Private internal investigations and hearings held by churches in governance of the conduct of their members that are not made public, although the outcome in some limited respect might be made public, have historically been shielded by the Ecclesiastical Abstention Doctrine. State law tort claims and state and federal employment laws have been restricted from intrusion in church governance. The manner in which the hearing or investigation is conducted, as long as its internal, is usually unknown by anyone other than the participants.

In Williams v Kingdom Hall of Jehovah’s Witnesses, Slip Op., (Utah App. 2019), the alleged victim of sexual misconduct sued the church alleging that the hearing conducted about her conduct was tortious because of the manner in which it was conducted. The hearing was conducted to determine if she was a consenting participant in the sexual event. At the time of the event she was a minor. She attended the hearing with her parents. She alleged a recording (apparently audio only) of several hours duration, surreptitiously made and then produced to the church leadership by the alleged wrongdoer, was played at the hearing. During the church hearing, though she admitted she was free to leave, the Plaintiff alleged she cried and protested the playing of the recording. She claimed she could not leave the hearing because she feared she would be summarily “disfellowshipped.” At various points in the recording, playback was paused so she could be questioned about her consent. She claimed during the church hearing she was “crying and physically quivering.” The trial court dismissed the lawsuit and the appellate court affirmed.

The Utah appellate court seemed to rely on the Lemon test. Lemon v Kurtzman, 403 US 602, 612 (1971). “This test requires the government action “(1) must have a secular legislative purpose, (2) must neither advance nor inhibit religion, and (3) must not foster an excessive government entanglement with religion.” Id. (quotation simplified).” The third element of the test was dispositive to the Utah appellate court. The Utah appellate court characterized the Plaintiff’s claim as asking “the factfinder to interpret the “outrageousness” of the Church’s conduct in investigating her alleged sins.”

If the Plaintiff was required to be a witness against the alleged wrongdoer in a criminal or civil proceeding, the Plaintiff would have been cross–examined. The recording would probably have been made part of the public record even if the Plaintiff was not directly confronted with the contents of the recording. In a civil tort proceeding, there is less doubt about whether the victim would have been cross–examined using the recording. The recording was reportedly several hours in length. Thus, while the conduct of the internal church hearing might seem harsh, it might be no different than either a criminal court or civil court proceeding had there been either or both.

Internal church investigations will not typically be reviewed by courts under any theory as long as there is no public revelation of the hearing or investigation. The outcome should be carefully reported to congregations. Church leaders are typically unpaid non-professionals that need to be educated about such matters in advance. This may include their spouses. A church may wish to engage counsel to help make decisions about public disclosures. Public disclosures are those made available to non-members. Churches that do not have non-public worship services, for example, should not be reporting such things at worship services.


Someday, a qualified sociologist will study the last 60 years and explain the reluctance of the church to see and deal with sexual misconduct. Possibly a clinical, and secular, autopsy of the phenomenon will disclose cause and lead to a cure or prevention for future generations. Part of the problem such a study will have to overcome will be the bias of hindsight. Of course, the problem was not just in the church, as the case below makes clear. But, the church was the place the blindness was least expected.

In John Does v Boy Scouts of America and Church of Jesus Christ of Latter Day Saints, Memorandum and Order, (D. Idaho, 2019), the federal trial court as trial loomed ruled upon motions in limine. Such motions were filed by the Boy Scouts and the church to exclude the files of the Boy Scouts regarding volunteers and employees against which charges of sexual misconduct were considered during the last several decades. Some of the charges were investigated by the Boy Scouts but the lawsuit may hinge on whether the response to the charges was adequate or appropriate. The Boy Scouts urged the files should be excluded from evidence because they contained hearsay and were not official governmental investigations. The church argued the files should be excluded because the church did not know of the existence of the files. Of course, the ignorance defense of the church, a type of innocence defense, aids the Plaintiffs in their quest to prove the Boy Scouts obscured or hid the problem of sexual predators in their midst for decades. Also, the files may arguably by their numbers indicate the church had to know, too. The trial court overruled the motions. While that does not mean each file or document within each will be admitted in evidence, it does mean more will be admitted than excluded all things being equal.

Mandatory child sexual misconduct reporting laws will be enforced, even if the enforcement is many years after the events alleged. Churches, schools, and youth services providers must train out of existence the idea that they get to decide internally or privately the issue of credibility, guilty, fault, or punishment. Pastors, especially, and church leaders that try to exercise discretion about whether to report or not because they are uncertain if allegations are “true” are inviting public censure at the least and jail time at the worst. In the middle are substantial money damages for which most churches do not have sufficient insurance coverage. If the question of reporting is really unclear, the church should immediately engage counsel to render an opinion about the necessity of reporting and risks of failing to do so.


There are few monastic or other orders remaining and there are few members of them. Evangelicals have generally not developed monastic traditions. Indeed, among some evangelicals, the ordination of the minister persists as long as there is a paycheck and the minister’s vow of poverty is involuntary. Nevertheless, the question of whether these vows are enforceable may arise in secular matters involving ecclesiastical monastic orders.

