The Ecclesiastical Abstention Doctrine and the Ministerial Exception limit secular court intrusion into church employment decisions regarding ministers and other employees.  While it is generally the limitations on employment law protection of “other employees” about which the courts struggle, it is possible for these doctrines to limit or preclude other claims.  For example, can a pastor fired by a church or denomination sue, rather than the church or denomination, a member of their church regarding their role in the loss of employment?

In Father Jim Tracy v O’Bell, et al, Slip Op. (Pa. Supp. 2021) an intermediate appellate court affirmed summary judgment in favor of the lay members sued by the former pastor.  The former pastor alleged that alleged tortious interference with his employment contract was the goal of the defamation by the lay member defendants.  The Plaintiff alleged the defendants defamed him with the intent of causing the church to terminate his employment.  Plaintiff claimed he found a large amount of cash in a file cabinet and the lay members claimed the Plaintiff was not financially responsible with church funds.  The church terminated the Plaintiff.  But, the Plaintiff did not sue the church, but rather sued the lay members the Plaintiff claimed defamed him in their alleged plot to secure his termination.  The trial court was affirmed because the alleged defamatory claims of the lay members, and the allegedly connected firing, were intertwined with the ecclesiastical decision to terminate a clergyman.  The termination decision was made by the church and court inquiry into that decision to determine if it was, indeed, based on the defamation would entangle the court in ecclesiastical governance.

While in the reported case the Ecclesiastical Abstention Doctrine, in order to keep the court out of ecclesiastical church governance, had the effect of immunizing lay members the assumption should not be made that it will do so frequently or reliably.  Lay members, even in congregational rather than hierarchical churches, may not be able to defame each other with impunity even if as to the employment of a pastor they might.  Likewise, churches and denominations that do not manage such internal disputes, even if litigation would be ineffectual, may find that there are other consequences and ripple effects, such as to offering plates.


The ongoing argument that church school teachers, staff, and administrators are not “ministers” and that employment decisions by churches regarding them are not shielded by the Ecclesiastical Abstention Doctrine or its subsidiary the Ministerial Exception is not merely a matter of opinion.  It is, or should be, a matter of factual inquiry based on the record the parties have made.  The church and school governing documents, the employment contracts, if any, and the employment handbooks generally will decide the issue because those documents generally existed prior to the dispute, were ratified by the employee upon employment, or ratified because the employee remained employed after amended documents were adopted.

In Zaleuke v Archdiocese of St. Louis, Memorandum and Order (ED Mo. ED, 2021) the federal trial court granted summary judgment to the church.  The Plaintiff resigned from the position of elementary church school principal when Plaintiff learned her contract would not be renewed for a third year.  The Plaintiff sued alleging sex discrimination.  The trial court’s opinion recited the church governing documents, employment contract, and other documents in detail.  For example, the employment application required Plaintiff to answer certain questions described as:  “(1) “describe your belief in God and your relationship with Jesus Christ”; (2) “describe your relationship to and involvement in the Catholic Church in general and your parish in particular”; (3) “define the unique mission of Catholic schools”; (4) “describe … the elements of a school’s Catholic identity”; (5) “describe your background in religious education” and “[h]ow this contribute[s] to your work as a Principal/administrator”; and (6) “describe the role for [a r]eligious leader of the school community.””  The employment contract expressly stated the position was intended to further the mission of the church.  A “mission statement” to which the employee was required to adhere was much like a secular morals clause.  The position also required meetings with religious personnel of the church and ongoing religious education.  The trial court held that the record demonstrated the Plaintiff’s position was required to perform “important religious functions,” “religious instruction,” church mission participation, and academic requirements directly related to “elucidating or teaching the tenets of the faith.”

Churches that run schools should grab this court opinion and make sure their own documents serve as well in documenting the true nature of the position.  The goal is not merely the elimination of secular court employment case intrusion but obtaining the clear commitment of church school employees at every level.


Because of the Pandemic of 2020-2021, courts across the United States have been closed, locked down, delaying hearings and trials, and generally more slowly reaching cases and resolving or ending disputes of all types. Even as the Pandemic has morphed into an endemic, if it is, to catch up the courts had to focus on criminal case dockets to the exclusion of all else. Thus, we have reached the 300th report on this website much later than might have been expected. That does not necessarily mean that there are fewer lawsuits involving churches. Indeed, during the Pandemic, governments on both oceanic coasts of the United States leaped to close, curtail or harass churches such that they, too, were closed or locked down. The reported case in this 300th report is a case in point.

