Extending the Ministerial Exception to New York Labor Law § 201‑d: Commentary on Sander v. Westchester Reform Temple

I. Introduction

In Sander v. Westchester Reform Temple, 2025 NY Slip Op 06958 (Dec. 16, 2025), the New York Court of Appeals confronted a collision between two powerful legal currents:

• New York’s statutory protection of employees’ lawful off‑duty conduct under Labor Law § 201‑d, and
• The First Amendment–based “ministerial exception,” which shields religious organizations’ decisions about their ministers from the reach of secular employment laws.

Plaintiff Jessie Sander, hired as a “Full Time Jewish Educator” by Westchester Reform Temple, alleged that she was fired because she co‑authored a blog post criticizing Israel’s military actions in Gaza and “reject[ing] the notion that Zionism is a value of Judaism.” She claimed this termination violated Labor Law § 201‑d (2)(c), which prohibits adverse employment action based on employees’ lawful “recreational activities” off duty, off premises, and without employer resources.

The Court of Appeals affirmed dismissal of her complaint, but the judges divided sharply over why:

• The majority (Halligan, J.) held that the claim is barred by the ministerial exception. It declined to decide whether blogging (or the content of a blog) is a protected “recreational activity” under § 201‑d.
• Judge Rivera, concurring in the result, would have avoided the constitutional ministerial exception altogether and instead held that, even assuming the blog is a recreational activity, it falls within § 201‑d’s “material conflict of interest” exception and is therefore unprotected.

This decision is significant for several reasons:

• It is the first time the Court of Appeals squarely applies the ministerial exception to bar a state-law off-duty conduct claim under Labor Law § 201‑d.
• It implicitly approves resolving ministerial status on a motion to dismiss based solely on documentary evidence, where an offer letter shows religious teaching duties.
• It leaves unresolved—and thus open for future litigation—whether online expressive activity such as blogging falls within § 201‑d’s protection for “recreational activities.”
• The concurrence offers a detailed, competing framework for reading § 201‑d’s conflict‑of‑interest exception broadly enough to cover reputational and philosophical conflicts with an employer’s mission.

II. Factual and Procedural Background

A. The Employment Relationship and Blog Post

In May 2021, Westchester Reform Temple offered Sander a position as a “Full Time Jewish Educator.” The offer letter described a range of responsibilities:

• Teaching in “Jewish Learning Lab classrooms for 15 hours a week,” including:
  • Chevruta (one‑on‑one tutoring for learners),
  • “Pre-bimah tutoring,” and
  • “Parsha of the week” (study of the weekly Torah portion).
• Guiding programs such as “Shabbat, Havdalah, and other teen led events and initiatives.”
• Planning, supporting, and attending “Confirmation” experiences.
• Supporting a “Rabbi’s Table initiative.”
• Engagement in “family and parent education, social justice programming, field trips and other off-site programs, communications, administrative support, and writing articles for Synagogue publications.”

The letter also tied Sander’s role to the Temple’s religious “mission,” including:

• “support[ing] the development of a strong Jewish identity,” and
• “bringing Torah to life and inspiring Jewish dreams.”

Soon after Sander began work, a Temple rabbi met with her about a blog post she had co‑authored shortly before:

• The post expressed that the authors felt compelled to “speak out against israel’s most recent attack on Gaza.”
• It “reject[ed] the notion that Zionism is a value of Judaism.”

According to the complaint, Sander and the rabbi discussed the meaning of Zionism; she assured him that she respected the Temple’s position and would not share her own views at work. She alleges that the rabbi expressed full confidence in her teaching abilities—yet she was fired less than a week later.

B. The Lawsuit and Lower Court Decisions

Sander sued the Temple and its leadership, alleging:

• She engaged in a lawful “recreational activity” (blogging) outside work hours, off premises, and without employer equipment.
• She was terminated “because of” that protected recreational activity, in violation of Labor Law § 201‑d (2)(c).

