Regulatory investigations of all kinds are unsettling because they are usually conducted in a manner without the due process safeguards found in a court. The right of confrontation is blunted or non-existent. The regulator seems to be the prosecutor and the judge. The common sense of a jury, much less its neutrality, are often perceived as missing. Things outside of the box or the norm tend to make regulators insecure and defensive. Regulators must navigate the shoals of their own too limited budgets and too expansive mission objectives.

In Trinity Christian School v Commission on Human Rights, Slip Op. (Conn. 2018), a church employee filed a discrimination complaint against the church before the state agency. The state agency commenced a proceeding. Presumably, the proceeding was autonomic process and it did not appear from the opinion to be the result of an investigation. The church moved to dismiss the proceeding urging the Ministerial Exception of the First Amendment. The motion was overruled and an appeal to the state trial court resulted in dismissal of the appeal because the Ministerial Exception was deemed to be an affirmative defense and not an immunity. The church returned to the state agency proceeding and submitted a second motion to dismiss based on the state statute that required state burdens on free exercise of religion only when there is a compelling state interest. This second motion was denied both by the regulatory agency and the trial court. The Supreme Court of Connecticut affirmed the trial court holding that the state statue was not a statute of immunity but was a “rule of construction.” Thus, the church was returned to the state regulatory proceeding to assert the Ministerial Exception and to argue with the regulator whether the regulatory mission was a compelling state interest.

Motions to dismiss are an excellent strategy for degrading the ardor of Plaintiffs of limited resources. It is also the only means to weed out implausible claims. In a regulatory proceeding, once that tactic is exhausted, the case must be built with the same eye to creating a record that would be made in court. Indeed, this may be the “trial” and the only “day in court” the church may have. Sometimes this must be done on very short deadlines and without the full discovery tools available in court. Sometimes this must be done in the face of defensive and hostile regulators that are activists for one cause or another. Most regulators, unless they happen to be a member of a church in the same tradition as the church before them, will be completely unfamiliar with church theology or traditions. If the main defense is the Ministerial Exception, then the religious duties of the former employee must be fully documented in excruciating detail. While the expenses mount, the church may have to consider an investigation of the regulators and their history with other churches that have been brought before them. The separate of church from state is a permeable wall when least expected.

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