Some denominations and churches import ministry talent from other countries to shore up their own or to train and return, to minister to immigrants through someone with their own heritage, and to diversify.  In Iglesia Pentecostal Casa De Dios Para Las Naciones, Inc. v Duke, 718 Fed. Appx. 646 (10th Cir. 2017), the federal court of appeals held that “love offerings” that were not documented by the church could not be used to comply with salary disclosure requirements to obtain an R-1 5-year visa pursuant to the Immigration and Nationality Act.  The 10th Circuit did not disdain “loving offerings” as compensation, but merely held if the church had no records of them at all the church could not use them as proof of compensation to obtain an R-1.  “Love offerings” could be used as proof of compensation if churches recorded the amount collected and paid to the minister.

In National Capital Presbytery v Mayorkas, Memorandum Opinion (DDC, 2021) the federal trial court in Washington DC reversed the denial of an R-1 visa renewal because the reasons for denial given by the United States Citizenship and Immigration Services (“USCIS”) and its appeals office violated the Religious Freedom Restoration Act (“RFRA”).  USCIS held that inconsistent R-1 application evidence was submitted that first stated the manner in which the minister was compensated was by amounts dedicated to housing, insurance, or salary but later changed it, without amending the Form I-129 application, to an annual lump sum, allegedly proving there was no commitment to pay the immigrant minister.  The federal trial court noted that in the DC Circuit it has been recognized that ministerial salary is “an internal matter of the religious institution affected.”  An internal church governance matter generally cannot be heard by a court or government agency because it is prohibited by the First Amendment Ecclesiastical Abstention Doctrine.  Because the subject of the R-1 was a minister, the Ministerial Exception applied as well.  The trial court held the USCIS action “substantially burdened [the denomination’s] religious exercise.”  The case was remanded to USCIS for a decision on whether the denomination could apply for the R-1 visa on behalf of one of its constituent churches even though the constituent church would be responsible for compensation of the minister.

Proving up compensation to support R-1 visa applications must include documentation of the manner of compensation (e.g., “love offerings,” salary, housing, medical insurance, etc.) and documentation of the availability of liquidity or historical income streams (e.g., church budgets, “love offerings”) to pay the compensation.  Proof the minister is for a fact a “minister” of the denomination or church must be included and will be more difficult for non-ecumenical denomination or church structures because of the lack of an identified and credible ecclesiastical licensure authority.


Generally, the cases reported have demonstrated that churches that do not have governing documents, which are often called “bylaws” or other names, risk loss of control of their property, their assets, and their money.  Of course, churches that have governing documents, whether they call them “bylaws” or something else, must maintain the documents so that the governing documents match the governing beliefs and governance techniques used by each generation of church leadership.

In Nation Ford Baptist Church v Davis, 2021-NCCOA-528 (NC App. 2021), in an employment dispute between the “Senior Pastor” and the “Elders,” even though the Defendant church employee admitted the matter was an “employment dispute,” the trial court did not dismiss the case.  The appellate court affirmed the trial court’s refusal to dismiss and remanded for further proceedings.  The trial court declined to dismiss because the “Senior Pastor” had a written employment agreement and the church had bylaws setting forth requirements for termination.  But, the church was initially unable to prove which bylaws controlled:  the original bylaws enacted by the church or the bylaws claimed to be in effect at the time of the termination.  If the termination was not consistent with the set of bylaws to be held in effect in further proceedings, then the “Senior Pastor” might be entitled to damages.  One of the sets of bylaws required termination by a congregational vote of 75% of the “members” and it was alleged no such congregational vote was taken.

The procedure to adopt new or amended bylaws should include meeting agendas, minutes reflecting action on agenda items, and a certification by the correctly identified official secretary of the church corporation, or other officer appropriate under law, that the bylaws are in effect.  Thus certified, the certified bylaws should be in the church corporate records as recognized and recorded in the minutes of the corporation.  This process should be repeatedly annually or bi-annually.  The dispute over which documents are the governing documents may require only application of Neutral Principles of Law.  If so, the Ministerial Exception nor the Ecclesiastical Abstention Doctrine are implicated in most courts.