for lay teachers the Board's action would impinge upon the freedom of church authorities to shape and direct teaching in accord with the requirements of their religion. It analyzed the Board's action in this way:

"At some point, factual inquiry by courts or agencies into such matters [separating secular from religious training] would almost necessarily raise First Amendment problems. If history demonstrates, as it does, that Roman Catholics founded an alternative school system for essentially religious reasons and continued to maintain them as an `integral part of the religious mission of the Catholic Church,' Lemon [v. Kurtzman, 403 U. S. 602], 616 [(1971)], courts and agencies would be hard pressed to take official or judicial notice that these purposes were undermined or eviscerated by the determination to offer such secular subjects as mathematics, physics, chemistry, and English literature." Ibid.

The court distinguished local regulations which required fire inspections or state laws mandating attendance, reasoning that they did not "have the clear inhibiting potential upon the relationship between teachers and employers with which the present Board order is directly concerned." Id., at 1124. The court held that interference with management prerogatives, found acceptable in an ordinary commercial setting, was not acceptable in an area protected by the First Amendment. "The real difficulty is found in the chilling aspect that the requirement of bargaining will impose on the exercise of the bishops' control of the religious mission of the schools." Ibid.

[497] III

The Board's assertion of jurisdiction over private schools is, as we noted earlier, a relatively recent development. Indeed, in 1951 the Board indicated that it would not exercise jurisdiction over nonprofit, educational institutions because to do so would not effectuate the purposes of the Act. Trustees of Columbia University in the City of New York, 97 N. L. R. B. 424. In 1970, however, the Board pointed to what it saw as an increased involvement in commerce by educational institutions and concluded that this required a different position on jurisdiction. In Cornell University, 183 N. L. R. B. 329, the Board overruled its Columbia University decision. Cornell University was followed by the assertion of jurisdiction over nonprofit, private secondary schools. Shattuck School, 189 N. L. R. B. 886 (1971). See also Judson School, 209 N. L. R. B. 677 (1974). The Board now asserts jurisdiction over all private, nonprofit, educational institutions with gross annual revenues that meet its jurisdictional requirements whether they are secular or religious. 29 CFR § 103.1 (1978). See, e. g., Academia San Jorge, 234 N. L. R. B. 1181 (1978) (advisory opinion stating that Board would not assert jurisdiction over Catholic educational institution which did not meet jurisdictional standards); Windsor School, Inc., 199 N. L. R. B. 457, 200 N. L. R. B. 991 (1972) (declining jurisdiction where private, proprietary school did not meet jurisdictional amounts).

That broad assertion of jurisdiction has not gone unchallenged. But the Board has rejected the contention that the Religion Clauses of the First Amendment bar the extension of its jurisdiction to church-operated schools. Where the Board has declined to exercise jurisdiction, it has done so only on the grounds of the employer's minimal impact on commerce. Thus, in Association of Hebrew Teachers of Metropolitan Detroit, 210 N. L. R. B. 1053 (1974), the Board did not assert jurisdiction over the Association which offered [498] courses in Jewish culture in after-school classes, a nursery school, and a college. The Board termed the Association an "isolated instance of [an] atypical employer." Id., at 1058-1059. It explained: "Whether an employer falls within a given `class' of enterprise depends upon those of its activities which are predominant and give the employing enterprise its character. . . . [T]he fact that an employer's activity. . . is dedicated to a sectarian religious purpose is not a sufficient reason for the Board to refrain from asserting jurisdiction." Id., at 1058. Cf. Board of Jewish Education of Greater Washington, D. C., 210 N. L. R. B. 1037 (1974). In the same year the Board asserted jurisdiction over an Association chartered by the State of New York to operate diocesan high schools. Henry M. Hald High School Assn., 213 N. L. R. B. 415 (1974). It rejected the argument that its assertion of jurisdiction would produce excessive governmental entanglement with religion. In the Board's view, the Association had chosen to entangle itself with the secular world when it decided to hire lay teachers. Id., at 418 n. 7.^[9]

When it ordered an election for the lay professional employees at five parochial high schools in Baltimore in 1975, the Board reiterated its belief that exercise of its jurisdiction is not contrary to the First Amendment:

"[T]he Board's policy in the past has been to decline jurisdiction over similar institutions only when they are completely religious, not just religiously associated, and the Archdiocese concedes that instruction is not limited to religious subjects. That the Archdiocese seeks to provide an education based on Christian principles does not lead to a contrary conclusion. Most religiously associated institutions seek to operate in conformity with [499] their religious tenets." Roman Catholic Archdiocese of Baltimore, 216 N. L. R. B., at 250.

The Board also rejected the First Amendment claims in Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, 223 N. L. R. B. 1218, 1218 (1976): "Regulation of labor relations does not violate the First Amendment when it involves a minimal intrusion on religious conduct and is necessary to obtain [the Act's] objective." (Emphasis added.)

The Board thus recognizes that its assertion of jurisdiction over teachers in religious schools constitutes some degree of intrusion into the administration of the affairs of church-operated schools. Implicit in the Board's distinction between schools that are "completely religious" and those "religiously associated" is also an acknowledgment of some degree of entanglement. Because that distinction was measured by a school's involvement with commerce, however, and not by its religious association, it is clear that the Board never envisioned any sort of religious litmus test for determining when to assert jurisdiction. Nevertheless, by expressing its traditional jurisdictional standards in First Amendment terms, the Board has plainly recognized that intrusion into this area could run afoul of the Religion Clauses and hence preclude jurisdiction on constitutional grounds.

IV

That there are constitutional limitations on the Board's actions has been repeatedly recognized by this Court even while acknowledging the broad scope of the grant of jurisdiction. The First Amendment, of course, is a limitation on the power of Congress. Thus, if we were to conclude that the Act granted the challenged jurisdiction over these teachers we would be required to decide whether that was constitutionally permissible under the Religion Clauses of the First Amendment.

[500] Although the respondents press their claims under the Religion Clauses, the question we consider first is whether Congress intended the Board to have jurisdiction over teachers in church-operated schools. In a number of cases the Court has heeded the essence of Mr. Chief Justice Marshall's admonition in Murray v. The Charming Betsy, 2 Cranch 64, 118 (1804), by holding that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available. Moreover, the Court has followed this policy in the interpretation of the Act now before us and related statutes.

In Machinists v. Street, 367 U. S. 740 (1961), for example, the Court considered claims that serious First Amendment questions would arise if the Railway Labor Act were construed to allow compulsory union dues to be used to support political candidates or causes not approved by some members. The Court looked to the language of the Act and the legislative history and concluded that they did not permit union dues to be used for such political purposes, thus avoiding "serious doubt of [the Act's] constitutionality." Id., at 749.

Similarly in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10 (1963), a case involving the Board's assertion of jurisdiction over foreign seamen, the Court declined to read the National Labor Relations Act so as to give rise to a serious question of separation of powers which in turn would have implicated sensitive issues of the authority of the Executive over relations with foreign nations. The international implications of the case led the Court to describe it as involving "public questions particularly high in the scale of our national interest." Id., at 17. Because of those questions the Court held that before sanctioning the Board's exercise of jurisdiction " `there must be present the affirmative intention of the Congress clearly expressed.' " Id., at 21-22 (quoting Benz v. Compania Naviera Hidalgo, 353 U. S. 138, 147 (1957)).

[501] The values enshrined in the First Amendment plainly rank high "in the scale of our national values." In keeping with the Court's prudential policy it is incumbent on us to determine whether the Board's exercise of its jurisdiction here would give rise to serious constitutional questions. If so, we must first identify "the affirmative intention of the Congress clearly expressed" before concluding that the Act grants jurisdiction.

V

In recent decisions involving aid to parochial schools we have recognized the critical and unique role of the teacher in fulfilling the mission of a church-operated school. What was said of the schools in Lemon v. Kurtzman, 403 U. S. 602, 617 (1971), is true of the schools in this case: "Religious authority necessarily pervades the school system." The key role played by teachers in such a school system has been the predicate for our conclusions that governmental aid channeled through teachers creates an impermissible risk of excessive governmental entanglement in the affairs of the church-operated schools. For example, in Lemon, supra, at 617, we wrote:

"In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook's content is ascertainable, but a teacher's handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation." (Emphasis added.)

Only recently we again noted the importance of the teacher's function in a church school: "Whether the subject is `remedial reading,' `advanced reading,' or simply `reading,' a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists." Meek v. Pittenger, 421 U. S. 349, 370 (1975). Cf. [502] Wolman v. Walter, 433 U. S. 229, 244 (1977). Good intentions by government—or third parties—can surely no more avoid entanglement with the religious mission of the school in the setting of mandatory collective bargaining than in the well-motivated legislative efforts consented to by the church-operated schools which we found unacceptable in Lemon, Meek, and Wolman.

The Board argues that it can avoid excessive entanglement since it will resolve only factual issues such as whether an anti-union animus motivated an employer's action. But at this stage of our consideration we are not compelled to determine whether the entanglement is excessive as we would were we considering the constitutional issue. Rather, we make a narrow inquiry whether the exercise of the Board's jurisdiction presents a significant risk that the First Amendment will be infringed.

