INTERNAL CHURCH DEFAMATION

Typically, as long as the dispute among church members about church matters stays within the congregation the words said will not be actionable defamation.  Courts are barred from considering doctrinal issues by the Ecclesiastical Abstention Doctrine inspired by the First Amendment.  Thus, in order to avoid doctrinal issues lurking in ill chosen words among church members, courts refuse to hear internal defamation claims.  After all, while accusing someone of “lying” might be defamatory, it might be doctrinal if the claim is that they are lying about Scriptures in order to mislead the flock.

In Lippard v Holleman, Slip Op. (NC App 2020), the North Carolina Court of Appeals had to render the first decision in that state about whether statements made between members in a church regarding a church dispute were actionable defamation.  The church pianist and the Minister of Music began a dispute over assignment of church service solos that escalated into an intractable conflict.  Several, if not numerous, sessions to achieve “reconciliation” were attempted to no avail.  Finally, the Senior Pastor recommended termination to the Board of Deacons.  Eventually, the Board of Deacons recommended termination to the Personnel Committee.  Eventually, the Personnel Committee recommended termination to the congregation.  However, the congregational vote did not produce votes exceeding three-quarters of the voting membership in favor of termination.  As a result, the pianist remained employed and the dispute wore on until finally the pianist resigned and sued the pastor and music minister for defamation.

Defamation is almost impossible to win, truth is a defense, and wrongdoers rarely have the resources to respond in damages.  Nevertheless, oral statements and written statements should be temperate and truthful.  Oral and written statements should remain among the church membership.  If the constitution and bylaws of a church require a laborious termination procedure like that set forth in the case reported, they should be amended.  Laborious termination procedures will prolong an internal dispute to the detriment of everyone.  Fair and reasonable severance, even overly generous severance, is better than laborious termination processes.  Laborious termination procedures turn the process into a popularity contest based on a prolonged internal political campaign.

“NOT THEOLOGICAL ENOUGH” EMPLOYMENT CLAIMS

The United States Supreme Court on or about May 11, 2020 heard argument in two cases appealed from the United States Court of Appeals from the 9th Circuit (the west coast states) in which two particular school teachers at church schools were held not to be sufficiently ministerial to be barred from making federal law based employment claims. The scope of the Ministerial Exception to employment law claims has been litigated since the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171 (2012). In that case, the Supreme Court held that the teacher in question was also a minister which triggered the Ministerial Exception and barred her claims.

In Gregory Tucker v Faith Bible Chapel, Order on Motion for Summary Judgment (D. Colo, 2020) the federal trial court converted a Motion to Dismiss to a Motion for Summary Judgment because the motion appended three documents, two of which were the employment contract and the teacher handbook. The employment contract appointed the Plaintiff as “Chaplain” in addition to duties as a science teacher. The Plaintiff was allowed to chose among three proposed titles for the new duty, among which was “Chaplain,” but chose “Director of Student Life.” The Plaintiff claimed that title sounded the least religious as the motive for selecting it. The teacher handbook required teaching from a “Christian worldview” but Plaintiff claimed the school did not define it or provide training in a required curriculum. The Plaintiff claimed that the lack of specificity in theological content, and the explicit prohibition of promoting a single “Christian perspective over another” meant that the position was not religious and therefore, not ministerial. The trial court overruled the Motion for Summary Judgment and the case will proceed to discovery, and possibly trial.

Church schools of non-denominational churches have difficulty in secular courts because the idea of the Bible as the sole source of religious perspective is not understood as “specific” but is pejoratively assumed to be amorphous. Church schools of non-denominational churches that do not substantively document their religious perspective will be deemed to be without one. In the age of the internet and “distance learning,” this seems especially difficult to the secular court to understand. Just as teachers in public schools are required to have “professional development” time, so too should teachers in church schools. The difference is the “development training” of a church school teacher should include a substantive and identifiable religious component. For a position like “Director of Student Life,” it should also include substantive religious counseling training. While the local church owning a church school may not have the resources to provide it all inhouse, there are numerous Bible colleges that would provide the resource.