The Temple moved to dismiss on two principal grounds:

1. Failure to state a claim (CPLR 3211[a][7])
   • Blogging (or the content of the blog) is not a “recreational activity” under § 201‑d.
   • Even if it were, her conduct created a “material conflict of interest” with the Temple’s business interest, and thus fell within § 201‑d (3)(a)’s exception.
2. Ministerial exception (CPLR 3211[a][1])
   • As a Jewish educator performing religious functions, Sander was a “minister” for First Amendment purposes.
   • The ministerial exception categorically bars application of § 201‑d to the Temple’s decision about her employment.

Supreme Court (Westchester County) dismissed the complaint solely on § 201‑d grounds:

• It held that the complaint alleged she was fired for the content of her blog post, not for “the act of blogging.”
• On that understanding, the court concluded no protected “recreational activity” was implicated.
• It did not address the ministerial exception or the material conflict-of-interest argument.

The Appellate Division, Second Department, affirmed on the same basis and likewise declined to reach the alternative defenses. The Court of Appeals granted leave.

III. Summary of the Court of Appeals’ Decision

A. Majority Opinion (Halligan, J.)

The majority identified a novel statutory question: Does Labor Law § 201‑d’s protection for “recreational activities” extend to public expression of one’s views, such as a blog post, especially in the modern online environment that legislators did not contemplate in 1992?

However, the Court deliberately reserved that question for another day. It held instead:

• Regardless of § 201‑d’s scope, Sander’s claim is barred by the ministerial exception.
• The ministerial exception “precludes application of [employment discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers” (quoting Hosanna‑Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 188 (2012)).
• The Temple’s offer letter, submitted as documentary evidence, conclusively establishes that Sander’s “core responsibilities” were religious in nature.
• Therefore, under CPLR 3211(a)(1), her complaint must be dismissed because the ministerial exception is a complete defense as a matter of law.

Relying on the U.S. Supreme Court’s ministerial exception cases:

• Hosanna‑Tabor (Lutheran teacher with ministerial title and religious duties), and
• Our Lady of Guadalupe School v. Morrissey‑Berru, 591 U.S. 732 (2020) (Catholic teachers with significant religious teaching roles but no ministerial title),

the majority reasoned that Sander’s duties—teaching Torah portions, one‑on‑one religious study, and organizing religious rituals like Shabbat and Havdalah—fit squarely within the category of “educating young people in their faith.”

While acknowledging that application of the ministerial exception is normally “fact-intensive” and often not suitable for a motion to dismiss, the majority emphasized that:

• Sander worked in the position for less than three weeks, limiting the prospect that discovery would meaningfully illuminate her duties beyond what the offer letter shows.
• Her contrary allegation that her responsibilities were “secular rather than religious” was conclusory and “plainly untenable” in light of the job description.

The Court thus affirmed the Appellate Division’s order, but on a different and broader ground:

• Not because § 201‑d does not protect blogging, but because the ministerial exception prevents § 201‑d from being applied to a religious organization’s employment decisions regarding its ministers.

B. Judge Rivera’s Concurrence

Judge Rivera concurred in the result (affirmance) but sharply disagreed with the majority’s route. Her key conclusions:

