Bloomberg Law
Jan. 26, 2023, 8:11 PM

Liberty University’s Religious Shield Bid Facing Court Sidestep

Robert Iafolla
Robert Iafolla
Senior Legal Reporter

A federal appeals judge hinted that Liberty University may succeed in fending off a former professor’s age-bias lawsuit but lose its broader goal of expanding a First Amendment-based shield protecting religious employers from job discrimination claims.

Judge Robert King, a Clinton appointee to the US Court of Appeals for the Fourth Circuit, emphasized during oral argument Thursday a US Supreme Court doctrine that courts should try to sidestep constitutional issues—like the First Amendment’s religious safeguards—when they can decide cases on other grounds.

“Have you ever heard of Ashwander?” King asked Liberty’s lawyer, referring to a 1936 decision that first spelled out the constitutional avoidance doctrine. “You know anything about Ashwander? That’s the Supreme Court—way up there.”

Liberty University Inc. wants the court to block the age discrimination lawsuit via the ministerial exception, which immunizes religious employers from discrimination claims brought by workers who qualify as ministers.

The Supreme Court first recognized the exception, which is based on the First Amendment’s protections for religious exercise and prohibitions on government control of churches, in 2012’s Hosanna-Tabor v. EEOC and broadened it in 2020’s Our Lady of Guadalupe School v. Morrissey-Berru.

The Fourth Circuit can define the exception’s post-Our Lady boundaries by opining on what it would take to designate a studio art professor as a minister.

Liberty invoked the ministerial exception after Eva Palmer sued the Baptist university founded by televangelist Jerry Falwell for declining to renew her contract to continue teaching at age 79.

The school said Palmer wasn’t brought back because she couldn’t teach digital art or teach online, while Palmer claimed it was because of her age in violation of the Age Discrimination in Employment Act.

A federal district judge in Virginia rejected Liberty’s argument that Palmer qualified as a minister, but then threw out her lawsuit for not showing enough evidence that the school’s decision was motivated by her age.

Liberty appealed the ministerial exception decision to the Fourth Circuit, while Palmer challenged the merits ruling on the ADEA claim.

Cleaner Legal Question

At oral argument, King asked whether Liberty would be requesting an advisory opinion—which federal courts are forbidden to issue—if the Fourth Circuit affirms summary judgment against Palmer’s age bias claim.

Liberty’s attorney, King Tower of Woods Rogers PLC, agreed that the appeals court wouldn’t have to weigh in on the ministerial exception in that instance, but it still can. Moreover, it would save future courts the trouble of dealing with all the messy complications in typical employment disputes if they can dispose of cases on the cleaner question of whether the plaintiff qualifies as a minister, he said.

“When that one yes-or-no status question would resolve the issue, we think that the district courts ought to be able to reach those first,” Tower said. “And so we think that your decision giving them guidance on both of these issues would be important in that regard.”

Liberty isn’t asking for a categorical ruling saying all faculty at religious colleges are ministers, Tower said. But Palmer qualifies because of the evidence that her teaching incorporated her Christian worldview, he said.

Palmer’s lawyer said that no state supreme court or federal appeals court has applied the ministerial exception to a teacher at a religious institution who has never taught religion, theology, or church doctrine to their students.

“And this court should not be the first,” said Richard Hawkins of Hawkins Law Firm PC.

‘That’s Just Life’

Hawkins said the university’s insistence that it didn’t renew Palmer’s contract because of her lack of digital literacy was a pretext masking its illegal age discrimination.

Palmer’s best piece of evidence is that Liberty gave her a promotion and a $30,000 raise about a year before her nonrenewal, despite earlier criticism about her digital literacy, he said.

The Fourth Circuit should follow the lead from its 2021 decision Sempowich v. Tactile Systems Technology, Inc., which revived discrimination claims brought by a worker who had won employer approval and recognition prior to suffering an unwanted job transfer, Hawkins said.

But Judge Diana Gribbon Motz, a Clinton appointee who authored the Sempowich opinion, said the two cases were distinct. The plaintiff in Sempowich won much greater approval than Palmer, she said.

“I understand why you’re relying on it, but the cases are very different” Motz said. “Sometimes you can recover on a cause of action—it’s the same cause of action, but you can’t recover on it under other facts. I mean, that’s just life.”

Judge Julius Richardson, however, said Liberty faces some facts that cut against the university’s position relative to the standard at the summary judgment phase, like Palmer’s promotion and an official’s statements endorsing her.

“I get that you have explanations for those, too, but what I’m having a little bit of trouble doing is saying that that’s not a jury question,” the Trump-appointed judge said.

The case is Palmer v. Liberty Univ., Inc., 4th Cir., No. 21-02390, oral argument held 1/26/23.

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editors responsible for this story: Genevieve Douglas at; Laura D. Francis at