Author: churchlitigationupdate

ALIGNMENT OF PUBLIC HEALTH WITH SECULAR CONVENIENCE*

The Sars-2 COVID-19 pandemic of 2020 has slowed church litigation resolution such that even the number of posts for 2020 in these reports have compared to prior years been diminished.  Nevertheless, there have been some startling court pronouncements.  The most startling may have been the struggle to determine if during this pandemic church attendance should be treated better than, the same, or worse than secular activities.  The secular activities might viewed as “essential” or merely matters of secular convenience.  On the secular side of the equation, too, there has been a struggle to determine what was “essential” and what was merely a matter of convenience.  In a capitalistic economy in a democracy, every secular business is “essential” to someone or it would not exist.

In Roman Catholic Diocese of Brooklyn v Cuomo [consolidated with Agudath Israel of America v Cuomo], Slip Op., 592 US ____ (November 25, 2020), New York limited religious worship service attendance to 10 in red zones and 25 in orange zones regardless of the size of the church building (seating of 400 to 1,000 was treated the same as seating for 100).  Meanwhile, in the same zones, “essential” businesses like hardware stores, acupuncturists, and liquor stores remained exempt (Gorsuch, concurring*).  However, churches though singled out, received preferential treatment compared to theatres and other similar venues (Sotomayor, dissenting).  (The dissent also all but said greater restrictions on worship were warranted because of public speaking and singing which seemed to play to the transmission preferences of this particular disease.)  The United States Supreme Court enjoined enforcement of the state’s regulation as to churches pending completion of judicial review at the trial court and court of appeals levels.

The courts of the United States were much more prone to accept even draconian governmental restrictions on public and private gatherings when the pandemic began because the characteristics of the disease were still unknown and because medical response systems were still being marshalled to handle larger if not unprecedented numbers of patients.  However, seven months later, those uncertainties are far more manageable than before such that the courts are unlikely to permit unbridled and uneven regulation of worship gatherings.  It should be noted that the church plaintiffs in these cases were able to prove that their gatherings remained virtually free of outbreaks of COVID and that their efforts to control disease transmission were consistent with scientifically advised methods.  In any event, even if public health priorities might favor secular activities over religious activities, it will not going forward permit greater curtailment on First Amendment protected religious activities.

MORALS CLAUSE SPECIFICITY

Churches and church schools often adopt employment morals clauses.  Morals clauses rarely specify the immoral conduct prohibited because the owner or sponsor of the school is a church that has a generally known doctrinal or biblical stance regarding morality.  Termination based on alleged violation of a morals clause, especially in mainstream churches and their satellites like church schools, may not always shield the school or the church from liability claims based on employment discrimination statutes.

In Crisitello v St. Theresa School, Slip Op. (NJ App. 2020) (unpublished), the appellate court reversed the summary judgment of the trial court for the second time.  The trial court found that being a terminated unwed pregnant female was not actionable.  The church school had a morals clause that required the teachers and staff to adhere to the doctrines and morals of the Roman Catholic Church.  However, the employment handbook containing the morals clause did not in the clause expressly specify pre-marital sex as prohibited.  The plaintiff alleged the school’s termination decision was based only on the knowledge of the pregnancy and the teacher’s unwed status and was discriminatory because there was no inquiry into the premarital sexual actions of other employees, especially males.  The teacher was an art teacher and did not teach religious education, distinguishing the claim from those in Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U. S. ___, (2020) and Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. ___, (2020).  The Establishment Clause, the Ecclesiastical Abstention Doctrine, and the Ministerial Exception, were deemed inapplicable.

Of course, to suggest that the morals clause had to have greater specificity, such as a recital of the Ten Commandments or scripture citations, is itself an ecclesiastical determination.  The appellate court seems to have reasoned it is possible a college-educated person might go to work in a Roman Catholic church school and not know the Roman Catholic church has not yet endorsed as acceptable pre-marital sex.  While it may be that the teacher in the case reported did not have religious teaching duties, which might prevent application of the Ministerial Exception, it remains to be seen whether determining the scope of a morals clause might not entangle a court in ecclesiastical discussions.

CHURCH ASSOCIATIONS – THE 19TH CENTURY IS OVER

Most denominations, their subdivisions and local churches, generally prove their existence and right to own property by incorporating.  However, while this may be the best practice, it is not the only way.  Indeed, prior to the era of incorporation, most churches were associations of members and most denominations were associations of churches.  While most now have governing documents and corporate documents filed with a regulatory authority, for purposes of real estate ownership if nothing else, that was not always the case even during the latter stages of the Twentieth Century.  One of the reasons the organizational structure of the “association” fell into disuse was because of the need to obtain clear title to own real estate and bank accounts.

In Embassy University v Institute in Basic Life Principles, Inc., 2020 IL App (2d) 191140-U (2020), the trial court dismissed the case because the defendant alleged the Plaintiffs could not prove they were an association, and, indeed, could not prove up their own existence in order to be a party to a lawsuit.  The Plaintiffs were claiming they were part of an association of churches or parachurch organizations and that the defendant owed them a fiduciary duty in the disposition of denominational assets.  Further, to prove the point, the defendants noted that the Plaintiff university’s name was a “DBA” and not the name of the underlying entity.  The appellate court reversed so that through discovery, and if necessary trial, the Plaintiffs could prove they were an association with the defendant imposing on the defendant a fiduciary duty as to denominational assets.

The lesson of history has been that associations have a harder time proving their existence, their governance, who can speak for them, and who can own their property.  The Plaintiffs in the reported case might have an easier time than some because their founder, William Gothard, Ph.D, is still living, well known, even though he had to depart from leadership for a time, and can testify as to the formation of most of the entities.  The Plaintiffs should have incorporated.  It is still the cheapest and tried and true method of becoming an entity that can own property and accounts.

TERMINATION DEFAMATION CLAIMS

In the private secular sector, employers are typically very careful about revealing the reason for termination of an employee except upon service of a subpoena or regulatory order compelling production of the information.  But, there is no Ecclesiastical Abstention Doctrine or Ministerial Exception in the private secular sector so leaked defamatory statements, typically in email, texts, or other digital documents could form the basis for a defamation claim under the right facts.

In Maize v Friendship Community Church, Inc., Slip Op. (Tenn. App., 2020), the pastor was terminated and a group of communications leaked that indicated it was because of an allegedly improper relationship between the pastor and the sound booth operator.  The pastor tried to retain control of the church and the sanctuary building but was ultimately locked out.  Because a wrongful termination claim was not available, the pastor sued claiming that the leaked information regarding the grounds for termination was untrue and defamatory.  The trial court dismissed the case because the termination of a pastor by a church is outside the jurisdiction of the court due to the First Amendment imperatives.  The trial court held also that the allegedly leaked reasons for termination were likewise barred from judicial review by the Ecclesiastical Abstention Doctrine.  The appellate court affirmed.

Defamation claims are sufficiently problematic that only the wealthy can sustain them to any conclusion, but they are rarely won.  In the information drenched society defamatory information may have fifteen minutes of fame and then be forever lost.  Most defamatory information in the information age only migrates from one place to another if someone goes looking for it.  Nevertheless, churches and parachurch organizations should be circumspect regarding termination communications.  Defined precautions as to release of information may also provide a defense in some jurisdictions.  Of course, if the defamatory statement is true, there can be no claim, which may explain why there are so few successful defamation cases.