Moreover, it is already clear that the Board's actions will go beyond resolving factual issues. The Court of Appeals' opinion refers to charges of unfair labor practices filed against religious schools. 559 F. 2d, at 1125, 1126. The court observed that in those cases the schools had responded that their challenged actions were mandated by their religious creeds. The resolution of such charges by the Board, in many instances, will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school's religious mission. It is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions.^[10]

The Board's exercise of jurisdiction will have at least one other impact on church-operated schools. The Board will be called upon to decide what are "terms and conditions of [503] employment" and therefore mandatory subjects of bargaining. See 29 U. S. C. § 158 (d). Although the Board has not interpreted that phrase as it relates to educational institutions, similar state provisions provide insight into the effect of mandatory bargaining. The Oregon Court of Appeals noted that "nearly everything that goes on in the schools affects teachers and is therefore arguably a `condition of employment.' " Springfield Education Assn. v. Springfield School Dist. No. 19, 24 Ore. App. 751, 759, 547 P. 2d 647, 650 (1976).

The Pennsylvania Supreme Court aptly summarized the effect of mandatory bargaining when it observed that the "introduction of a concept of mandatory collective bargaining, regardless of how narrowly the scope of negotiation is defined, necessarily represents an encroachment upon the former autonomous position of management." Pennsylvania Labor Relations Board v. State College Area School Dist., 461 Pa. 494, 504, 337 A. 2d 262, 267 (1975). Cf. Clark County School Dist. v. Local Government Employee-Management Relations Board, 90 Nev. 442, 447, 530 P. 2d 114, 117-118 (1974). See M. Lieberman & M. Moskow, Collective Negotiations for Teachers 221-247 (1966). Inevitably the Board's inquiry will implicate sensitive issues that open the door to conflicts between clergy-administrators and the Board, or conflicts with negotiators for unions. What we said in Lemon, supra, at 616, applies as well here:

"[P]arochial schools involve substantial religious activity and purpose.

"The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid." (Footnote omitted.)

Mr. Justice Douglas emphasized this in his concurring opinion in Lemon, noting "the admitted and obvious fact that the raison d'êetre of parochial schools is the propagation of a religious faith." 403 U.S., at 628.

[504] The church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school. We see no escape from conflicts flowing from the Board's exercise of jurisdiction over teachers in church-operated schools and the consequent serious First Amendment questions that would follow. We therefore turn to an examination of the National Labor Relations Act to decide whether it must be read to confer jurisdiction that would in turn require a decision on the constitutional claims raised by respondents.

VI

There is no clear expression of an affirmative intention of Congress that teachers in church-operated schools should be covered by the Act. Admittedly, Congress defined the Board's jurisdiction in very broad terms; we must therefore examine the legislative history of the Act to determine whether Congress contemplated that the grant of jurisdiction would include teachers in such schools.

In enacting the National Labor Relations Act in 1935, Congress sought to protect the right of American workers to bargain collectively. The concern that was repeated throughout the debates was the need to assure workers the right to organize to counterbalance the collective activities of employers which had been authorized by the National Industrial Recovery Act. But congressional attention focused on employment in private industry and on industrial recovery. See, e. g., 79 Cong. Rec. 7573 (1935) (remarks of Sen. Wagner), 2 National Labor Relations Board, Legislative History of the National Labor Relations Act, 1935, pp. 2341-2343 (1949).

Our examination of the statute and its legislative history indicates that Congress simply gave no consideration to church-operated schools. It is not without significance, however, that the Senate Committee on Education and Labor chose a college professor's dispute with the college as an example of [505] employer-employee relations not covered by the Act. S. Rep. No. 573, 74th Cong., 1st Sess., 7 (1935), 2 Legislative History, supra, at 2307.

Congress' next major consideration of the jurisdiction of the Board came during the passage of the Labor Management Relations Act of 1947—the Taft-Hartley Act. In that Act Congress amended the definition of "employer" in § 2 of the original Act to exclude nonprofit hospitals. 61 Stat. 137, 29 U. S. C. § 152 (2) (1970 ed.). There was some discussion of the scope of the Board's jurisdiction but the consensus was that nonprofit institutions in general did not fall within the Board's jurisdiction because they did not affect commerce. See H. R. 3020, 80th Cong., 1st Sess. (1947), 1 National Labor Relations Board, Legislative History of the Labor Management Relations Act, 1947, p. 34 (1948) (hereinafter Leg. Hist.); H. R. Rep. No. 245, 80th Cong., 1st Sess., 12 (1947), 1 Leg. Hist. 303; H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 3, 32 (1947), 1 Leg. Hist. 507, 536; 93 Cong. Rec. 4997 (1947), 2 Leg. Hist. 1464 (remarks of Sens. Tydings and Taft).^[11]

The most recent significant amendment to the Act was passed in 1974, removing the exemption of nonprofit hospitals. Pub. L. 93-360, 88 Stat. 395. The Board relies upon that amendment as showing that Congress approved the Board's exercise of jurisdiction over church-operated schools. A close examination of that legislative history, however, reveals nothing to indicate an affirmative intention that such schools be within the Board's jurisdiction. Since the Board did not assert jurisdiction over teachers in a church-operated [506] school until after the 1974 amendment, nothing in the history of the amendment can be read as reflecting Congress' tacit approval of the Board's action.

During the debate there were expressions of concern about the effect of the bill on employees of religious hospitals whose religious beliefs would not permit them to join a union. 120 Cong. Rec. 12946, 16914 (1974), Legislative History of the Coverage of Nonprofit Hospitals under the National Labor Relations Act, 1974, 93d Cong., 2d Sess., 118, 331-332 (1974) (remarks of Sen. Ervin and Rep. Erlenborn). The result of those concerns was an amendment which reflects congressional sensitivity to First Amendment guarantees:

"Any employee of a health care institution who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment; except that such employee may be required, in lieu of periodic dues and initiation fees, to pay sums equal to such dues and initiation fees to a nonreligious charitable fund exempt from taxation under section 501 (c) (3) of title 26, chosen by such employee from a list of at least three such funds, designated in a contract between such institution and a labor organization, or if the contract fails to designate such funds, then to any such fund chosen by the employee." 29 U. S. C. § 169.

The absence of an "affirmative intention of the Congress clearly expressed" fortifies our conclusion that Congress did not contemplate that the Board would require church-operated schools to grant recognition to unions as bargaining agents for their teachers.

The Board relies heavily upon Associated Press v. NLRB, [507] 301 U. S. 103 (1937). There the Court held that the First Amendment was no bar to the application of the Act to the Associated Press, an organization engaged in collecting information and news throughout the world and distributing it to its members. Perceiving nothing to suggest that application of the Act would infringe First Amendment guarantees of press freedoms, the Court sustained Board jurisdiction. Id., at 131-132. Here, on the contrary, the record affords abundant evidence that the Board's exercise of jurisdiction over teachers in church-operated schools would implicate the guarantees of the Religion Clauses.

Accordingly, in the absence of a clear expression of Congress' intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.

Affirmed.

APPENDIX TO OPINION OF THE COURT

Q. [by Hearing Officer] Now, we have had quite a bit of testimony already as to liturgies, and I don't want to beat a dead horse; but let me ask you one question: If you know, how many liturgies are required at Catholic parochial high schools; do you know?

A. I think our first problem with that would be defining liturgies. That word would have many definitions. Do you want to go into that?

Q. I believe you defined it before, is that correct, when you first testified?

A. I am not sure. Let me try briefly to do it again, okay?

Q. Yes.

A. A liturgy can range anywhere from the strictest sense of the word, which is the sacrifice of the Mass in the Roman [508] Catholic terminology. It can go from that all the way down to a very informal group in what we call shared prayer.

Two or three individuals praying together and reflecting their own reactions to a scriptural reading. All of these—and there is a big spectrum in between those two extremes—all of these are popularly referred to as liturgies.

Q. I see.

A. Now, possibly in repeating your question, you could give me an idea of that spectrum, I could respond more accurately.

Q. Well, let us stick with the formal Masses. If you know, how many Masses are required at Catholic parochial high schools?

A. Some have none, none required. Some would have two or three during the year where what we call Holy Days of Obligation coincide with school days. Some schools on those days prefer to have a Mass within the school day so the students attend there, rather than their parish churches. Some schools feel that is not a good idea; they should always be in their parish church; so that varies a great deal from school to school.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE, MR. JUSTICE MARSHALL, and MR. JUSTICE BLACKMUN join, dissenting.

The Court today holds that coverage of the National Labor Relations Act does not extend to lay teachers employed by church-operated schools. That construction is plainly wrong in light of the Act's language, its legislative history, and this Court's precedents. It is justified solely on the basis of a canon of statutory construction seemingly invented by the Court for the purpose of deciding this case. I dissent.

