P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)



ERD Case No. 199800592, EEOC Case No. 26G980894

An administrative law judge for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the administrative law judge. Based on its review, the commission agrees with the decision of the administrative law judge, and it adopts the findings and conclusion in that decision as its own.


The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed September 27, 1999
coryeti.rsd : 164 : 9

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


This case presents the question of whether the Division has jurisdiction to resolve a discrimination complaint involving an Officer position in the Salvation Army. The Wisconsin Court of Appeals has held that the religious protections embodied in the federal and state constitutions preclude the state from enforcing its discrimination laws against religious associations when the employment position at issue serves a "ministerial" or "ecclesiastical" function. Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 599 (Ct. App. 1995). The key to resolving this matter, therefore, rests in determining whether the Salvation Army is a religious association and, if so, whether the Officer position at issue serves a ministerial or ecclesiastical function.

Based upon the record created at the probable cause hearing, administrative law judges Brown and Olstad both found the respondent to be a church and its officers to be ministers. The commission agrees. The evidence presented before administrative law judge Brown, upon which administrative law judge Olstad relied in granting the respondent's motion to dismiss, (1) indicated that the respondent is an international religious organization and that, in the United States, it is divided into local units called "corps," which are the equivalent of churches. The evidence further established that graduates from the respondent's College for Officers were subsequently commissioned as ministers. Thus, there seems to be little question but that the respondent is, in fact, a church, and that its Officers serve what must be characterized as a ministerial or ecclesiastical function.

In deciding this case, the commission is cognizant of the fact that virtually the identical issue has already been adjudicated in another forum. In McClure v. Salvation Army, 323 F. Supp. 1100 (N.D. GA 1971) it was specifically held that the Salvation Army constitutes a church. (2) The district court further found that a Salvation Army Officer has received a divine call from God and has been accepted, trained and commissioned as a Salvation Army Officer, which is the equivalent to ordination. Id. at 1101. The Fifth Circuit Court of Appeals subsequently adopted the factual findings of the district court and concluded that the application of federal anti- discrimination laws to the relationship between the Salvation Army and the plaintiff, a Salvation Army Officer, which was tantamount to the relationship between a church and its minister, would cause the state to intrude upon matters of church administration and government which are matters of ecclesiastical concern and, as such, would violate the Free Exercise and Establishment Clauses of the First Amendment. McClure v. Salvation Army, 160 F.2d 553, 560 (5th Cir. 1972). Although in his petition the complainant urges the commission to disregard the McClure decision, contending that it was based upon "false evidence" and should be overturned, the complainant has failed to coherently explain the flaw in McClure, and the commission considers it both factually and legally on point in this matter.

The complainant makes essentially two other arguments in favor of the state's exercise of jurisdiction in this case. First, the complainant maintains that the respondent's own materials and booklets state it is not a church. In support of this contention, the complainant makes reference to various documents which are not before the commission, then uses those references as a springboard for a liturgical and doctrinal debate as to why the Salvation Army is not a church. The commission, however, is unaware of any materials in which the respondent directly denies its status as a religious association and, indeed, the respondent's contention throughout these proceedings has been that it is a religious association. While the complainant's attempts to interpret ambiguous statements contained in the respondent's literature to mean that it is not a church are interesting, they are not legally persuasive, particularly where they would require the commission to embark on precisely the sort of theological debate that the Jocz decision and those cited therein are meant to foreclose.

The complainant's second argument, which is equally difficult to comprehend, is that the respondent is not the equivalent of a church because its ministers and pastors are volunteers who did not receive any wages. The complainant contends that the respondent mixes church and state in order to obtain free labor and that, without a legal contract for wages, there is no separation of church and state. Again, this argument is without merit. The complainant has failed to cite to any legal authority for the proposition that, in order to be considered a church, ministers and pastors must be salaried, and the commission is unaware of any such authority. Indeed, in McClure, in which the district court found the Salvation Army to be a church and its Officers to be ministers, the court specifically noted that the work of Salvation Army Officers is voluntary for religious reasons. McClure, 323 F. Supp. at 1106. While there might be room for a theological debate about the payment of wages to ministers, that, again, is the precise territory into which the state is not permitted to tread.

Finally, the commission considers it noteworthy that, in a document which the complainant entitled his "Answer" to the Initial Determination, filed on June 1, 1998, he repeatedly contended that he was hired under "Church standards" of the Salvation Army, known as part of the "Universal Christian Church" and that his claim involved the position of "Officer/Minister." As the respondent points out in its brief, it was only after it filed its motion to dismiss for lack of jurisdiction that the complainant began to argue the Salvation Army was not a church and its officers not ministers.

Because, for the reasons set forth above, the commission agrees with the administrative law judge that the Division lacks jurisdiction to decide this case, the dismissal of the complaint is affirmed.

cc: W.A. Kirkpatrick

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(1)( Back ) The complainant has not objected to administrative law judge's Olstad's reliance on the record that was created before administrative law judge Brown, and, for purposes of this decision, the commission has treated the facts adduced at the original hearing as stipulated facts.

(2)( Back ) "The [Salvation Army] is a corporation organized in 1927 under the laws of the State of Georgia and formed for the purpose or the location of a church in the County of Fulton, State of Georgia, and for the purpose of promoting the cause of Christian religion, charity and education in other localities throughout the State of Georgia and elsewhere." Id. at 1101.