1. Blogging can be a recreational activity under § 201‑d, depending on purpose and content.
   • Relying on dictionary definitions, she describes blogging as a website or online diary containing personal reflections, and the act of “writing a blog.”
   • Uncompensated blogging about, for example, a vacation or local restaurants can be a leisure “hobby,” which § 201‑d expressly includes as a recreational activity.
   • However, some blogs—such as those aimed at mobilizing political action—may not be “recreational” because they are driven by civic duty rather than relaxation or entertainment.
   • She ultimately “assum[es], without deciding” that Sander’s blogging about Israel and Zionism is a recreational activity.
2. The “material conflict of interest” exception defeats Sander’s claim on the pleadings.
   • Even if blogging here is recreational, § 201‑d (3)(a) withholds protection from any activity that “creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.”
   • Based on the complaint’s own allegations and the statutory history, she reads “business interest” broadly to include an employer’s mission, philosophy, and reputation in the community.
   • Sander’s publicly posted anti‑Zionist views, by her own pleading, conflicted with the Temple’s self‑described “Zionist” stance and could generate reputational and relational harm with congregants, especially parents of students.
   • Thus, her posting created a “material conflict of interest” within the meaning of § 201‑d (3)(a), and the complaint fails to state a claim under CPLR 3211(a)(7).
3. Courts should avoid deciding the ministerial exception issue on this record.
   • Invoking the doctrine of constitutional avoidance, she argues that when a case can be resolved on non‑constitutional grounds (here, statutory interpretation), courts should not reach constitutional questions.
   • She emphasizes that the ministerial exception’s contours are evolving and unsettled in federal appellate jurisprudence, with inconsistent and sometimes expansive applications.
   • She notes that key U.S. Supreme Court precedents (Hosanna‑Tabor and Our Lady of Guadalupe) were decided on summary judgment, after factual development, underscoring the “fact-intensive” nature of the inquiry.
   • In her view, the offer letter does not “utterly refute” Sander’s allegation that her duties were secular or different in practice; discovery would be needed, making CPLR 3211(a)(1) dismissal improper.

Judge Troutman also concurred in the result, for the reasons given by the Appellate Division, essentially aligning with the lower courts’ narrower reading of § 201‑d and without endorsing the majority’s ministerial exception analysis.

IV. Detailed Analysis

A. Labor Law § 201‑d: Purpose and Structure

Labor Law § 201‑d, enacted in 1992 after two earlier vetoed attempts, reflects a legislative effort to:

• Protect employees’ autonomy in their off‑duty, lawful activities, and
• Preserve employers’ legitimate interests in protecting their businesses from certain off‑duty conduct that could harm them.

Subdivision (2) makes it unlawful for an employer to refuse to hire, discharge, or otherwise discriminate against an individual “because of”:

• “Political activities outside of working hours,”
• “Legal use of consumable products,”
• “Legal recreational activities,” and
• Union membership and activities.

“Recreational activities” are defined in § 201‑d (1)(b) as:

“any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.”

However, § 201‑d also contains key exceptions. Most relevant here, § 201‑d (3)(a) states that the protections:

“shall not be deemed to protect activity which creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.”

The statutory history shows:

• Earlier vetoed bills had either no conflict-of-interest provision or a narrower one tied to written employer policies.
• In response to gubernatorial concerns, the enacted text is broader, covering conflicts related to “business interest” and not just to trade secrets or specific written policies.
• The Governor’s approval emphasized the intent to balance “the right to privacy in relation to the non-working hours activities of individuals” against “the right of employers to regulate behavior which has an impact on the employee’s performance or on the employer’s business.”

Thus, § 201‑d confers significant off‑duty protections but explicitly allows employers to act when employees’ lawful off‑duty activities materially undermine the employer’s legitimate business or mission.

B. Precedents and the Ministerial Exception

1. U.S. Supreme Court Foundations

The ministerial exception is a judge‑made doctrine derived from the Religion Clauses of the First Amendment. It rests on two overlapping constitutional premises:

• Free Exercise Clause: Religious groups have the right to decide matters of faith and doctrine, including who will “personify their beliefs” and “shape their own faith and mission” through leading roles.
• Establishment Clause: Civil courts must avoid entanglement in internal church governance, particularly decisions about religious leadership and teaching.

In Hosanna‑Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), the U.S. Supreme Court:

• Formally recognized the ministerial exception and applied it to bar a federal employment discrimination claim brought by a “called” teacher at a Lutheran school.
• Considered multiple factors: formal title (“Minister of Religion, Commissioned”), the substance and training associated with that title, the employee’s own understanding and use of the title, and the “important religious functions” she performed, such as teaching religion, leading prayer, and participating in worship.
• Stressed that there is no “rigid formula” for who counts as a minister; courts must examine all the circumstances.

In Our Lady of Guadalupe School v. Morrissey‑Berru, 591 U.S. 732 (2020), the Court extended the exception to two lay Catholic school teachers who:

• Lacked formal ministerial titles and extensive religious training, but
• Had “core responsibilities as teachers of religion,” including leading prayer, attending Mass with students, and preparing them for sacraments and other religious activities.