I

The general principle of construing statutes to avoid unnecessary constitutional decisions is a well-settled and salutary [509] one. The governing canon, however, is not that expressed by the Court today. The Court requires that there be a "clear expression of an affirmative intention of Congress" before it will bring within the coverage of a broadly worded regulatory statute certain persons whose coverage might raise constitutional questions. Ante, at 504. But those familiar with the legislative process know that explicit expressions of congressional intent in such broadly inclusive statutes are not commonplace. Thus, by strictly or loosely applying its requirement, the Court can virtually remake congressional enactments. This flouts Mr. Chief Justice Taft's admonition "that amendment may not be substituted for construction, and that a court may not exercise legislative functions to save [a] law from conflict with constitutional limitation." Yu Cong Eng v. Trinidad, 271 U. S. 500, 518 (1926). See Aptheker v. Secretary of State, 378 U. S. 500, 515 (1964); Jay v. Boyd, 351 U. S. 345, 357 n. 21 (1956); Shapiro v. United States, 335 U. S. 1, 31, and n. 40 (1948); United States v. Sullivan, 332 U. S. 689, 693 (1948); Hopkins Savings Assn. v. Cleary, 296 U. S. 315, 335 (1935).^[12]

[510] The settled canon for construing statutes wherein constitutional questions may lurk was stated in Machinists v. Street, 367 U. S. 740 (1961), cited by the Court, ante, at 500:

" `When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' Crowell v. Benson, 285 U. S. 22, 62." Id., at 749-750 (emphasis added).^[13]

Accord, Pernell v. Southall Realty, 416 U. S. 363, 365 (1974); Johnson v. Robison, 415 U. S. 361, 367 (1974); Curtis v. Loether, 415 U. S. 189, 192 n. 6 (1974); Ashwander v. TVA, 297 U. S. 288, 348 (1936) (Brandeis, J., concurring); Moore Ice Cream Co. v. Rose, 289 U. S. 373, 379 (1933). This limitation to constructions that are "fairly possible," and "reasonable," see Yu Cong Eng v. Trinidad, supra, at 518, acts as a [511] brake against wholesale judicial dismemberment of congressional enactments. It confines the judiciary to its proper role in construing statutes, which is to interpret them so as to give effect to congressional intention. The Court's new "affirmative expression" rule releases that brake.

II

The interpretation of the National Labor Relations Act announced by the Court today is not "fairly possible." The Act's wording, its legislative history, and the Court's own precedents leave "the intention of the Congress . . . revealed too distinctly to permit us to ignore it because of mere misgivings as to power." Moore Ice Cream Co. v. Rose, supra, at 379. Section 2 (2) of the Act, 29 U. S. C. § 152 (2), defines "employer" as

". . . any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization." (Emphasis added.)

Thus, the Act covers all employers not within the eight express exceptions. The Court today substitutes amendment for construction to insert one more exception—for church-operated schools. This is a particularly transparent violation of the judicial role: The legislative history reveals that Congress itself considered and rejected a very similar amendment.

The pertinent legislative history of the NLRA begins with the Wagner Act of 1935, 49 Stat. 449. Section 2 (2) of that Act, identical in all relevant respects to the current section, excluded from its coverage neither church-operated schools [512] nor any other private nonprofit organization.^[14] Accordingly, in applying that Act, the National Labor Relations Board did not recognize an exception for nonprofit employers, even when religiously associated.^[15] An argument for an implied nonprofit exemption was rejected because the design of the Act was as clear then as it is now: "[N]either charitable institutions nor their employees are exempted from operation of the Act by its terms, although certain other employers and employees are exempted." Central Dispensary & Emergency Hospital, 44 N. L. R. B. 533, 540 (1942) (footnotes omitted), enf'd, 79 U. S. App. D. C. 274, 145 F. 2d 852 (1944). Both the lower courts and this Court concurred in the Board's construction. See Polish National Alliance v. NLRB, 322 U. S. 643 (1944), aff'g 136 F. 2d 175 (CA7 1943); Associated Press v. NLRB, 301 U. S. 103 (1937), aff'g 85 F. 2d 56 (CA2 1936); NLRB v. Central Dispensary & Emergency Hospital, 79 U. S. App. D. C. 274, 145 F. 2d 852 (1944).

The Hartley bill, which passed the House of Representatives [513] in 1947, would have provided the exception the Court today writes into the statute:

"The term `employer' . . . shall not include . . . any corporation, community chest, fund, or foundation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, . . . no part of the net earnings of which inures to the benefit of any private shareholder or individual. . . ." (Emphasis added.) H. R. 3020, 80th Cong., 1st Sess., § 2 (2) (Apr. 18, 1947), reprinted in National Labor Relations Board, Legislative History of the Labor Management Relations Act, 1947, pp. 160-161 (hereinafter, 1947 Leg. Hist.).

But the proposed exception was not enacted.^[16] The bill reported by the Senate Committee on Labor and Public Welfare did not contain the Hartley exception. See S. 1126, 80th Cong., 1st Sess., § 2 (2) (Apr. 17, 1947), 1947 Leg. Hist. 99, 102. Instead, the Senate proposed an exception limited to nonprofit hospitals, and passed the bill in that form. See H. R. 3020, 80th Cong., 1st Sess., § 2 (2) (Senate, May 13, 1947), 1947 Leg. Hist. 226, 229. The Senate version was accepted by the House in conference, thus limiting the exception [514] for nonprofit employers to nonprofit hospitals. Ch. 120, 61 Stat. 136.^[17]

Even that limited exemption was ultimately repealed in 1974. Pub. L. 93-360, 88 Stat. 395. In doing so, Congress confirmed the view of the Act expressed here: that it was intended to cover all employers—including nonprofit employers— unless expressly excluded, and that the 1947 amendment excluded only nonprofit hospitals. See H. R. Rep. No. 93-1051, [515] p. 4 (1974), reprinted in Senate Committee on Labor and Public Welfare, Legislative History of the Coverage of Nonprofit Hospitals under the National Labor Relations Act, 1974, p. 272 (Comm. Print 1974) (hereafter 1974 Leg. Hist.); 120 Cong. Rec. 12938 (1974), 1974 Leg. Hist. 95 (Sen. Williams); 120 Cong. Rec. 16900 (1974), 1974 Leg. Hist. 291 (Rep. Ashbrook).^[18] Moreover, it is significant that in considering the 1974 amendments, the Senate expressly rejected an amendment proposed by Senator Ervin that was analogous to the one the Court today creates—an amendment to exempt nonprofit hospitals operated by religious groups. 120 Cong. Rec. 12950, 12968 (1974), 1974 Leg. Hist. 119, 141. Senator Cranston, floor manager of the Senate Committee bill and primary opponent of the proposed religious exception, explained:

"[S]uch an exception for religiously affiliated hospitals would seriously erode the existing national policy which holds religiously affiliated institutions generally such as proprietary nursing homes, residential communities, and educational facilities to the same standards as their nonsectarian counterparts." 120 Cong. Rec. 12957 (1974), 1974 Leg. Hist. 137 (emphasis added).

[516] See also ibid. (Sen. Javits); 120 Cong. Rec. 12957 (1974), 1974 Leg. Hist. 138 (Sen. Williams).^[19]

In construing the Board's jurisdiction to exclude church-operated schools, therefore, the Court today is faithful to neither the statute's language nor its history. Moreover, it is also untrue to its own precedents. "This Court has consistently declared that in passing the National Labor Relations Act, Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause. See, e. g., Guss v. Utah Labor Board, 353 U. S. 1, 3; Polish Alliance v. Labor Board, 322 U. S. 643, 647-648; Labor Board v. Fainblatt, 306 U. S. 601, 607." NLRB v. Reliance Fuel Oil Corp., 371 U. S. 224, 226 (1963) (emphasis in original). As long as an employer is within the reach of Congress' power under the Commerce Clause—and no one doubts that respondents are—the Court has held him to be covered by the Act regardless of the nature of his activity. See, e. g., Polish National Alliance v. NLRB, 322 U. S. 643 (1944) (nonprofit fraternal organization). Indeed, Associated Press v. NLRB, 301 U. S. 103 (1937), construed the Act to [517] cover editorial employees of a nonprofit news-gathering organization despite a claim—precisely parallel to that made here—that their inclusion rendered the Act in violation of the First Amendment.^[20] Today's opinion is simply unable to explain the grounds that distinguish that case from this one.^[21]

Thus, the available authority indicates that Congress intended to include—not exclude—lay teachers of church-operated schools. The Court does not counter this with evidence that Congress did intend an exception it never stated. Instead, despite the legislative history to the contrary, it construes the Act as excluding lay teachers only because Congress did not state explicitly that they were covered. In Mr. Justice Cardozo's words, this presses "avoidance of a [518] difficulty . . . to the point of disingenuous evasion." Moore Ice Cream Co. v. Rose, 289 U. S., at 379.^[22]

III

Under my view that the NLRA includes within its coverage lay teachers employed by church-operated schools, the constitutional questions presented would have to be reached. I do not now do so only because the Court does not. See Sierra Club v. Morton, 405 U. S. 727, 755 (1972) (BRENNAN, J., dissenting). I repeat for emphasis, however, that while the resolution of the constitutional question is not without difficulty, it is irresponsible to avoid it by a cavalier exercise in statutory interpretation which succeeds only in defying congressional intent. A statute is not "a nose of wax to be changed from that which the plain language imports . . . ." Yu Cong Eng v. Trinidad, 271 U. S., at 518.

