Setting aside for this report the idea that revealing a member’s sin from the pulpit might be insensitive or even cruel, the question presented is whether it is actionable in a lawsuit. For non-church entities like businesses and government, unless there is a duty to speak, and even if truth was a valid defense, the conduct might still be sufficiently outrageous to constitute a Tort of Outrage claim, in those states that have such claims.
In Hullibarger v Archdiocese of Detroit, Slip Op. (Mich. App. 2021) the Plaintiff’s child committed suicide. (The opinion does not disclose whether the child was an adult or a minor.) The family did not disclose this outside of the family and a few close friends. Somehow, the priest learned of it and at the funeral service revealed it during the homily. The priest proceeded to “preach about suicide as a grave sin and specifically how it endangered the immortal soul of the plaintiff’s son.” The Plaintiff complained to the Archbishop but the Archbishop would not grant an audience. The Plaintiff sued alleging infliction of emotional distress, misrepresentation, invasion of privacy and claims against the church for negligent supervision. The trial court dismissed the case under the Ecclesiastical Abstention Doctrine. The appellate court affirmed.
Congregational churches are governed by leadership typically elected by the members. In some, the clergy, too, are hired by congregational votes rather than by elected officers. Most have boards of elected leaders that set policy. These boards bear names consistent with the doctrinal precepts of the congregation, e.g., “Elders,” “Deacons,” “Church Board.” The powers of the church board are typically set forth in the church governance documents, usually a constitution and bylaws.
In Howard v Heritage Fellowship Church, Slip Op. (VA. 19th Cir. Fairfax 2021), the Court overruled a Motion to Dismiss by the church. The Plaintiffs were church members that alleged that the church board revised the membership roll a second time, purging over three hundred from the membership roll, after the unsuccessful election of a senior pastor to convert it to a successful election by 2/3rds of the voting members. The Plaintiffs alleged that the church board’s actions violated the church governance documents. The Court held that a civil lawsuit regarding whether the actions of the church board were in violation of the governance documents could be decided by application of Neutral Principles of Law. The Court held no inquiry into ecclesiastical issues was required. The Court held the Ministerial Exception did not apply because there was no issue regarding the competence of the candidate for senior pastor but only a question as to whether the post-election recount after a post–election second revision of the membership rolls violated the governance documents. Also, the Court held the Plaintiff’s request for appointment of a receiver to protect assets until the senior pastor’s position was filled also did not require ecclesiastic inquiries.
For congregational churches that are governed by congregational voting, the membership rolls are important but rarely well maintained. Indeed, as the reported case indicated, the church board’s first count was off by over three hundred which the church board attempted to remedy after the failed election. Attendance is usually the test of membership and attendance records are not well maintained. Attempting to track attendance at every worship service, year in and year out, requires a financial commitment to staff most churches are unwilling to make. Volunteers come and go, too. At best, attendance records during the month before a congregational vote might be sufficiently reliable from which to derive a membership roll. The other problem with congregational votes are super majority requirements. Inflated membership rolls make such votes less than representative.
Confessional privilege is not particularly in doubt in most states except at the outer boundaries. Typically, the boundaries waiver among the states depending on the role of the person claiming the confessional privilege. Priests, ministers, rabbis, pastors and other clergy are usually identifiable by licensure, ordination, or church governance documents that describe their duties as ecclesiastical. But, when non-clergy exercise some of the duties ordinarily thought of as ecclesiastical, whether the confessional privilege extends so far is unclear in most states and in others clearly does not apply.
In Caekaert v Watchtower Bible and Tract Society, et al, Order Motion to Compel Hardin Congregation’s Subpoena, (D. Mont., Billings Div., 2021) the federal trial court had before it a motion to compel various entities including the local church to comply with a Subpoena. The Plaintiff’s claim was that she was subjected to serial child sexual abuse by two members of the local church. The Plaintiff complained to church leaders, but because she could not produce a second witness, her complaint could not proceed. Meanwhile, the sexual abuse allegedly continued. In the lawsuit that followed, Plaintiff sought copies of reports by the local church Elders both internally and to the denomination. The Defendants objected to the Subpoena arguing that members were promised that confession of sin to Elders would remain confidential. Because Montana was a mandatory reporting statue state, the tension with the confessional privilege was inevitable. The trial court enforced the subpoena by requiring that the documents be submitted for review by the Court for a determination of whether the confessional privilege applied to any one of or all of the documents. The trial court held merely labeling the documents sought as “confidential” did not make them cloaked by the confessional privilege. Further, the court would not extend the confessional privilege to “nonclerical church member statements.”
Ecumenical churches will face these questions regarding the scope of the confessional privilege that may be asserted by the diaconate. Evangelical churches also often have “Elders,” and may describe their office or duties in governance documents sufficiently to trigger a confessional privilege. Questions also will arise when recognized clergy counsels with a member and present also is a member of the diaconate or an “Elder.” Unless the statutes defining confessional privilege or mandatory reporting are amended to avoid conflicting duties, these questions will persist in arising.
Most local churches are separately incorporated. Each denomination exercises a unique level of control and supervision of their local churches that ranges from virtually none to substantial oversight. In those denominations that exercise substantial oversight, liability for the actions of the local church or parachurch organization might exist if the denomination was deliberately indifferent to those actions.
In Buettner-Haratsoe v Baltimore Lutheran High School Association, et al, Memorandum Opinion (D. Maryland, 2021) the federal trial court denied motions to dismiss allegations the church school and the denominational supervisory body failed or refused to control sexual harassment and abuse of minor female students by other students on campus as well as off. Social media, of course, was a major culprit but sexual assault and battery was alleged as well. The culture of the high school was characterized by the Plaintiffs as “hyper-sexualized.” One male student was prosecuted and pled out. The denomination sent a crisis management team to the school to try to address the allegations. The Plaintiffs alleged the crisis management team’s actual agenda was to squelch faculty complaints and the Plaintiffs’ allegations rather than take any action to remediate the situation. The trial court held “deliberate indifference,” an element of federal statutory discrimination claims, in this instance Title IX, sufficiently alleged against both the local church school and the denomination. The trial court held that none of the allegations required inquiry into any “ecclesiastical controversy.” The case will proceed through discovery and possibly future motions for summary judgment or trial.
If the allegations had sufficient credibility, due to numerosity if nothing else, to warrant dispatch of a special team to conduct onsite situational evaluations, the denomination should have dispatched qualified investigators, too. Qualified investigators should have included, for example, retired or former law enforcement officers and attorneys qualified to conduct such investigations. Each complaining student should have been interviewed on the record. Each faculty member that claimed to observe anything or to be the recipient of a complaint from one of the female students should have been interviewed on the record. Some of the complaints might have triggered state mandatory child abuse reporting statutes. Reasonable actions should have been designed based on the investigations and may have included student disciplinary actions as well as employee disciplinary actions. Local churches and denominational supervisory bodies that fail to make a record of duly diligent inquiry risk more than is risked by making a wrong decision about what to do about it.