The Court focused on the religious function of the employees more than their titles, reinforcing that the functional role of “educating young people in their faith” lies at the heart of the ministerial exception.

2. Application in Sander

The majority imports this federal ministerial exception doctrine into New York law and applies it to a state statutory claim (Labor Law § 201‑d). That move itself is doctrinally significant:

• It confirms that the ministerial exception is not limited to federal statutes like Title VII but constrains the application of state employment statutes as well.
• New York courts must therefore treat the ministerial exception as a constitutional limit on state employment regulation, including off‑duty conduct protections.

Under Hosanna‑Tabor and Our Lady of Guadalupe, the majority examines:

• The position’s designation (“Full Time Jewish Educator”), and
• “The important religious functions” described in the offer letter:
  • Teaching Torah portions and religious texts (“Parsha of the week”),
  • Conducting one‑on‑one religious study (chevruta),
  • Preparing students for religious rituals (“Pre-bimah tutoring,” “Confirmation experiences”),
  • Leading participation in religious events (Shabbat, Havdalah, teen‑led religious initiatives), and
  • Furthering the Temple’s mission of developing “a strong Jewish identity” and “bringing Torah to life.”

These functions mirror those the U.S. Supreme Court considered decisive in finding ministerial status for elementary school teachers in Our Lady of Guadalupe. On that basis, the majority concludes that Sander is, for constitutional purposes, a minister.

Once an employee is deemed a minister, the doctrine is categorical: civil courts may not apply employment discrimination statutes to challenge the religious institution’s decisions about hiring, firing, or discipline of that minister. The majority therefore does not reach:

• Whether blogging is a recreational activity, or
• Whether a conflict of interest exists under § 201‑d (3)(a).

3. Procedural Posture: Ministerial Exception via CPLR 3211(a)(1)

A notable aspect of the majority’s decision is how early it applies the ministerial exception:

• The Temple moved to dismiss under CPLR 3211(a)(1), arguing that “documentary evidence” (the offer letter) conclusively established the ministerial exception.
• Under New York law, 3211(a)(1) dismissal is permitted only where the documents “utterly refute” plaintiff’s factual allegations and “conclusively establish a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 (2002)).
• The majority finds that standard satisfied: Sander’s bare allegation that her duties were “secular” is deemed conclusory and contradicted by the detailed religious functions set out in the offer letter.

This is doctrinally important because:

• Both Hosanna‑Tabor and Our Lady of Guadalupe were decided on summary judgment—after discovery and a fully developed factual record.
• Here, the Court holds that where the job description itself unambiguously delineates religious functions, courts can resolve the ministerial exception at the pleading stage, without discovery.
• Religious employers will likely respond by drafting more explicitly religious job descriptions to bolster such early dispositive motions.

Judge Rivera’s concurrence resists this approach, emphasizing both the fact‑intensive nature of ministerial status and the severe consequences of prematurely dismissing claims without discovery, especially under an evolving constitutional doctrine.

C. Judge Rivera’s Statutory Analysis: Blogging and the Conflict-of-Interest Exception

1. Is Blogging a “Recreational Activity”? The Role of ejusdem generis

Judge Rivera carefully examines whether blogging fits within § 201‑d’s definition of “recreational activities” using two interpretive tools:

• Ordinary Meaning and Dictionaries
  • She notes that a “blog” is commonly understood as an online journal or website of personal reflections, often organized chronologically.
  • “Blogging” is the act of writing or maintaining such a blog.
  • Many blogs are plainly leisure pursuits—like musings about travel or hobbies—thus mapping neatly onto the statutory category of “hobbies.”
• Ejusdem generis (of the same kind)
  • This canon teaches that when a statute lists specific items followed by a general term, the general term is construed to include only items “of like kind” to the specific ones.
  • Here, “recreational activities” explicitly “include but are not limited to” sports, games, hobbies, exercise, reading, and watching television or movies.
  • Blogging that functions as a hobby—uncompensated, leisure‑time expression—is “of like kind” to reading, watching, or hobby‑type activities and thus can fall within the general category.

