POST 300: IMMIGRANT MINISTERS VISAS

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.

TOO MANY BYLAWS

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.

YOUTH LEADER SEXUAL MISCONDUCT REPORTING

In the era of transparency, churches and denominations are publicly revealing sexual misconduct claims that in prior generations would not have been made public.  Youthful indiscretions of non-clergy lay members in prior generations would not have been considered a matter of church transparency.  That is no longer the case.  Those churches or denominations that have been forced into bankruptcy law protection by similar claims may publicly reveal sexual misconduct claims.  The question may then arise, for the non-clergy lay person that was a youth leader, can they get their name off such a public disclosure.

In the bankruptcy of the Roman Catholic Church of the Archdiocese of Santa Fe, Opinion (Bankr. D. NM 2021), the federal bankruptcy court in New Mexico had to decide whether to lift the bankruptcy stay in order to permit the state court Plaintiff’s defamation case to proceed.  The state court Plaintiff alleged he was defamed by being listed by the church in its public disclosure regarding sexual misconduct of “Priests, Deacons, and Religious Accused of Sexual Abuse of Children.”  The victim’s complaint was that the Plaintiff, a 19-year-old youth leader in 1970 was accused by the then 17-year-old victim of rape and molestation in a complaint filed in 1995 by the now deceased victim.  The Plaintiff alleged the sexual encounter was consensual.  The church listed the then 19-year-old Plaintiff as a “Benedictine brother” but Plaintiff denied he was ever such, nor was he ever a church employee.  Plaintiff attended seminary for a couple of years but was never ordained in any capacity.  Plaintiff served as a “lay minister” for 39 years (but the Court’s understanding of the role of a “lay minister” in the church in question was not explained).  After being listed, Plaintiff was no longer allowed by the church to serve in any capacity.  Plaintiff wrote a $5,000 check in 1997 and gave it to his lawyer but could not say how the money was used.  However, the victim’s lawsuit was settled, apparently by the church and its insurer, and the Court did not know whether part of the money came from Plaintiff.  The federal bankruptcy court refused to lift the stay because Plaintiff could not disprove that the victim made a complaint in 1995.  The Court held that the settlement precluded any finding the allegations were untrue.  The Court held the Plaintiff should have “appealed the decision through the church’s appellate channels.”  The Court cited no church authority or governing document regarding the availability of such a process.

The facts in the reported case are so odd that extrapolating principles from the case involve a degree of risk.  Also, the Court’s “findings” seemed to involve several inferential leaps.  In any event, publicly disclosing sexual misconduct allegations regarding a non-clergy, non-employee, 19-year-old seems to be risky and probably should not be done without an excruciatingly careful review of the facts and claims.  The first claim that could have been more carefully examined was whether in New Mexico in 1970 a 19-year-old could be a “Benedictine brother.”

DRAMA TEACHERS AND EMPLOYMENT LAW

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.