FEAR HIGHER THAN A FEVER

“The constitutional benchmark is governmental neutrality, not governmental avoidance of bigotry.” That is the standard by which laws, regulations, executive orders, and ordinances, even in a pandemic, will be judged by courts enforcing the First Amendment of the Constitution. Neutral law that also happens to govern churches may be enforceable. “The right to practice religion freely does not include liberty to expose the community . . . to communicable disease or the latter to ill health or death.” Prince v Massachusetts, 321 US 158, 166-67 (1944).

In Berean Baptist Church v Governor Roy Cooper, Order (ED NC ED 2020), the federal trial court in North Carolina was asked by a church to enjoin enforcement of the governor’s restrictions on religious gatherings. While well meaning, the restrictions required church services to be held outdoors unless it was “impossible” to do so or unless inside worship was required by “beliefs.” Funerals could host fifty persons, but worship could only host ten persons even though churches were deemed “essential.” A well-meaning law enforcement officer would be required to make a spot determination of whether an outdoor worship service was “impossible” or whether “beliefs” legitimately required indoor worship. (The example that came to mind was a baptism by immersion when no body of water was available on the parking lot.) The governor’s order was enforceable by criminal misdemeanor charges. The trial court enjoined enforcement for fourteen days and scheduled a hearing for a preliminary injunction. “There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.”

The Constitutional error imbedded in the governor’s order was the attempt to fashion an order specifically for religious activities. But, a general order applicable to every type of gathering would have closed “shopping malls” and transportation hubs so the governor of North Carolina opted to try and segregate various types of gatherings apparently by their perceived importance. The perception of importance may or may not have been conscious or intentional.

While no one would recommend intentional violation of a government order in an emergency while fears are running higher than the fevers to be prevented, many of the executive orders soon came to be viewed like the 55mph national speed limit on an interstate highway came to be viewed, a polite suggestion and nothing more, such that law enforcement could no longer enforce it. At this writing, many orders are expiring on their own temporal limitations. Thus, most churches will be able to worship as they see fit using the common sense, given by God just as was faith, to protect their people.

MINISTERIAL EXCEPTION LIMITATIONS

The United States Supreme Court heard oral argument in Biel v St. James School, 911 F3d 603 (9th Cir. 2018) yesterday. We reported on Biel in December 2018 and again in 2019. The Plaintiff, now deceased, was a 5th grade teacher in a Catholic elementary school. In addition to teaching secular subjects, she taught religion. The Plaintiff was employed under annual contracts. When her contract was not renewed, she sued and alleged that non-renewal occurred because she had breast cancer. She alleged the non-renewal violated the Americans with Disabilities Act (“ADA”). The ADA exempts “religious entities” by allowing religious preferences in employment decisions. But, the Plaintiff argued that the exemption did not apply and that the Ministerial Exception did not apply.

The 9th Circuit agreed with both of the Plaintiff’s arguments. Most importantly, the 9th Circuit held that being required to teach Catholic religion to 5th graders was “no religious requirement for her position.” The mandatory training Plaintiff was given to be able to teach Catholic religion to 5th graders was likewise no religious requirement for the position.

The Supreme Court’s ruling can be expected in the fall.

 

NEGLIGENT HIRING AND “THE CALLING”

Churches want clergy that are “called” to be clergy. What that might mean in any given individual or church context may differ, but the idea is that somehow the Heavenly Father made this choice and not the individual candidate or the church. Determining when someone has such a “calling,” without an objectively observed and verified Divine action, is a subjective determination. Sometimes, it is simply assumed.