At the same time, Rivera draws an important line: not all blogging is necessarily recreational. For example:

• A blog devoted to political advocacy, intended to mobilize readers or organize campaigns, may be driven by civic duty rather than relaxation or entertainment.
• Such blogging could be more aptly characterized as “political activity,” which § 201‑d (2)(a) addresses separately, rather than “recreational activity.”

She ultimately finds it unnecessary to definitively classify Sander’s blog, choosing instead to assume without deciding that it is a recreational activity and move directly to the conflict‑of‑interest analysis.

2. The “Material Conflict of Interest” Exception

Judge Rivera’s concurrence develops the most detailed appellate guidance to date on § 201‑d (3)(a)’s “material conflict of interest” exception.

Drawing on legislative history, she emphasizes that:

• The Governor twice vetoed earlier bills partly because they did not sufficiently protect employers when off‑duty conduct undermined the employer’s “mission” or ability to operate effectively.
• In response, the Legislature expanded the carve‑out to cover activity that creates a “material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.”
• The key addition—“business interest”—signals an intent to protect not only economic assets but also mission‑related and reputational concerns.

She then turns to case law interpreting § 201‑d (3)(a), highlighting that:

• A conflict of interest can exist even without any personal financial gain to the employee.
• In Thomas v. Smith (S.D.N.Y. 2008), a public employee working for an agency that served both victims and perpetrators of sexual assault advocated castration of sex offenders at a community forum.
  • The court held this created a material conflict with the employer’s philosophy and exposed it to negative publicity, defeating her § 201‑d claim.
• In Berg v. German National Tourist Office, 248 AD2d 297 (1st Dept 1998), the employee translated Holocaust‑revisionist materials while working for a German tourism office.
  • The Appellate Division concluded that this off‑duty activity materially conflicted with the employer’s business interest, clearly given the historical context and likely public backlash.

From these authorities, Judge Rivera extracts several principles:

• “Material conflict of interest” includes serious reputational or philosophical conflicts, not just economic competition or diversion of business.
• The relevant inquiry is whether the off‑duty activity undermines or clashes with the employer’s mission, values, methods, or public image in a way that could affect its operations.

Applying that framework to Sander’s allegations, she notes:

• The complaint itself acknowledges that the Temple is a “Zionist institution” and that Sander recognized this.
• The blog post, as pleaded, “reject[ed] the notion that Zionism is a value of Judaism,” leaving “no room for discussion,” and thus ran directly counter to what the Temple presents as part of its mission and identity.
• The Temple describes itself publicly as an inclusive, pluralistic community that nonetheless explicitly “support[s] the Jewish people and the State of Israel” and “stand[s] with Israel.”
• Congregants may regard Zionism as an integral part of their religious or ethnic identity; having a Jewish educator of children publicly rejecting Zionism could therefore provoke a backlash and jeopardize membership, donations, or participation.

She concludes that, as a matter of law on the face of the pleadings:

• Sander’s publicly expressed anti‑Zionist views materially conflicted with the Temple’s business interest in maintaining its identity and reputation as a Zionist Reform synagogue.
• Accordingly, even if her blogging is a protected recreational activity in the abstract, this particular blog post falls squarely within § 201‑d (3)(a)’s exception.
• The complaint thus fails to state a viable claim under § 201‑d (2)(c) and should be dismissed under CPLR 3211(a)(7) without reaching the constitutional ministerial exception issue.