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[*] J. Albert Woll and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.

[1] The Catholic Bishop operates other schools in the Chicago area, but they were not involved in the proceedings before the Board.

[2] As explained to the Board's Hearing Officer, in Illinois the term "approval" is distinct from "recognition." Before a school may operate, it must be approved by the State's Department of Education. Approval is given when a school meets the minimal requirements under state law, such as for compulsory attendance; approval does not require any evaluation of the school's program. Recognition, which is not required to operate, is given only after the school has passed the State's evaluation.

[3] The Diocese also has 47 elementary schools. They were not involved in the proceedings before the Board.

[4] As explained to the Board's Hearing Officer, "certification" by the State of Indiana is roughly equivalent to "recognition" by the State of Illinois. Both are voluntary procedures which involve some evaluation by the state educational authorities.

[5] The certification and order cover only "all full-time and regular part-time lay teachers, including physical education teachers . . .; and excluding rectors, procurators, dean of studies, business manager, director of student activities, director of formation, director of counseling services, office clerical employees, maintenance employees, cafeteria workers, watchmen, librarians, nurses, all religious faculty, and all guards and supervisors as defined in the Act . . . ." Catholic Bishop of Chicago, 220 N. L. R. B. 359, 360 (1975).

[6] The decision concerning the Diocese of Fort Wayne-South Bend, Inc., is not reported.

[7] The Board relied on its reasoning in Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, 223 N. L. R. B. 1218 (1976): "We also do not agree that the schools are religious institutions intimately involved with the Catholic Church. It has heretofore been the Board's policy to decline jurisdiction over institutions only when they are completely religious, not just religiously associated. Roman Catholic Archdiocese of Baltimore, Archdiocesan High Schools, 216 NLRB 249 (1975). The schools perform in part the secular function of educating children, and in part concern themselves with religious instruction. Therefore, we will not decline to assert jurisdiction over these schools on such a basis." 223 N. L. R. B., at 1218.

[8] Cf. Caulfield v. Hirsch, 95 LRRM 3164 (ED Pa. 1977) (enjoining Board from asserting jurisdiction over elementary schools in Archdiocese of Philadelphia). This case is presently under review by the Court of Appeals for the Third Circuit. See App. to Pet. for Cert. in Caulfield v. Hirsch, O. T. 1977, No. 77-1411, p. A76, cert. denied, 436 U. S. 957 (1978).

[9] The Board went on to explain that the rights guaranteed by § 7 of the Act, 29 U. S. C. § 157, were "a part of our national heritage established by Congress, [and] were a legitimate exercise of Congress' constitutional power." 213 N. L. R. B., at 418 n. 7.

[10] This kind of inquiry and its sensitivity are illustrated in the examination of Monsignor O'Donnell, the Rector of Quigley North, by the Board's Hearing Officer, which is reproduced in the appendix to this opinion.

[11] The National Labor Relations Act was amended again when Congress passed the Labor-Management Reporting and Disclosure Act in 1959. 73 Stat. 519. That Act made no changes in the definition of "employer" and the legislative history contains no reference to church-operated schools. See generally National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959 (1959).

[12] The Court's new canon derives from the statement, " `there must be present the affirmative intention of the Congress clearly expressed,' " in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 21-22 (1963). Reliance upon that case here is clearly misplaced. The question in McCulloch was whether the National Labor Relations Act. extended to foreign seamen working aboard foreign-flag vessels. No question as to the constitutional power of Congress to cover foreign crews was presented. Indeed, all parties agreed that Congress was constitutionally empowered to reach the foreign seamen involved while they were in American waters. Id.,at 17. The only question was whether Congress had intended to do so.

The McCulloch Court held that Congress had not meant to reach disputes between foreign shipowners and their foreign crews. McCulloch, however, did not turn simply upon an absence of affirmative evidence that Congress wanted to reach alien seamen, but rather upon the fact, as a prior case had already held, that the legislative history " `inescapably describe[d] the boundaries of the Act as including only the workingmen of our own country and its possessions,' " Id., at 18, quoting Benz v. Compania Naviera Hidalgo, 353 U. S. 138, 144 (1957). The Court also noted that under well-established rules of international law, "the law of the flag state ordinarily governs the internal affairs of a ship. See Wildenhus's Case, [120 U. S. 1,] 12." 372 U. S., at 21. In light of that contrary legislative history and domestic and international precedent, it is not at all surprising that McCulloch balked at holding foreign seamen covered without a strong affirmative showing of congressional intent. As the Court today admits, there is no such contrary legislative history or precedent with respect to jurisdiction over church-operated schools. Ante, at 504. The McCulloch statement, therefore, has no role to play in this case.

[13] In Street, the Court construed the Railway Labor Act as not permitting the use of an employee's compulsorily checked-off union dues for political causes with which he disagreed. As in McCulloch, see n. 1, supra, it so held not because of an absence of affirmative evidence that Congress did mean to permit such uses, but rather because the language and history of the Act indicated affirmatively that Congress did not mean to permit such constitutionally questionable practices. See 367 U. S., at 765-770.

[14] Section 2 (2), 49 Stat. 450, stated:

"The term `employer' includes any person acting in the interest of an employer, directly or indirectly, but shall not include the United States, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization."

[15] See Christian Board of Publication, 13 N. L. R. B. 534, 537 (1939), enf'd, 113 F. 2d 678 (CA8 1940); American Medical Assn., 39 N. L. R. B. 385, 386 (1942); Central Dispensary & Emergency Hospital, 44 N. L. R. B. 533, 539 (1942), enf'd, 79 U. S. App. D. C. 274, 145 F. 2d 852 (1944); Henry Ford Trade School, 58 N. L. R. B. 1535, 1536 (1944); Polish National Alliance, 42 N. L. R. B. 1375, 1380 (1942), enf'd, 136 F. 2d 175 (CA7 1943), aff'd, 322 U. S. 643 (1944); Associated Press, 1 N. L. R. B. 788, 790, enf'd, 85 F. 2d 56 (CA2 1936), aff'd, 301 U. S. 103 (1937). In unpublished decisions, the Board also exercised jurisdiction over the YWCA and the Welfare & Recreational Association. See Central Dispensary & Emergency Hospital, 44 N. L. R. B., at 538 n. 8.

[16] A number of reasons were offered for the rejection of the Hartley bill's exception. Some Congressmen strongly opposed the exception, see 93 Cong. Rec. 3446 (1947) (remarks of Rep. Klein); some were opposed to additional exceptions to the Board's jurisdiction, see id., at 4997 (remarks of Sen. Taft); and some thought it unnecessary, see H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 32 (1947), 1947 Leg. Hist. 536. See generally NLRB v. Wentworth Institute, 515 F. 2d 550, 555 (CA1 1975) ("[P]erhaps the most obvious, interpretation of the rejection of the House exclusion would be that Congress meant to include nonprofit organizations [within the scope of the Act]"); Sherman & Black, The Labor Board and the Private Nonprofit Employer: A Critical Examination of the Board's Worthy Cause Exemption, 83 Harv. L. Rev. 1323, 1331-1337 (1970). But whatever the reasons, it is clear that an amendment similar to that made by the Court today was proposed and rejected in 1947.

[17] The Board's contemporaneous construction of the 1947 amendment was that only nonprofit hospitals were intended to be exempt. In 1950, for example, in asserting jurisdiction over a nonprofit religious organization, the Board stated:

"The Employer asserts that, as it is a nonprofit organization which is engaged in purely religious activities, it is not engaged in commerce within the meaning of the Act. We find no merit in this contention. . . . As this Board and the courts have held, it is immaterial that the Employer may be a nonprofit organization, or that its activities may be motivated by considerations other than those applicable to enterprises which are, in the generally accepted sense, commercial." Sunday School Board of the Southern Baptist Convention, 92 N. L. R. B. 801, 802.

It is true that in Trustees of Columbia University, 97 N. L. R. B. 424 (1951), the Board indicated that it would not exercise jurisdiction over nonprofit, educational institutions; but it expressly did so as a matter of discretion, affirming that the activities of the University did come within the Act and the Board's jurisdiction. Id., at 425. That 1951 discretionary decision does not undermine the validity of the Board's determination in Cornell University, 183 N. L. R. B. 329 (1970), that changing conditions—particularly the increasing impact of such institutions on interstate commerce—now required a change in policy leading to the renewed exercise of Board jurisdiction. As we emphasized in NLRB v. Weingarten, Inc., 420 U. S. 251, 265-266 (1975):

"To hold that the Board's earlier decisions froze the development of this important aspect of the national labor law would misconceive the nature of administrative decisionmaking. `"Cumulative experience" begets understanding and insight by which judgments . . . are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process.' NLRB v. Seven-Up Co., 344 U.S. 344, 349 (1953)."

