The Ministerial Exception Doctrine arose from the Ecclesiastical Abstention Doctrine of the First Amendment, in part, and from the statutory exception found in some federal employment laws that exempt religious organizations from the scope of such statutes. It has been refined most recently by the United States Supreme Court in Our Lady of Guadalupe School v. Morrissey-Berru, 591 US ___ (2020). The general import of the rule is that churches and parachurch organizations may select their own ministers without interference by regulators or courts. The question that then followed, as we have explored in many reports, is whether the employee was sufficiently “ministerial.”
In Simon v Saint Dominic Academy, Opinion, (D. NJ 2021), the federal trial court dismissed the case brought by Plaintiff, a “Chairperson of the Religious Department and Campus Minister.” Based on our prior reports that conclusion seemed obvious enough. What was less obvious was whether the Plaintiff’s claim, that the written employment contract was breached, could survive the Ministerial Exception. The federal trial court held that to enforce the written employment contract as to grounds for termination would be prohibited by the Ministerial Exception just as would federal statutory employment claims. While a compensation or similar covenant might have been enforceable under Neutral Principles of Law, the termination claim could not be.
While every case will turn on its own facts, financial contractual terms are most likely to be judged under Neutral Principles of Law and wrongful termination claims under the Ministerial Exception. Hopefully, for most church or parachurch employers, and their employees, this distinction is not too subtle to understand. Recognition of the existence of the distinction might forecast which claims to abandon or defend.
There is often no proof of knowledge by church employment supervisors that sexual misconduct occurred with a minor until long after the fact. One cause is that it is simply not reported to those supervisors at the time. Sometimes, inexplicably, that which is reported is some other tale that does not include any hint of a sexual event. However, sometimes it does become known to church employment supervisors.
In John Doe 122 v Marianist Province, Slip Op. (Mo. 2021), the Missouri Supreme Court reversed, in part, a summary judgment granted to the church. The claim sent back for further proceedings was a claim for intentional failure to supervise clergy. We previously reported on this case on January 29, 2020 regarding the Court of Appeals decision, which should now be considered superseded by this Supreme Court opinion. The Plaintiff’s proof of culpable knowledge by the church was presented by an apparently credible expert witness that personnel file entries contained euphemistic code words used at the time that, indeed, in code referenced inappropriate sexual behavior with minors. The trial court rejected such proof but the Missouri Supreme Court reversed and held it was for the trier of fact, probably a jury, to determine what weight to give the opinion.
While it is true that the standards of one era might differ from another, it is hard to imagine that clergy sexual misconduct could be so easily dismissed in any era by any church supervisory authority. However, it still seems to happen no matter how often legal counsellors decry it. Any church leader or clergy that becomes aware of sexual misconduct with a minor should consult legal counsel to determine if mandatory reporting is required. Such a consultation will likely not be free or quick unless the advice is to immediately report. Advice that indicates reporting is not required should be deliberate, careful, and thoroughly considered.
As we have reported, the battlefield regarding First Amendment religious rights is expanding beyond traditional church organizations to parachurch organizations. Classification of parachurch organizations is difficult in secular eyes because the mission of the parachurch organization may seem secular, i.e., homeless shelters, food pantries, student organizations, etc. Secular ears seem to hear most acutely in places where free speech was once thought to roam freely such as universities. As the opinion reported here quoted, “a religiously affiliated entity is one whose mission is marked by clear or obvious religious characteristics.” Generally,
In Intervarsity Christian Fellowship v Wayne State University, Order and Order Granting Plaintiff’s Motion for Partial Summary Judgment, etc., (ED Mich., SD, 2021), the federal district court in an 83 page opinion considered whether Wayne State violated the First Amendment by rejecting the registration of the Plaintiff as a campus organization. The reason given by Wayne State was that the Plaintiff violated the university “non-discrimination policy” by “requiring that its faith leaders profess to be faithful.” The Plaintiff carried out its mission by engaging student leaders. The student leaders were provided training and required to “undergo an apprenticeship” to become qualified to “provide religious teaching and spiritual guidance to other members.” The District Court held that the Plaintiff as a parachurch organization had the “deeply ingrained right of religious organizations to select their leaders and messengers.” The District Court also noted that the university ignored similar qualifications for leadership in secular, political and other religious organizations. The religious discrimination by Wayne State precluded the plaintiff’s free use of campus meeting rooms and other campus facilities.
The decision reported is interlocutory and partial. The court may make other decisions. The lesson for parachurch organizations interacting with secular forums is that freedom is not free and must be earned through some level of militancy. Wayne State stopped viewing a 75 year old parachurch organization as part of its diversity effort while including other secular, political and religious organizations even though all of them required their student leaders to be adherents to beliefs identified in the governance documents of the organization. Others will do likewise. If discussion does not lead to an accommodation or understanding, then litigation may be required.
History taught us about the folly of wars that lasted decades; The Hundred Years War is an example heard at least passing mention of in some long ago school room. In these reports we have included cases arising from disputes caused by the failure of church founders or long time senior pastors to have succession plans. The resulting battle for control of church assets is always unseemly and inconsistent with the departed leader’s vision. Worse, these types of disputes often involve surviving family members that believe they inherited an entitlement to assets but no corresponding duty to develop the skill sets needed to lead. The problem is worse at the denominational level.
In Trustees of the General Assembly, etc. v Patterson, Memorandum [Opinion] (ED Pa., 2021), the federal district court recited the “almost thirty-year dispute in state court that resulted from the lack of succession planning. The church consisted of 50 satellite churches in the United States, 6,000 members of which 3,000 member were resident in Philadelphia. The church founder was the “bishop” and held a lifetime appointment. The first successor likewise held a lifetime appointment. The “bishop” had unilateral authority over membership rolls. The first successor had seven sons and a daughter, some of whom became clergy or trustees. The battle over succession “created a schism in the church.” Two factions formed around competing family members. The majority faction “disfellowshipped” the minority faction. Each faction claimed they had elected the next “bishop.” Lawsuits followed that were decided in various courts and forums, including mandatory arbitration. The arbitration award was set aside by a state court and then later by that state court held to be a final adjudication. Based on that ruling, the minority faction sought to evict the majority faction from the main church building and the leader of the minority was faction was declared to be the “receiver” of all church assets. However, the leader of the majority faction was left in office as “bishop,” and would also ostensibly have control. Thus, the federal court held it was not possible to determine who had control of the church assets based on the arbitration award and enjoined the eviction. It took the federal court 84 pages and 61 footnotes to navigate the litigation history and reach a conclusion. The federal court left the factions where they were at the end of the arbitration.
The amazing thing to gain from this report and this court’s opinion was that the membership tolerated this and financed it through a generation and a half of members. Another amazing thing is that an arbitrator would enter a decision guaranteed to perpetuate the schism by dividing the authority between the factions. The last amazing thing is that the state judiciary did not make definitive rulings based on the governing documents in the first instance or based on the arbitration award in the second. The receivership should have been quickly administered and wound up with no delay accepted. There were either financial irregularities or there were not.