D. Constitutional Avoidance and Concerns About Expanding the Ministerial Exception

Judge Rivera also grounds her disagreement with the majority in broader jurisprudential concerns:

• New York courts, following long‑standing practice, seek to avoid constitutional questions when a case can be resolved on a non‑constitutional basis (Peters v. New York City Hous. Auth., 307 NY 519 (1954); Matter of Clara C. v. William L., 96 NY2d 244 (2001)).
• She notes that the ministerial exception has been subject to “doctrinal evolution” and inconsistent application in the federal courts, citing:
  • McMahon v. World Vision Inc. (9th Cir. 2025), expanding the exception to customer service representatives performing key religious functions;
  • Billard v. Charlotte Catholic High School (4th Cir. 2024), applying the exception to a high school English and drama teacher who only occasionally substituted as a religion teacher;
  • Palmer v. Liberty University, Inc. (4th Cir. 2023), where the court avoided deciding ministerial status and featured sharply divergent concurrences on the doctrine’s scope; and
  • DeWeese‑Boyd v. Gordon College, 487 Mass 31 (2021), in which the Massachusetts Supreme Judicial Court declined to apply the exception to a professor of social work whose teaching integrated Christian perspectives, warning against a “significant expansion” of the doctrine.
• A Harvard Law Review note she cites characterizes the ministerial exception’s criteria as “nebulous” and conducive to confusion and inconsistent application.

In that light, she views it as particularly problematic to:

• Resolve ministerial status on a cold record at the pleading stage;
• Use a single offer letter to “utterly refute” a factual allegation about the nature of an employee’s duties; and
• Extend the ministerial exception into new areas without the discipline of a fully developed factual context.

These concerns do not carry the day in Sander, because the majority opinion controls. But they signal a cautionary note for future New York cases: some judges on the Court of Appeals may be reluctant to push the ministerial exception’s boundaries without clear necessity and robust factual records.

E. Interaction with the 2023 Amendment to § 201‑d

The opinion notes, in a footnote, a 2023 amendment to Labor Law § 201‑d (9), effective after Sander’s employment, which provides that § 201‑d does not apply to:

“any religious corporation, entity, association, educational institution or society that is exempt from the requirements of Title VII of the Civil Rights Act of 1964 . . . with respect to speech on religious matters to employees who perform work connected with the activities undertaken by such religious corporation, entity, association, educational institution or society.”

The majority states that this amendment is “not at issue here” because it postdates the underlying facts. Nonetheless, Sander interacts with that amendment in at least two ways:

• The new subdivision codifies, at a statutory level, a protection for religious entities concerning “speech on religious matters” addressed to employees engaged in religious work.
• The majority’s ministerial exception holding operates at a constitutional level and is broader: it bars application of § 201‑d altogether to a religious institution’s employment decisions about its ministers, regardless of whether the dispute centers on “speech on religious matters.”

As a result, for employees performing ministerial functions:

• The ministerial exception may provide more sweeping protection to religious employers than the statutory 2023 carve‑out alone.
• In many such cases, courts will likely not need to reach § 201‑d (9); they will resolve the case under the constitutional ministerial exception as in Sander.

F. Tension Between Off‑Duty Protections and Employer Mission

At its core, Sander illustrates a sharp tension:

• Employees’ expectations that lawful, off‑duty expressive activity—especially political or ideological speech online—will not cost them their jobs under statutes like § 201‑d.
• Employers’ interests, especially religious or mission‑driven entities, in ensuring that key employees’ public statements do not undermine or contradict the institution’s mission, identity, or relationship with its constituencies.

In secular contexts, the conflict-of-interest exception (§ 201‑d (3)(a)), as interpreted by cases like Thomas and Berg and elaborated by Judge Rivera, allows employers to terminate employees whose off‑duty expression clashes so severely with the employer’s mission or public identity that it risks serious reputational or operational harm, even if the employee gains no personal financial benefit.

In religious contexts, Sander adds an additional, more powerful layer: the ministerial exception. For employees performing religious functions:

• The constitutional doctrine may foreclose not just § 201‑d claims but virtually all statutory employment‑law claims, leaving internal religious governance as the sole forum for resolving such disputes.
• This is so even if the dispute centers on political or ideological speech (here, views on Zionism and Israel), not explicitly doctrinal religious disagreement in a narrow sense.

V. Clarifying Complex Legal Concepts

1. The Ministerial Exception

The ministerial exception:

• Is a constitutional doctrine derived from the First Amendment’s Religion Clauses.
• Prevents courts from applying employment‑discrimination and similar statutes to disputes between religious institutions and their “ministers.”
• Encompasses not only ordained clergy but also employees who:
  • Perform key religious teaching, worship, or leadership functions, or
  • Play central roles in conveying the faith to others, particularly children.