[18] The House Report stated: "Currently, the only broad area of charitable, eleemosynary, educational institutions wherein the Board does not now exercise jurisdiction concerns the nonprofit hospitals, explicitly excluded by section 2 (2) of the Act. . . . [T]he bill removes the existing Taft-Hartley exemption in section 2 (2) of the Act. It restores to the employees of nonprofit hospitals the same rights and protections enjoyed by the employees of proprietary hospitals and most all other employees." H. R. Rep. No. 93-1051, p. 4 (1974), 1974 Leg. Hist. 272. Similarly, Senator Williams, Chairman of the Senate Committee on Labor and Public Welfare, criticized the nonprofit-hospital exemption as "not only inconsistent with the protection enjoyed by proprietary hospitals and other types of health care institutions, but it is also inconsistent with the coverage of other nonprofit activities." 120 Cong. Rec. 12938 (1974), 1974 Leg. Hist. 95. See also 120 Cong. Rec. 16900 (1974), 1974 Leg. Hist. 291 (Rep. Ashbrook).

[19] The Court relies upon the fact that the 1974 amendments provided that "[a]ny employee of a health care institution who is a member of . . . a bona fide religion . . . which has historically held conscientious objections to joining . . . labor organizations shall not be required to join . . . any labor organization as a condition of employment . . . ." 29 U. S. C. § 169 (emphasis added). This is, of course, irrelevant to the instant case, as no employee has alleged that he was required to join a union against his religious principles and not even the respondent employers contend that collective bargaining itself is contrary to their religious beliefs. Recognizing this, the Court has limited its inference from the amendment to the proposition that it reflects "congressional sensitivity to First Amendment guarantees." Ante, at 506. This is quite true, but its usefulness as support for the Court's opinion is completely negated by the rejection of the Ervin amendment, see text, supra, which makes clear the balance struck by Congress. While Congress agreed to exclude conscientiously objecting employees, it expressly refused to sanction an exclusion for all religiously affiliated employers.

[20] Associated Pressstated the employer's argument as follows:

"The conclusion which the petitioner draws is that whatever may be the case with respect to employees in its mechanical departments it must have absolute and unrestricted freedom to employ and to discharge those who, like Watson, edit the news, that there must not be the slightest opportunity for any bias or prejudice personally entertained by an editorial employee to color or to distort what he writes, and that the Associated Press cannot be free to furnish unbiased and impartial news reports unless it is equally free to determine for itself the partiality or bias of editorial employees. So it is said that any regulation protective of union activities, or the right collectively to bargain on the part of such employees, is necessarily an invalid invasion of the freedom of the press." 301 U. S., at 131.

[21] The Court would distinguish Associated Press on the ground that there the Court "[p]erceiv[ed] nothing to suggest that application of the Act would infringe First Amendment guarantees . . . [while h]ere, on the contrary, the record affords abundant evidence that the Board's exercise of jurisdiction . . . would implicate the guarantees of the Religion Clauses." Ante, at 507. But this is mere assertion. The Court does not explain why the press' First Amendment problem in Associated Press was any less substantial than the church-supported schools' First Amendment challenge here. In point of fact, the problems raised are of precisely the same difficulty. The Court therefore cannot square its judicial "reconstruction" of the Act in this case with the refusal to rewrite the same Act in Associated Press.

[22] Not even the Court's redrafting of the statute causes all First Amendment problems to disappear. The Court's opinion implies limitation of its exception to church-operated schools. That limitation is doubtless necessary since this Court has already rejected a more general exception for nonprofit organizations. See Polish National Alliance v. NLRB, 322 U. S. 643 (1944). But such an exemption, available only to church-operated schools, generates a possible Establishment Clause question of its own. Walz v. Tax Comm'n, 397 U. S. 664 (1970), does not put that question to rest, for in upholding the property tax exemption for churches there at issue, we emphasized that New York had "not singled out . . . churches as such; rather, it has granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations . . . ." Id., at 673. Like the Court, "at this stage of [my] consideration [I am] not compelled to determine whether the [Establishment Clause problem] is [as significant] as [I] would were [I] considering the constitutional issue." Ante, at 502. It is enough to observe that no matter which way the Court turns in interpreting the Act, it cannot avoid constitutional questions.

[1337] Nicholas Trott Long argued the cause and filed the briefs for petitioner.

Gene C. Schaerr argued the cause for amici curiae Association of Southern Baptist Colleges and Schools, et al., in support of petitioner. With him on the brief were James D. Jordan, Nicholas P. Miller, Joshua N. Schopf and Jeffrey A. Berman.

David A. Seid, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Arthur F. Rosenfeld, General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David Habenstreit, Supervisory Attorney.

J.C. Weingartner and David J. Strom were on the brief for intervenor.

Before: SENTELLE and ROGERS, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

The University of Great Falls ("University") petitions this Court for review of a National Labor Relations Board's ("NLRB" or "Board") Decision and Order in an unfair labor practice proceeding against the University. University of Great Falls, 331 N.L.R.B. No. 188, 2000 WL 1283042 (Aug. 31, 2000) ("Great Falls"). The University argues that it is exempt from NLRB jurisdiction under the doctrine of NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), and the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (1994). The Board, however, concluded that the University did not "have a `substantial religious character,'" and asserted jurisdiction. Great Falls, 331 N.L.R.B. No. 188, at 4. Because we agree with petitioner that it is exempt from NLRB jurisdiction under Catholic Bishop, we grant the petition for review, vacate the decision and order, and deny the Board's cross-petition for enforcement. Because we determine that the NLRB lacks jurisdiction over the University, we do not reach the University's alternative claim that the Board erred in its determination that the collective bargaining unit included faculty, but not deans, as non-managerial employees.

I. Background

On October 16, 1995, the Montana Federation of Teachers, AFT, AFL-CIO ("the Union") petitioned the NLRB to recognize the Union as the collective bargaining agent for the faculty of the University of Great Falls. The University declined to recognize the Union. The NLRB's Regional Director ordered a hearing. In that hearing and in all subsequent administrative proceedings, the University raised and [1338] preserved two principal objections to Board jurisdiction over it under the National Labor Relations Act ("NLRA" or "Act"). First, the University argued, the Board lacks jurisdiction over the University of Great Falls because it is a religiously operated institution not subject to the NLRA pursuant to the Supreme Court's decision in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). Second, the University argued, even if it were subject to the jurisdiction of the Board, the Board could not order it to engage in collective bargaining with the Union because to do so would violate the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. (1994) ("RFRA"), by substantially burdening the religious freedom of the University and its owners — Sisters of Providence, a Roman Catholic religious order — in the absence of a compelling governmental interest. While the University also preserved its objection to the bargaining unit, it is the religious/jurisdictional issues that are dispositive of the present litigation.

After the hearing, the NLRB Regional Director issued a decision extensively exploring the evidence of religious faith, practice and mission at the University and ultimately concluded that Catholic Bishop did not preclude Board jurisdiction over the University because "the propagation of a religious faith is not a primary purpose of UGF. Rather, the purpose and function of the institution are primarily secular." Decision and Direction of Election, University of Great Falls, Case 19-RC-13114, slip op. at 11 (NLRB Region 19, Feb. 20, 1996). As to the RFRA argument, the Director concluded that a collective bargaining order would not substantially burden the institution's free exercise of religion and that RFRA does not preclude the NLRB's assertion of jurisdiction over the employer. The Regional Director ordered the representation election by mail ballot of a defined faculty bargaining unit. The election occurred between March 8 and March 26, 1996, but the ballots were impounded pending an administrative review of the Director's decision. In the administrative review, the Board considered only the Religious Freedom Restoration Act issue and the bargaining unit objection. In November of 1997 it affirmed the Regional Director as to the bargaining unit, and ruled that the Religious Freedom Restoration Act argument was moot by reason of the Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), which it construed as declaring the RFRA unconstitutional. See University of Great Falls, 325 N.L.R.B. 83, 83 n. 2, 1997 WL 730651 (1997).

Following affirmance, the Regional Director issued a supplemental order in January 1998 certifying the Union as the exclusive collective bargaining representative of the faculty bargaining unit. Thereafter, the Union requested that the University bargain collectively. The University refused. The Board's Acting General Counsel issued an unfair labor practice ("ULP") against the University for its refusal to bargain collectively. The Board heard the case on cross-motions for summary judgment. After receiving the briefs of the parties on the RFRA issue, and reviewing the evidence received by the Regional Director in the representation and election proceedings, the Board granted the summary judgment motion of the general counsel, denied the motion of the University, and held that the University had committed an unfair labor practice by its refusal to bargain with the Union as the exclusive representative of the bargaining unit under sections 8(a)(5) and (1) of the Act. Great Falls, 331 N.L.R.B. No. 188, at 4.