In Wisconsin Province (“Jesuits”) v Cassem, Memorandum of Decision on Defendant’s Motion to Dismiss (D. Conn., 2019), the federal trial court has before it a lawsuit in which a deceased Jesuit left a retirement savings account. As a Jesuit, he had contributed his earnings to the order all of his life pursuant to his vow. The order provided his living expenses since age eighteen. The bulk of his earnings, however, were derived from a very successful and prominent career as a research psychiatrist. Indeed, the retirement account at issue, which was valued at about $1.5 million, was maintained for most of its existence with a beneficiary designation that named the Jesuit order. Late in life, the Jesuit suffered from dementia and returned to reside with his family during the last years of his life. Sometime during that period, the Jesuit allegedly changed the beneficiary designation on the retirement account from the order to family members. The trial court dismissed the Jesuit’s request for a declaratory judgment that the Jesuits owned the account based on the lifelong vow of its deceased member. The court held that the vow was a contractual obligation of the deceased to the order. Remaining would be whether the order could seek contractual enforcement of the vow against the estate of the deceased Jesuit and whether that contract would supersede the beneficiary designation. That question was not answered in this opinion.

Whether an ecclesiastical vow is enforceable as a contract in a secular court would require a court to determine if the First Amendment Ecclesiastical Abstention Doctrine precluded the claim. Modern church organizations should assume an ecclesiastical vow will not be enforceable in a secular court in most situations, especially if the vow must be enforced against persons not members of the church organization in which the vow was made. For example, the retirement account should have been largely drained by the order with the assistance of the Jesuit upon retirement, if the order was aware of the account, instead of awaiting distribution upon death.


The question of whether donative intent is binding often arises in local church leadership discussions. However, donative intent rarely is a factor in church litigation because it is rarely placed at issue by the donor.

In Holy Trinity Romanian Orthodox Monastery v Romanian Orthodox Episcopate, Slip Op. (Mich. App. 2019), the trial court decided based on donative intent that the attempt to transfer the property away from the hierarchical denomination was successful. The Court of Appeals reversed. The court of appeals held that the because the warranty deed gifting the property to the denomination did not preserve the donative intent to provide a life estate to the Plaintiff the donative intent was not relevant. (The trial court also failed to consider the impact of the Ecclesiastical Abstention Doctrine, probably because of the donative intent issue, and was reversed on that as well. Hierarchical denominations retain their church governance sovereignty.)

Donative intent is not preserved simply because the donor tells a church leadership of the intent. Once the gift is made, the donative intent is irrelevant if not preserved in a manner that restricts the ownership or disposition of the ownership of the gift. While among church leaders there are often many urban legends about the binding effect of donative intent, the truth is that it is usually no more binding than the church leadership’s voluntary decision to do so. Fungible gifts like cash lose any connection to the donative intent as soon as the cash is deposited in a church bank account.


As reported herein in October 2017, the United States District Court in Wisconsin ruled unconstitutional the housing allowance tax exemption for ministers in the federal income tax code, 26 USC §107, because that court held it violated the Establishment Clause. Gaylor v Mnuchin, 278 F Supp 3d 1081, 1104 (WD Wis. 2017). The challenge to the statue was brought by a non-profit advocacy group called “Freedom From Religion Foundation.” The IRS and intervenor churches appealed. Indeed, the IRS complained that the “survival of many congregations hangs in the balance.”

In Gaylor v Mnuchin, Slip Op., ___ F3d ___ (7th Cir. 2019), the United States Court of Appeals for the 7th Circuit reversed the Wisconsin trial court’s ruling.

The 7th Circuit upheld the constitutionality of the statutory housing allowance for ministers applying two constitutional tests: the Lemon Establishment Clause test and the “historical significance test.” Lemon v Kurtzman, 403 US 602 (1971); Town of Greece v. Galloway, 572 U.S. 565, 576 (2014). The Lemon test is probably controlling because the “historical significance test” has a checkered history according to the 7th Circuit. The Lemon test included three prongs: 1) secular legislative purpose; 2) primary effect of advancing or inhibiting religion; 3) excessive entanglement with religion. If the statute “fails any of Lemon’s three prongs, it violates the Establishment Clause.” Gaylor, 7th Cir. at 10.

The secular purpose may not always be reliably gleaned from the legislative history. Statements of motive in hearings before the Congress are not official statements of that body. In order to violate the secular legislative purpose test, the statute must be “motivated wholly by religious considerations.” Because it appeared the statute, passed in the 1950’s in its present form and in other versions immediately after income tax became constitutional for the first time in 1913, merely brought ministers in line with other “convenience of the employer” statutes (e.g., sailors, construction crews, etc.), among other things, it had a secular purpose. Persons seeking the tax exemption still had to meet the five part test to be eligible.

The 7th Circuit reprised the holding that the “grant of a tax exemption is not sponsorship since the government does not transfer part of its revenue to churches but simply abstains from demanding that the church support the state.” Walz v Tax Comm. of City of N.Y., 397 US 664, 675 (1970). Thus, there was no “primary effect of advancing” religion.