Determining who is a “minister” is fact‑specific. Courts consider:

• Job titles and formal religious designation (if any),
• Religious training and commissioning,
• How the employee and the institution view and use the role, and
• The religious functions actually performed.

Once the exception applies, courts will not adjudicate claims like wrongful termination, discrimination, or—in Sander—retaliation for off‑duty conduct under § 201‑d.

2. Constitutional Avoidance

The doctrine of constitutional avoidance is a principle of judicial restraint:

• If a case can be resolved on non‑constitutional grounds (e.g., interpreting a statute), courts should not reach constitutional questions.
• This principle:
  • Preserves judicial legitimacy by minimizing unnecessary constitutional rulings, and
  • Gives legislatures and lower courts more room to adjust statutory frameworks without being overridden by constitutional mandates.

Judge Rivera invokes this doctrine to argue that once the § 201‑d conflict-of-interest exception clearly disposes of Sander’s claim, the Court should not have reached the ministerial exception question.

3. CPLR 3211(a)(1) vs. 3211(a)(7)

• CPLR 3211(a)(7) – Failure to state a cause of action
  • The court takes the complaint’s factual allegations as true.
  • The question is whether, assuming those facts, the law provides a remedy.
  • The court does not weigh evidence; it assesses only the adequacy of the pleadings.
• CPLR 3211(a)(1) – Dismissal based on documentary evidence
  • Permits dismissal when documents (e.g., contracts, official records) “utterly refute” the plaintiff’s factual statements.
  • Those documents must conclusively establish a defense as a matter of law.
  • It is a demanding standard; mere contradiction or dispute is not enough.

In Sander:

• The majority uses 3211(a)(1), relying on the offer letter to show ministerial status and bar the claim constitutionally.
• Judge Rivera prefers 3211(a)(7), resolving the case under § 201‑d’s conflict-of-interest exception while accepting the complaint’s factual allegations.

4. “Material Conflict of Interest” Under § 201‑d (3)(a)

Key features of this exception:

• It denies § 201‑d protection where an employee’s off‑duty lawful conduct “creates a material conflict of interest related to the employer’s”:
  • trade secrets,
  • proprietary information, or
  • other proprietary or business interest.
• “Material” implies a significant, non‑trivial conflict—one capable of meaningfully harming the employer’s interests.
• “Business interest” is broad enough to cover mission, philosophy, public image, and relationships with clients, congregants, or customers, not only financial or competitive interests.
• Cases like Thomas and Berg illustrate that:
  • Publicly expressed views that fundamentally clash with an employer’s core mission can create such conflicts,
  • Even where the employee does not personally profit.

5. Zionism and Anti‑Zionism (as Used in the Case)

The opinion uses “Zionist institution” and “anti‑Zionist” as descriptive terms, not as legal categories:

• The Temple is described (in the complaint and in its own materials) as supportive of the State of Israel and Zionism as part of its mission and identity.
• Sander’s blog post is described as “reject[ing] the notion that Zionism is a value of Judaism” and as anti‑Zionist.

In legal terms, this ideological divergence matters because:

• For Judge Rivera, it underscores the “material conflict of interest” between Sander’s public views and the Temple’s mission as the employer.
• For the majority, it illustrates why the Temple, as a religious institution, claims the right to select ministers who align with its vision of Judaism and Israel, thus implicating the ministerial exception.

VI. Implications and Future Impact

A. For Religious Employers and Educators

Sander strengthens religious institutions’ legal position in New York when dealing with employees who perform religious or faith‑formation functions:

• They can more confidently invoke the ministerial exception not only against classic discrimination claims but also against state‑law claims concerning off‑duty conduct (e.g., § 201‑d, whistleblower statutes, or other employment protections), provided the employee is a ministerial actor.
• They may now seek to resolve such disputes at the pleading stage by submitting job descriptions or offer letters that clearly outline religious responsibilities.
• Employees hired as religious educators or leaders should be aware that courts may treat them as ministers in this constitutional sense, significantly limiting their recourse to civil courts for employment disputes.

