Author: churchlitigationupdate

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.