Finally, the third prong of the Lemon test was “passed” because the statute, while requiring the IRS to determine eligibility, i.e., whether the applicant is actually a minister, did not require the IRS to become entangled with religious questions by determining whether the minister’s home was used for religious purposes. The “convenience of the employer” aspect of the housing allowance made it no different than similar tax exemptions.

The “historical significance test” was “passed” because tax exemptions for church property and income began as early as 1802 when the Congress exempted church property from property tax in the County of Virginia, which at that time was under federal control. “Today, more than 2,600 federal and state tax laws provide religious exemptions.” The Congress passed the first housing income tax exemption for ministers as soon as the Sixteenth Amendment permitting income taxation was passed.

The 7th Circuit decision may be persuasive but it is not definitive in the other circuits. Only the United States Supreme Court could finally decide the issue. However, for the foreseeable future, the matter is decided.


Parachurch organizations, like senior care facilities and universities may eventually want to slip the leash and go their own way. Sometimes the efforts are crude and tempestuous. Other times they look like perpetual slow motion over a generation or more. In the end, however, if denominational control is exerted through organizational incorporation or governance documents, such as bylaws, the likelihood of escape under current law remains minimal. In the long drawn out efforts to escape, in contrast to the short noisy ones based on momentary shock and awe, it is a test of wills cloaked in the political correctness of the culture of the denomination in which each side attempts to drown the other’s position in kindness and mild rhetoric.

In Missouri Baptist Convention v Missouri Baptist University, et al, Slip Op. (Mo. App. 2019), the denomination’s lawsuit to enforce the governing documents of the university and the senior care center was filed in 2002 and summary judgment granted by the trial court in 2017. There is no explanation in the opinion why this case pended, or was allowed to pend, for fifteen years. The Court of Appeals affirmed the Summary Judgment in 2019 in the seventeenth year of the case. While the university and senior care center defendants attempted to convert the issue to an ecclesiastical issue that could not be judicially resolved, the attempt failed. However, the clever argument was that by deciding the denomination retained its explicitly preserved right to veto changes to the governance documents, the court was in effect deciding a religious dispute that arose between them. The religious dispute was not fully detailed but appeared to be that the denomination wanted the university to adhere in teaching to traditional religious doctrine rather than current scientific theories or conclusions. The clever argument about control and implied ecclesiastical decision making was blunted by the admission by the university and the senior care center that that the denomination was not, in fact, motivated by religious principles in its pursuit of control of the governance documents. That left the governance documents free to be enforced under Neutral Principles of Law, even if the implication of such a ruling would determine where control of the parachurch organization might reside. The appellate court held that third party consent clauses in corporate governance documents did not violate public policy but rather actually effectuated public policy.

Third party consent to amendment clauses in corporate governance documents will generally be enforced. Rather than litigating them, the better practice for the parachurch organization would be to try to raise the capital to buy the clauses back from the third party. A purchased release or waiver would be more certain and less expensive than litigation. Negotiations stretching back over many years may be necessary but stand a greater chance of success. If litigation is preferred, the argument that enforcement of the governance documents will also unfairly decide, not just implicate a true religious dispute, is the only avenue that offers any material slim hope in most states.


Defamation and its cousin, false light invasion of privacy, were much more viable common law claims a century ago. A century ago damage to reputation was taken far more seriously than in the modern age. Defamation is hard to prove and harder to use as a theory of recovery for damages because causation of damages is difficult to prove. False light invasion of privacy has been flatly rejected as a common law cause of action in several states or simply folded into defamation law. In church litigation, defamation and false light claims, where permitted, do not fare well.

In Byrd v Deveaux, Memorandum Opinion (D. Maryland, 2019), the United States District Court granted summary judgment holding the pastor’s false light claim against the denomination and its bishop was barred by the Ecclesiastical Abstention Doctrine and the Ministerial Exception. The denomination publicly reported the pastor was placed on administrative leave, and recommended for “non-reappointment,” because alleged commingling of church funds and a loan default that persisted for eight years placed the church property in jeopardy. The pastor argued there was an exception to the applicability of the First Amendment Doctrines when the false light was based on “fraud or collusion.” However, pastor’s authority for the argument, the United States Supreme Court case, Gonzalez v Roman Catholic Archbishop of Manila, 280 US 1 (1929), which recognized the exception in dicta, was rejected as a holding in subsequent decisions.  Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 714 (1976).

Church discipline, both local and denominational, remains outside the preview of secular civil courts because of the First Amendment shield with regard to pastors. While the First Amendment doctrines are more permeable as to non-members of the church or denomination, no such penetration seems likely as to pastors or members. While generally employment matters should be treated confidentially, as current events unfold, that luxury may no longer be available as to employee pastors. The positions of trust that pastors typically earn may simply lead to a level of transparency church organizations require to maintain their own credibility in the face of the failure of a pastor.