Church and parachurch employers, especially church schools, struggle with whether federal discrimination statutes govern their employment decisions. The First Amendment’s clear language, “shall make no law respecting an establishment of religion,” is constantly in doubt by some jurists. To them, sweeping freedom cannot possibly be the intent of the draftsman.
In Billard v Charlotte Catholic High School, Order (WD NC, 2021), the Plaintiff started out as a full-time drama teacher and performed as such for over ten years. During that time the Plaintiff’s heterosexual marriage to a woman ended in divorce. During that same time, the Plaintiff began a relationship with a male. The Plaintiff retired from full time teaching but continued as a substitute teacher for two years. The Plaintiff was not required to sign an employment contract as a substitute teacher. During that period, the Plaintiff announced on Facebook engagement to a male. Thereafter, Plaintiff was not recalled to substitute. Upon inquiring about why no further substitute teaching assignments were forthcoming, Plaintiff was told by an Assistant Principal that Plaintiff could no longer act as a substitute teacher because of the Facebook announcement of same sex engagement. The federal trial court granted summary judgment to Plaintiff on a Title VII discrimination claim. Because Plaintiff was a teacher of a secular subject, because the school did not require religious training or duties of such teachers, and because the school did not require the teachers to ascribe to any particular denomination, the federal trial court held the Ministerial Exception did not apply. The federal trial court held “as of now, religious employers have strong legal protections for hiring and firing employees who have a role in promoting their religion’s message if the employment decision is religiously motivated.” The Plaintiff, however, had no such duties and the church school was not shielded from Title VII duties or liabilities.
Church schools that intend for their employees to comply with church doctrine should require it in employment contracts. Those contracts should contain morals clauses. Those same rules should appear in employee handbooks. Both should be drafted by lawyer. The employee should sign a receipt for the handbook. The absence of both the handbook and the contract in the reported case probably contributed to the outcome. Another problem arises when a church school cannot make up its mind about whether it is, or is not, denominational, non-denominational, or secular. In the reported case, the secular subject teachers may have been separated from religious instruction or observance, which seems anachronistic in a church school.
The statutes governing non-profit corporations in some states require that employees or “representatives” be indemnified for legal fees in lawsuits in which they are named because of their title or position in the non-profit. Such statutes do not apply to personal matters that end up court. However, even a matter that seems merely personal may be escalated by a Plaintiff searching for a Defendant with more resources than that of an individual.
In Kawimbe v African Methodist Episcopal Church, Inc., Opinion and Order (ND GA, 2021) the federal trial court in Georgia dismissed the Plaintiff’s lawsuit to recover attorney fees. The Plaintiff was the subject of a disciplinary proceeding in the denomination that resulted in a jury trial. The jury was composed of ministers of the denomination. The Plaintiff hired legal counsel to conduct the jury trial and prevailed. However, the legal fees amounted to $75,000. The Plaintiff claimed the denomination owed the Plaintiff indemnification for the attorney fees expended defending the internal disciplinary proceeding. The denomination’s governing document incorporated Pennsylvania law and Plaintiff invoked that state’s non-profit corporation indemnification statute. The federal trial court, however, held the Ministerial Exception did not apply because indemnification for legal fees can be a matter of contract and decided using Neutral Principles of Law and that the indemnification issue did not implicate hiring or firing of clergy. But, the federal trial court held that in order to determine if Plaintiff’s cost of defense of the disciplinary proceeding was incurred because of his “representative status,” as a Bishop, an element of the statute, the court would be required to inquire into ecclesiastical matters barred by the Ecclesiastical Abstention Doctrine. The court held it would have to inquire into the duties of a Bishop, the nature of the disciplinary complaint in reference to the denomination’s governing documents and possibly other inquiries.