In Doe v Apostolic Assembly of the Faith, Order, 2020 WL 1684227 (WD Tex. 2020), the federal district overruled a Motion to Dismiss. Motions to Dismiss are heard by courts at the inception of a lawsuit so that the court can exercise a gatekeeper function to prevent legally prohibited or frivolous lawsuits from proceeding. If the motion is overruled, the case proceeds through the pleading and discovery stage and may be disposed of by summary judgment or trial. Jane Doe, an underage female, was photographed in the nude with her youth pastor by the youth pastor at a hotel during a youth event. The photograph was posted to social media. The youth pastor pled guilty to interstate travel to meet a minor for illicit sexual conduct and was sentenced to 71 months of incarceration, post-incarceration probation of fifteen years and sex offender registration. The Plaintiff alleged that the church hired and ordained the youth pastor without conducting any interview as to training or fitness. This seems to have occurred because the youth pastor’s father was a pastor and a denominational officer. During travel events, the youth pastor was not otherwise supervised.

Failing to interview and screen church staff that will be charged with ministering to minors is all but indefensible. Churches that can afford to do so but do not have staff Human Relations professionals can engage an “HR” firm to conduct initial screening and background investigations. As to youth pastors and staff teachers, churches and church schools should impose strict written rules about communications with minors and children. Violation of the rules should result in immediate termination. Youth pastors and teachers that are permitted to interact with minors or children via social media should be restricted by policy to using only approved platforms and approved devices. Personal devices and unapproved social media platforms used should result in immediate termination. Parents should be made aware of these policies, approved devices, and approved social media platforms. Approved devices and approved platforms should be routinely inspected by other church staff for policy compliance.

WHEN ONLY MONEY REMAINS

Denominational determinations that a church or parish is no longer viable usually start with a nearly empty church building the remaining membership of which, no matter how faithful, can no longer financially bear the burden of the corporeal existence of the church. Even without a mortgage, church buildings require maintenance, grounds must be maintained, and parking lot potholes must be filled.

In St. Cyrillus v Polish National Catholic Church, Slip Op. (unpublished) (NJ App. 2020) the local church building was destroyed by fire. All that was left of the church property was the land and the $1,000,000 paid out under the fire policy. The church building could not be rebuilt for $1 million but the local church had no fund-raising plan to accumulate the difference. The local church membership prior to the fire had dwindled. The denomination dissolved the local church and took control of the land and money. The trial court granted summary judgment to the denomination. The appellate court affirmed. The governance documents of the local church required the local church to obey hierarchical rulings as did the governance documents of the denomination.

The process by which a non-viable church is swept from existence is usually foreclosure by a lender. However, in those rare instances in which a church is no longer viable, and under denominational control, denominational decision making will likely be binding. For churches not under denominational control, winding up the affairs of the church, once the excruciating decision to do so has been made, an asset merger with a viable congregation is the most pain free method.

DO NOT FORGET THE DEED

Title to local church property like any other property in most states is controlled by the language of a deed filed in governmental property records. But, as the years pass, church life cycles may include names changes as well as substantive changes in affiliations. Sometimes these changes should be reflected in an amended deed. Because institutional memory in a primarily volunteer organization like a church is not well preserved and change in circumstances and conditions is usually gradual disparity in ownership and governance documents can result.

In First Presbyterian Church of Magnolia v Presbytery of the Pines, 2020 Ark. App. 253, the trial court held that the quiet title action commenced by the local church against the denomination was not justiciable. The appellate court reversed and held the quiet title action, and any other properly raised claim, was justiciable if Neutral Principles of Law controlled the outcome. In a quiet title action, Neutral Principles of Law could make the case justiciable. The local church was formed and acquired its property in the mid-Twentieth Century when there were two denominational bodies. The local church was a member of the denominational body that did not have a property reversion clause in its Book of Order until thirty years after the formation of the local church. As a result, the property deed of the local church did not contain a reference to the reversionary clause. Later, the two denominational bodies merged leaving a single denominational organization. The surviving entity did have a reversionary clause in the surviving Book of Order. On remand, the trial court will be faced with a reversionary clause adopted after the fact and twice removed from the original property deed that did not contemplate either reversionary clause.

Some states may place a property deed on a part with denominational governance documents. Denominations may desire that local church property deeds reflect denominational interests. However, that may make mortgages problematic. Local churches must evaluate their denominational affiliation carefully and determine whether the state of residence of the local church would consider denominational governance documents controlling over local church property deeds.