[1339] Unlike the earlier proceedings, the Board did not dispense with RFRA on the basis of its unconstitutionality under City of Boerne v. Flores. The Board recognized that City of Boerne addressed only the constitutionality of the Act as applied to state and local law; that two circuits, the Eighth in Christians v. Crystal Evangelical Free Church, 141 F.3d 854 (8th Cir.), cert. denied, 525 U.S. 811, 119 S.Ct. 43, 142 L.Ed.2d 34 (1998), and the Ninth in Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826 (9th Cir.1999), had held explicitly that the Supreme Court's decision did not invalidate RFRA as applied to federal law; and that two others, including this one, had issued decisions assuming without deciding that RFRA is constitutional as applied to federal law. See Adams v. Commissioner of Internal Revenue, 170 F.3d 173 (3d Cir.1999); Alamo v. Clay, 137 F.3d 1366 (D.C.Cir.1998). The Board further "recognized that it is beyond its authority, as an administrative agency, to adjudicate the constitutionality of congressional enactments ... a matter left to the courts." Great Falls, 331 N.L.R.B. No. 188, at 1. Therefore, the Board proceeded on the assumption that RFRA is constitutional as a limitation on federal statutory interpretation. The Board, however, ultimately determined that RFRA is not implicated in this case because, in the Board's view, the protection afforded the free exercise of religion under RFRA is less stringent than that provided to religious institutions under Catholic Bishop, and that therefore, if the Board's jurisdiction was not divested by Catholic Bishop, it plainly would survive the test of RFRA. The Board ruled that it did have jurisdiction under the Catholic Bishop test. The Board proceeded, then, to track the reasoning of the Regional Director, reviewing in detail the evidence of the religiosity of the University, and ultimately agreeing with the Regional Director that "the [University] is not involved with a religious institution in such a way that the Board's exercise of jurisdiction would even create a significant risk that First Amendment rights will be infringed." Id. at 4 (emphasis in original).

The Board therefore concluded that the Union continued as the exclusive representative of the bargaining unit under section 9(a) of the Act; that the refusal of the University to bargain was in violation of sections 8(a)(5) and (1) of the Act; and that the University had therefore engaged in unfair labor practices. The University filed the present petition for review.

II. Analysis

"Since Catholic Bishop, the Board has decided on a case-by-case basis whether a religion-affiliated school has a `substantial religious character'" and whether it is subject to the NLRB's jurisdiction and to the requirements of the National Labor Relations Act. Great Falls, 331 N.L.R.B. No. 188, at 2. "The Board has not relied solely on the employer's affiliation with a religious organization, but rather has evaluated the purpose of the employer's operations, the role of the unit employees in effectuating that purpose, and the potential effects if the Board exercised jurisdiction." Id. at 2-3 (emphasis added). In making this evaluation the "Board considers such factors as the involvement of the religious institution in the daily operation of the school, the degree to which the school has a religious mission and curriculum, and whether religious criteria are used for the appointment and evaluation of faculty." Id. at 3 (emphasis added). The NLRB "will consider, on a case-by-case basis, all aspects of a religious school's organization and function that [it deems] relevant." Trustee of St. Joseph's College, 282 N.L.R.B. 65, 68 n. 10, 1986 WL 54219 (1986).

[1340] In this case, the Regional Director rested his conclusion that the Board had jurisdiction on the proposition that "propagation of a religious faith is not the primary purpose of the [University], but rather that the University's purpose and function are primarily secular." Great Falls, 331 N.L.R.B. No. 188, at 3-4. In reaching the same conclusion on the unfair labor practice proceeding, the Board expressly approved the Regional Director's reasoning, noting that the finding relied, among other things, on the following: (1) the curriculum does not require the Catholic faith to be emphasized, nor is there in fact a particular emphasis on Catholicism; (2) the Respondent's board of trustees is not required to establish policies consistent with the Catholic religion; (3) the University's president and other administrators are lay persons who need not be members of the Catholic faith; (4) faculty members are not required to be Catholics, to teach Church doctrine, or to support the Church or its teachings; (5) students may come from any religious background, and no preference is given to applicants of the Catholic faith; of approximately 1450 students, only about 32 percent are Catholic; and (6) although undergraduate students are required to take one course in religious studies, the course does not have to be one involving Catholicism. Id. at 4. After reciting these express findings, the Board declared that "the Regional Director had ample grounds for his conclusion that the [University] does not have a `substantial religious character' as did the schools involved in Catholic Bishop." Id. Therefore, the Board again expressed its adoption of the Regional Director's conclusion.

The University, supported by religious institutions which also claim exemptions from NLRB jurisdiction under Catholic Bishop,^[1] contends that the very inquiry by the NLRB into the University's religious character, and the resulting determinations that the University "does not have a religious mission" and that "the propagation of a religious faith is not a primary purpose" of the University, University of Great Falls, Case 19-RC-13114, slip. op. at 10-11 (NLRB Region 19, Feb. 20, 1996), are in violation of the principles of the Supreme Court's decision in Catholic Bishop. We agree.

The Board reached the wrong conclusion because it applied the wrong test. As Catholic Bishop was decided on grounds of constitutional avoidance, we give no deference to the NLRB's application of this exemption to the National Labor Relations Act. Although we normally defer to an agency's interpretation of ambiguous statutory language under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), "here another even more important principle of judicial restraint weighs upon us," which is that "Federal courts traditionally have sought to avoid constitutional questions if at all possible." Meredith Corp. v. FCC, 809 F.2d 863, 872 (D.C.Cir.1987) (citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345-48, 56 S.Ct. 466, 482-84, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)). In other words, the constitutional [1341] avoidance canon of statutory interpretation trumps Chevron deference. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574-75, 108 S.Ct. 1392, 1397-98, 99 L.Ed.2d 645 (1988); Chamber of Commerce of United States v. FEC, 69 F.3d 600, 605 (D.C.Cir.1995); Bell Atlantic Telephone Cos. v. FCC, 24 F.3d 1441, 1445 (D.C.Cir.1994). The Supreme Court, in Catholic Bishop, construed the NLRA so as to avoid deciding whether jurisdiction "was constitutionally permissible under the Religion Clauses of the First Amendment." Catholic Bishop, 440 U.S. at 499, 99 S.Ct. at 1318. It did so in the absence of "`the affirmative intention of the Congress clearly expressed'" to impose Board "jurisdiction over teachers in church-operated schools." Id. at 500-01, 99 S.Ct. at 1318-19. The application of Catholic Bishop to the facts of this case is thus an interpretation of precedent, rather than a statute, and for the court an occasion calling for the exercise of constitutional avoidance. "We are not obligated to defer to an agency's interpretation of Supreme Court precedent under Chevron or any other principle." Akins v. FEC, 101 F.3d 731, 740 (D.C.Cir.1996) (en banc), vacated on other grounds, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998). "There is therefore no reason for courts — the supposed experts in analyzing judicial decisions — to defer to agency interpretations of the Court's opinions." Id. This is especially true where, as here, the Supreme Court precedent, and subsequent interpretation, is based on constitutional concerns, an area of presumed judicial, rather than administrative, competence. Id. In short, Chevron deference is not required. We therefore are governed by the Supreme Court's decision in Catholic Bishop, as we read it, not as it is read by the Board.

In Catholic Bishop the Court feared that NLRB jurisdiction over church-operated schools "will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the schools' religious mission." Catholic Bishop, 440 U.S. at 502, 99 S.Ct. at 1320 (emphasis added). As the Court stated, "[i]t is not only the conclusions that may be reached by the Board which may impinge on rights guaranteed by the Religion Clauses, but also the very process of inquiry leading to findings and conclusions." Id. (emphasis added). The Court predicted that if the NLRA conferred jurisdiction, the Board could not "avoid entanglement with the religious mission of the school in the setting of mandatory collective bargaining." Id. Here the Board has engaged in the sort of intrusive inquiry that Catholic Bishop sought to avoid. As the Court feared, the Board has gone "beyond resolving factual issues" and engaged in inquiry into the "religious mission" of the University. Id. Here the "very process of inquiry leading to findings and conclusions" by the Board, as well as the Board's conclusions have implicated the First Amendment concerns at issue in Catholic Bishop. See id. at 502, 99 S.Ct. at 1319-20. The NLRB's "substantial religious character" test with its multifaceted analysis not only creates the same constitutional concerns that led to the Supreme Court's decision in Catholic Bishop, it is so similar in principle to the approach rejected in Catholic Bishop that it is inevitable that we must reject this "new" approach.