Written employment contracts that contain indemnification provisions may allow a court to invoke Neutral Principles of Law and decide whether clergy or non-clergy can recover attorney fees expended in their defense of claims, either internal or external. Denominational governing documents and local church governing documents sometimes contain indemnification clauses, too, that can likewise be subjected to review under Neutral Principles of Law. The reason may be that the court can assume the clause has been reconciled with ecclesiastical concerns and would not have been included if there was an ecclesiastical issue, or such an issue would have been stated in the clause. Generic non-profit corporation statutes may not be as easily applied because no similar assumption can be made.
Non-profit organizations that take federal or state funds usually must abide with governmental rules for use of the money, and sometimes other rules as well. Church schools are the most prone to government intrusion if their funding is in part or in whole from government sources. However, there are limits to the power of government money to compel submission by churches and denominations.
In Rutland v Nelson, Slip Op., Per Curiam (11th Cir. 2021), the federal appellate court affirmed dismissal of a case by a federal Florida trial court. The Plaintiff was by church and denominational disciplinary proceedings banned from all church property and from speaking to the denomination’s clergy. The federal trial court held that the Ecclesiastical Abstention Doctrine of the First Amendment barred judicial intrusion into church disciplinary proceedings and dismissed the case. On appeal, the Plaintiff argued that because the denomination accepted federal funds, it was subject to judicial review of his complaints discrimination based on “disability, veteran status, and religion.” The United States Court of Appeals for the 11th Circuit rejected that as a basis for shrinking or terminating First Amendment protection or expanding judicial authority.
At least for now, taking government money is not automatically a key to the church doors.
The question of whether First Amendment freedoms of assembly and worship should be or can be suspended during a pandemic was answered. See, Roman Catholic Diocese of Brooklyn v Cuomo, 592 US, ___, 2020 WL 6948354 (Nov. 25, 2020) (houses of worship regulated differently from department stores, schools and factories) and Robinson v Murphy, 592 US ___ (Dec. 15, 2020). “In recent months, certain other Governors have issued similar edicts. At the flick of a pen, they have asserted the right to privilege restaurants, marijuana dispensaries, and casinos over churches, mosques, and temples. See Calvary Chapel Dayton Valley v Sisolak, 591 US ___ (2020) (Gorsuch, J. dissenting).” Cuomo, Dissent at 2. Or, …was it answered?
In Solid Rock Baptist Church v New Jersey, Opinion (D. NJ 2021), New Jersey banned gatherings indoors of more than ten people regardless of social distancing, masking, or temperature tests in March 2020. The Plaintiffs sued seeking the executive order enacting the ban be held unconstitutional and enjoined. The ban was altered as new executive orders were issued and finally terminated in June 2020. While effective, the Plaintiffs were prosecuted in state court for violating the bans. The Plaintiffs claimed that they restricted seating, numbers, required masks and took the temperature of congregants that had to have reservations to enter. The federal trial court dismissed the case. The federal trial court held the Plaintiff’s claims were moot because the complained of ban on indoor worship had been repealed by the state. The court also held it was not likely the state would repeat the unconstitutional behavior in the light of the Supreme Court decisions reference above. Indeed, the trial court held “[m]oreover, given the precedent set by recent Supreme Court decisions on pandemic-related restrictions, the law no longer provides [the State] a mechanism to repeat the alleged harm” (internal quotation marks and citations omitted). The trial court refused to consider constitutionality because of pending criminal charges (under the Younger doctrine, a doctrine that prevents federal courts from intervening in state criminal cases absent extra-ordinary circumstances).
The actions of many states hampering church activities but not secular economic activities is a harbinger that churches should not ignore. First Amendment rights are fragile and government has no compunction about overruling them. Economic turmoil or political turmoil will cause as much fear and panic as do plagues and pandemics. Churches that did not have a presence on the internet and the capability to conduct their activities virtually might be snuffed out of existence next time…and there will be a next time. Moreover, churches are often completely disconnected from their local governments where they might actually have some influence. Church members and pastors rarely know the local officials at all. It will be the local elected city council by their police force, or the county Sheriff, that will come to padlock the doors or ticket (or arrest) attendees and pastors, not the White House or even the Governor’s Mansion. City police and a county prosecutor initiated the prosecutions in the reported case, as a case in point.