B. For the Interpretation of Labor Law § 201‑d

The decision leaves several important questions open:

• The Court of Appeals still has not definitively answered whether:
  • “Blogging” (as an activity) is a recreational activity, or
  • Off‑duty political or ideological expression generated during recreational activities is protected by § 201‑d.
• However, Judge Rivera’s concurrence provides persuasive guidance that:
  • Uncompensated blogging undertaken for leisure can fall within the statute’s broad “hobbies” category.
  • Courts should examine the purpose and context of the blog (recreation vs. activism) in making that determination.
• Her detailed discussion of the conflict-of-interest exception is likely to influence lower courts, even though it is not strictly binding precedent:
  • It encourages a relatively broad view of “business interest,” encompassing mission and reputation.
  • It establishes that reputational conflicts and philosophical contradictions with an employer’s mission can qualify as “material conflicts,” even absent employee self‑dealing.

C. For Online Political and Ideological Expression by Employees

The case underscores a difficult reality for employees in public‑facing or mission‑critical roles:

• Even if a blog or social media post is written off duty, off premises, without employer equipment, and without pay, it may still:
  • Fall outside § 201‑d’s protection if a court deems it not “recreational,” or
  • Be excluded by the “material conflict of interest” exception if it sharply contradicts the employer’s mission or risks reputational damage.
• In religious settings, if the employee has ministerial status, the ministerial exception may prevent any judicial review of the employer’s decision, irrespective of whether § 201‑d might otherwise apply.

D. For the Ministerial Exception’s Development in New York

Substantively, Sander confirms that:

• New York’s high court will align with federal constitutional doctrine in treating religious educators whose duties center on faith formation as ministers.
• The ministerial exception extends to bar the application of New York’s off‑duty conduct statute when invoked by religious employers against ministerial employees.

Procedurally, the decision signals that:

• Courts may, in appropriate cases, determine ministerial status on a motion to dismiss, based on documentary evidence such as offer letters or job descriptions, where those documents clearly define religious functions.
• However, the split between the majority and Judge Rivera on this point suggests that future panels may differ on when the documentary record is “utterly” conclusive.

Going forward, litigants can expect:

• Religious organizations to craft detailed job descriptions emphasizing religious functions for positions they wish to protect under the ministerial exception.
• Employees and their counsel to focus heavily on:
  • The actual day‑to‑day duties performed,
  • Whether the position truly involves religious teaching or leadership, and
  • Whether factual disputes about those duties preclude early dismissal.

VII. Conclusion

Sander v. Westchester Reform Temple is a landmark New York decision at the intersection of religious liberty, statutory protection of off‑duty conduct, and the realities of online expression. The Court of Appeals:

• Holds that the First Amendment’s ministerial exception bars application of Labor Law § 201‑d to a claim brought by a Jewish educator whose core duties are religious in nature, and
• Allows that conclusion to be reached at the pleading stage based on the religiously framed job description in an offer letter.

At the same time, Judge Rivera’s concurrence:

• Offers the most developed appellate analysis to date of when blogging can constitute a “recreational activity” under § 201‑d, and
• Clarifies that § 201‑d’s “material conflict of interest” exception extends to significant reputational and philosophical conflicts between an employee’s off‑duty expression and an employer’s mission.

The decision leaves open crucial questions about the precise scope of § 201‑d’s protection for expressive online activity, but it clearly signals:

• For religious institutions, especially schools and synagogues, the ministerial exception provides a powerful shield against a wide array of employment‑law claims by religious educators.
• For employees in such roles, off‑duty political or ideological expression, particularly on sensitive subjects like Israel and Zionism, may receive little or no protection when it conflicts with the employer’s religious mission.

As online self‑expression continues to blur boundaries between private and professional life, and as religious and ideological identities remain contested in public discourse, Sander will stand as a pivotal guidepost in New York for reconciling statutory employee protections with constitutional religious autonomy.