Moreover, since Catholic Bishop, at least a plurality of the Supreme Court itself has rejected "inquiry into ... religious views" as "not only unnecessary but also offensive," Mitchell v. Helms, 530 U.S. 793, 828, 120 S.Ct. 2530, 2551, 147 L.Ed.2d 660 (2000) (plurality opinion), declaring that "[i]t is well established, in numerous other contexts, that courts should refrain [1342] from trolling through a person's or institution's religious beliefs." Id.; see also Employment Div., Dep't of Human Res. of Ore. v. Smith, 494 U.S. 872, 887, 110 S.Ct. 1595, 1604-05, 108 L.Ed.2d 876 (1990); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 718, 96 S.Ct. 2372, 2384-85, 49 L.Ed.2d 151 (1976). The prohibition on such intrusive inquiries into religious beliefs underlay the decision in Presiding Bishop v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987), in which the Supreme Court upheld an exemption in Title VII of the Civil Rights Act as applied to the firing of a janitor by a church-owned gymnasium. There the Court noted the difficulty of judicially deciding which activities of a religious organization were religious and which were secular. "The line is hardly a bright one," the Court observed, "and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission." Id. at 336, 107 S.Ct. at 2868-69. For this reason, even those Justices who filed separate concurrences in the judgment, expressed a belief that a non-profit institution owned or operated by a church should be exempted from "a case-by-case determination whether its nature is religious or secular" under Title VII. Id. at 340, 345, 107 S.Ct. at 2870-71, 2873.

Similar concerns were raised in Universidad Central de Bayamon v. NLRB, 793 F.2d 383 (1st Cir.1985) (en banc), a case with facts remarkably close to those before us. Bayamon involved a "`Catholic-oriented' institution of higher learning founded by the Dominican Order of the Roman Catholic Church," which "holds itself out to students, faculty and community as a Catholic school." 793 F.2d at 399-400. Writing for half of an equally-divided en banc court, then-Judge Breyer concluded that the analysis in Catholic Bishop applies equally well, not only to institutions that are "`pervasively sectarian,'" but also to a "college that seeks primarily to provide its students with a secular education, but which also maintains a subsidiary religious mission." Bayamon, 793 F.2d at 398-99. This conclusion is unsurprising; an exemption solely for "pervasively sectarian" schools would itself raise First Amendment concerns — discriminating between kinds of religious schools. See Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683, 72 L.Ed.2d 33 (1982) ("The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another"). Judge Breyer reasoned that "to fail to apply Catholic Bishop here is to undercut that opinion's basic rationale and purpose." Bayamon, 793 F.2d at 402. He found that Board jurisdiction posed just as great a risk of the "kind of `entanglement' — arising out of the inquiry process itself," as the Supreme Court feared in Catholic Bishop. Id. at 401. He concluded the NLRB's "ad hoc efforts, the application of which will themselves involve significant entanglement, are precisely what the Supreme Court in Catholic Bishop sought to avoid." Id. at 402-03. For the Board to exercise jurisdiction over an educational institution where "the inculcation of religious values is at least one purpose of the institution" and "to promise that courts in the future will control the Board's efforts to examine religious matters, is to tread the path that Catholic Bishop forecloses." Id. at 402 (emphasis in original).

Here too we have the NLRB trolling through the beliefs of the University, making determinations about its religious mission, and that mission's centrality to the "primary purpose" of the University. Smith teaches that "[i]t is no more appropriate for judges to determine the `centrality' of religious beliefs before applying a [1343] `compelling interest' test in the free exercise field, than it would be for them to determine the `importance' of ideas before applying the `compelling interest' test in the free speech field." Smith, 494 U.S. at 886-87, 110 S.Ct. at 1604-05. It cannot be any more appropriate for a Regional Director or the full Board to engage in such a determination. Indeed, "[j]udging the centrality of different religious practices is akin to the unacceptable `business of evaluating the relative merits of differing religious claims,'" but that is what the Board has set about doing. Id. at 887, 110 S.Ct. at 1604. The Supreme Court "[r]epeatedly and in many different contexts [has] 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., and that admonition is equally applicable to the agencies whose actions we review.

Despite its protestations to the contrary, the nature of the Board's inquiry boils down to "is it sufficiently religious?" The Regional Director's opinion approved by the Board and the NLRB's brief before this Court present a dissection of life and beliefs at the University. Before the NLRB's Hearing Officer, the University president was questioned about the nature of the University's religious beliefs and how the University's religious mission was implemented: "So what you are saying is that the first part of your Mission Statement here, to implement the Gospel values and the teaching of Jesus within the Catholic tradition, may very well be sometimes contrary, which oftentimes it is, to other religious beliefs?" Transcript of Proceedings, University of Great Falls, Case 19-RC-13114, at 84, Dec. 12, 1994. The president was asked how to "jibe" the acceptance of other beliefs at the University with its teaching mission: "If we are teaching a course, we have a class here in witchcraft, and how do we meld that into the teaching of beliefs that Jesus and the strong Catholic tradition? They are contrary, aren't they?" Id. Further, the president was required to justify the method in which the University teaches gospel values, and to respond to doubts that it was legitimately "Catholic." He was asked, "What good is a Catholic institution unless we espouse the values and the teachings and the traditions of the Catholic Church?" Id. at 85. This is the exact kind of questioning into religious matters which Catholic Bishop specifically sought to avoid. Catholic Bishop, 440 U.S. at 502 n. 10 & 507-08, 99 S.Ct. at 1319 n. 10, 1322-23.

Catholic Bishop, along with the Court's subsequent decisions in Presiding Bishop v. Amos, Smith, and Mitchell, requires a different approach. Amici Curiae suggest a useful approach to applying Catholic Bishop that avoids the pitfalls encountered by the Board. This approach, drawn partially from Judge Breyer's controlling opinion in Bayamon, would exempt an institution if it (a) "holds itself out to students, faculty and community" as providing a religious educational environment (Bayamon, 793 F.2d at 400); (b) is organized as a "nonprofit" (Bayamon, 793 F.2d at 403; Catholic Bishop, 440 U.S. at 497, 99 S.Ct. at 1317); and (c) is affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion (Bayamon, 793 F.2d at 399-400; Catholic Bishop, 440 U.S. at 494, 99 S.Ct. at 1315-16). We find this Bayamon-based test to be such a useful and accurate method of applying Catholic Bishop that we adopt the same fully as to the first two steps, although we need not determine whether we reach the full expanse of the third step here. It is undisputed that the University is "affiliated with ... a recognized religious organization," that is, the [1344] Catholic Order of the Sisters of Providence, St. Ignatius Province. Therefore, we need not decide whether it would be sufficient that the school be, for example, indirectly controlled by an entity the membership of which was determined in part with reference to religion.

Our approach avoids the constitutional infirmities of the NLRB's "substantial religious character" test. It does not intrude upon the free exercise of religion nor subject the institution to questioning about its motives or beliefs. It does not ask about the centrality of beliefs or how important the religious mission is to the institution. Nor should it. "[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit First Amendment protection," Thomas v. Review Bd., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981), and to require an explanation of beliefs and how they are compatible with other aspects of life at the University is to tread upon that which the First Amendment protects. Further, this three-part approach avoids asking how effective the institution is at inculcating its beliefs, an irrelevant inquiry that permeates the NLRB proceedings below.

At the same time, however, it is a test that provides the Board and the courts with some assurance that the institutions availing themselves of the Catholic Bishop exemption are bona fide religious institutions. The first prong of the test, requiring an institution to show that it holds itself out as providing a religious educational environment, even if its principal academic focus is on "secular" subjects, Bayamon, 793 F.2d at 400, will help to ensure that the exemption is not given to wholly secular institutions that attempt to invoke it solely to avoid Board jurisdiction. Where a school, college, or university holds itself out publicly as a religious institution, "[w]e cannot doubt that [it] sincerely holds this view." Boy Scouts of America v. Dale, 530 U.S. 640, 653, 120 S.Ct. 2446, 2453, 147 L.Ed.2d 554 (2000). Indeed, whether an institution holds itself out to the public as religious may be a far more useful inquiry than any undertaken by the Board in this case. For such public representations serve as a market check. While public religious identification will no doubt attract some students and faculty to the institution, it will dissuade others. In other words, it comes at a cost. Such market responses will act as a check on institutions that falsely identify themselves as religious merely to obtain exemption from the NLRA. Thus, the requirement of public identification helps to ensure that only bona fide religious institutions are exempted.

The second element of the test, that the educational institution be organized as a non-profit entity, is consistent with the emphasis in Catholic Bishop and Amos on the distinction between non-profit institutions and profit-making businesses that may be owned by or affiliated with religious institutions. As the Amos Court noted, it is hard to draw a line between the secular and religious activities of a religious organization. See Amos, 483 U.S. at 336, 107 S.Ct. at 2868-69. However, it is relatively straight-forward to distinguish between a non-profit and a for-profit entity. It is also consistent with the history of the Board's interpretation of the NLRA: "As the Supreme Court observed in [Catholic Bishop], the Board's assertion of jurisdiction over nonprofit educational institutions is a relatively recent phenomenon." Bayamon, 793 F.2d at 403. Accordingly, non-profit institutions have a more compelling claim to a Catholic Bishop exemption than for-profit businesses.

Finally, as we observed above, the third element, at least in its simplest form, is [1345] directly analogous to Catholic Bishop. The school, college, or university must be "religiously affiliated." Catholic Bishop, 440 U.S. at 495, 99 S.Ct. at 1316.

