MINISTERIAL NON-COMPETE CLAUSES

It must be admitted that the last thing I thought I would ever post would be a case summary involving a non-compete provision between a member of the clergy and a church or denominational organization.  While non-compete provisions might have a place among sales people that make sales based on employer created resources in some circumstances or sale of a business, it is hard to visualize a non-compete against an evangelist, a minister or a pastor.  The needs met and the skills brought by these people are supposed to be outside the pale of government intervention, influence, interference or regulation.  The First Amendment, the Ecclesiastical Exception Doctrine and the Ministerial Exception Doctrine are intended to protect from government some of the most valuable and fragile treasures in a free society.  Of course, so also enshrined in the Constitution is the sanctity of contracts.

In Steiner v American Friends of Lubavitch (Chabad), Slip Op., (DC App., 2018), the Plaintiff was a rabbi employed to operate a campus ministry.  He was employed under a written employment contract that contained a non-compete provision.  The non-compete provision also contained elements that might be recognizable as a non-solicit clause.  The Defendant sought a preliminary injunction.  The trial court determined the non-compete provision was greater in breadth than necessary to protect the Defendants’ reasonable interest and modified the non-compete provision and then granted a preliminary injunction.  The preliminary injunction precluded the Plaintiff from conducting ministry within one mile of the college campus (geographic limitation), precluded it for two years (temporal limitation), and Plaintiff could not be hired by another campus ministry on the same campus that supported orthodox Jewish belief or practice.  The Plaintiff continued to use the former employer’s name and some of its property.  The appellate court affirmed.  However, the trial court’s injunction of the Plaintiff’s personal, i.e., non-employment ministry to the college students was reversed.  The appellate court also questioned whether the injunction could also prohibit the Plaintiff’s wife conduct in any respect and remanded for a hearing on that subject.  As an unemployed rabbi, the Plaintiff could continue to host Friday night Shabbos dinners, classes, social events for students, and annual trips to Israel for the students.  But, the Plaintiff could not do these things for a paycheck from another employer religious organization on that college campus for two years.

It is clear that this court, and maybe others, will determine that a written employment contract does not require interference in ecclesiastical issues or structures in order to enforce it.  However, practitioners that want to adopt employment contracts containing non-compete or non-solicit clauses between churches or para-church organizations and ministers will generally find that east of the Mississippi River it works better than west of the Mississippi River.  Also, hierarchical church and para-church organizations will find them easier to use than congregational or connectional church organizations.  It is likely that the church name and property will be subject to protection by injunction just like trade dress and trade secrets.  In the Steiner case, the parties engaged in an ecclesiastical hearing as well as multiple court hearings, followed by appellate review, and had not reached finality.  That might indicate that great expense will accompany an effort to enforce a ministerial non-compete.

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