This bright-line test will allow the Board to determine whether it has jurisdiction without delving into matters of religious doctrine or motive, and without coercing an educational institution into altering its religious mission to meet regulatory demands. At the same time, this approach provides reasonable assurance that the Catholic Bishop exemption will not be abused.

The University of Great Falls easily satisfies this test. In its course catalogue, mission statement, student bulletin, and other public documents, it unquestionably holds itself out to students, faculty, and the broader community as providing an education that, although primarily secular, is presented in an overtly religious, Catholic environment. The University presents itself as a "private, independent Catholic university sponsored by the Sisters of Providence within the jurisdiction of the Catholic Bishop of Great Falls-Billings." University of Great Falls Catalogue, 1995-96, at 4. The University's mission statement does not just speak of general morality, but rather of "offer[ing] students a foundation for actively implementing Gospel values and the teachings of Jesus within the Catholic tradition." University of Great Falls Mission Statement. The mission statement further explains that the University "provides students with the opportunity to obtain a liberal education for living and making a living," "[a]s an expression of the teaching mission of Jesus Christ." Id. To that end, the University "offers students a foundation for actively implementing Gospel values and the teachings of Jesus within the Catholic tradition." Id. It fills its campus, indeed, every classroom and office with Catholic icons, not merely as art, but it claims as an expression of faith. Even the NLRB's Regional Director conceded that the University "refers to itself as a Catholic institution. It is listed in the Catholic Directory, a compilation of all institutions in the country recognized by the Church as being Catholic institutions." Decision and Direction of Election, University of Great Falls, Case 19-RC-13114, slip op. at 6 (NLRB Region 19, Feb. 20, 1996). It is a not-for-profit educational institution. Finally, it is sponsored by, its campus is owned by, and control is ultimately reserved to, a recognized religious organization — the Sisters of Providence, a religious order of nuns. To probe further into the University's beliefs is to needlessly engage in the "trolling" that Amos, Smith, Mitchell, and Catholic Bishop itself sought to avoid.

One danger of the NLRB's "substantial religious character" approach, is that when the Board seeks to assert jurisdiction, it may minimize the legitimacy of the beliefs expressed by a religious entity. It may have done so here. By emphasizing that only one-third of the student body is Catholic; that the University has retained an open admission policy and is available to all regardless of race, color, gender, age, religion, marital status, sexual orientation, and national origin; that the faculty need not be Catholic; that mass is not required; and that other views, including other religious views are tolerated, even respected, on campus, the Board would minimize the religious nature of the University. After making much of what is consistent with open-mindedness, the Regional Director, and subsequently the Board, concludes that "the purpose and function of the institution are primarily secular." Decision and Direction of Election, University of Great Falls, Case 19-RC-13114, slip op. at 11 (NLRB Region 19, Feb. 20, 1996). [1346] Thus the Board contends that the University is not entitled to the Catholic Bishop exemption. However, "there is something impossibly artificial about limiting the right in question to associations that formally and consistently disparage people of the type that those associations seek to exclude." Laurence H. Tribe, Disentangling Symmetries: Speech, Association, Parenthood, 28 PEPP. L. REV. 641, 650 (2001) (referring to freedom of association). Just as "freedom [of association] must surely include the right to express one's philosophy in implicit rather than explicit ways, to prefer inculcating one's beliefs with a velvet glove rather than an iron fist, and to opt for articulating one's views positively rather than negatively, focusing on the part of the glass that is `half full' rather than on the part that is `half empty,'" id. at 648-49, so too must free exercise of religion — the freedom that Catholic Bishop sought to preserve. If the University is ecumenical and open-minded, that does not make it any less religious, nor NLRB interference any less a potential infringement of religious liberty. To limit the Catholic Bishop exemption to religious institutions with hard-nosed proselytizing, that limit their enrollment to members of their religion, and have no academic freedom, as essentially proposed by the Board in its brief, is an unnecessarily stunted view of the law, and perhaps even itself a violation of the most basic command of the Establishment Clause — not to prefer some religions (and thereby some approaches to indoctrinating religion) to others. See Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683, 72 L.Ed.2d 33 (1982).

The Board argues, no doubt correctly, that wholly secular institutions can and do teach "character, competence, and community," as well as other caring values and virtues. But that says nothing about the religious nature of the University. Neither does the University's employment of non-Catholic faculty and admission of non-Catholic students disqualify it from its claimed religious character. Religion may have as much to do with why one takes an action as it does with what action one takes. That a secular university might share some goals and practices with a Catholic or other religious institution cannot render the actions of the latter any less religious. The University of Great Falls in its mission statement defines its mission "as an expression of the teaching mission of Jesus Christ." In its expression of its philosophy and purpose, it calls upon its faculty and staff to join with the students in developing "character ... competence ... [and] commitment." But it goes further than that. It defines character in terms of recognition and acceptance of personal accountability by the students "to themselves, to society, and to God."

Likewise, the Board's analysis of the governing structure of the University is similarly inadequate to undermine the University's claim to religious exemption from Board jurisdiction. The Board stresses the role of the "secular" board of trustees in the control of the University. But, under the University's charter, the Sisters of Providence retain the ultimate authority to "adopt or change the mission, philosophy, and values," of the University, to "appoint and remove, with or without cause, the President of the University," to remove Trustees, to "approve the annual operating and capital budgets," and to "approve an annual or longer term strategic plan" for the University. Amended Bylaws of University of Great Falls (1995), at 2-3. That they choose not to exercise these powers may only demonstrate that they are satisfied that the University is fulfilling its religious mission. The president testified that he meets with the Sisters once a quarter, which is as frequently as the "secular" [1347] Board of Trustees convenes. The corporate structure is similar to that found in Trustee of St. Joseph's College, 282 N.L.R.B. 65, 1986 WL 54219 (1986), in which the Board allowed exemption. The NLRB's attempt to distinguish that case is unpersuasive. Both schools teach secular subjects, both offer mass but do not require it, both have non-Catholic faculty, both espouse belief in academic freedom. Both are religious schools trying to find their place in a twenty-first century world without giving up what makes them religious.

Under the Board's "substantial religious character" approach, it is hard to see what school or university that does not require attendance at religious services, or require students and faculty to be of a particular faith, would qualify for the Catholic Bishop exemption. Fortunately, as we have explained, Catholic Bishop does not require such a rigid approach, which would raise altogether different First Amendment concerns. Instead, in determining whether an institution is exempt from the NLRA under Catholic Bishop, the Board should consider whether the institution (a) holds itself out to the public as a religious institution; (b) is non-profit; and (c) is religiously affiliated.^[2] If so, then the Board must decline to exercise jurisdiction. Because we find the University of Great Falls to be such an institution, we grant the petition for review.

III. Other Claims

As the University is entitled to the Catholic Bishop exemption, we need not reach the University's claim that Board jurisdiction would violate the Religious Freedom Restoration Act, except to note the following: Contrary to the Board's view that "RFRA does not require the Board to alter the analysis that it has consistently undertaken under Catholic Bishop," Great Falls, 331 N.L.R.B. No. 188, at 3, RFRA presents a separate inquiry from Catholic Bishop. Under Catholic Bishop, the NLRB must determine whether an entity is altogether exempt from the NLRA. We have laid forth a bright-line test for the Board to use in making this determination. However, a ruling that an entity is not exempt from Board jurisdiction under Catholic Bishop may not foreclose a claim that requiring that entity to engage in collective bargaining would "substantially burden" its "exercise of religion." 42 U.S.C. § 2000bb-1(a). Moreover, even if the act of collective bargaining would not be a "substantial burden," RFRA might still be applicable if remedying a particular NLRA violation would be a "substantial burden." As none of these questions are properly before us, we need not explore them further. Also, because we have concluded that the University is not within the jurisdiction of the Board under the NLRA, we need not consider the University's alternative claim that the Board's determination of the bargaining unit was erroneous.

IV. Conclusion

The National Labor Relations Board's approach to determining jurisdiction under Catholic Bishop is flawed. The "substantial religious character" inquiry raises the same constitutional concerns that animated the Supreme Court's decision in Catholic Bishop. In applying the Supreme Court's jurisprudence, we inquire whether the institution (a) holds itself out to the public as a religious institution; (b) is nonprofit; and (c) is religiously affiliated. Because [1348] we find that the University of Great Falls meets these criteria, and therefore is exempt from NLRB jurisdiction under Catholic Bishop, we grant the petition for review, vacate the decision and order of the NLRB, and deny the Board's cross-petition for enforcement. It is

So ordered.

[1] The following entities filed a single Amicus Curiae brief in support of the University: The Association of Southern Baptist Colleges and Schools, The Association of Christian Schools International, Loma Linda University & Medical Center, Brigham Young University, Catholic University, University of the Incarnate Word, Pacific Union College, La Sierra University, Baylor University, Saint Leo University, The Seventh-Day Adventist Church-State Council, and Adventist Health.

[2] We need not and do not decide whether other indicia of religious character might replace "affiliation" in other cases.