Author: churchlitigationupdate

THE NOT RELIGIOUS ENOUGH TEST IS NO MORE

As reported herein, the United States Court of Appeals for the 9th Circuit, in Biel v St. James School and in Morrissey-Berru v Our Lady of Guadalupe School, held that elementary school teachers in Catholic schools were permitted to assert federal employment law claims.  The 9th Circuit held that the elementary church schoolteachers were not “religious leaders” and their employment duties were not religious enough to require Courts to abstain from such claims pursuant to the Ministerial Exception of the First Amendment.  That the teachers taught fundamental religious materials required by the church school did not matter in the 9th Circuit because that was not sufficiently religious or ministerial.

In Our Lady of Guadalupe School v Morrissey-Beru consolidated with St. James School v Biel, Slip. Op. (US 2020), the United States Supreme Court reversed the 9th Circuit in both cases.  Furthering the formulation of the Ministerial Exception as applied to a church school teacher in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171 (2012), the Supreme Court held that the religious education and instruction duties of the teachers, the very reason for the existence of church schools, was at the core of the mission of the schools.  Such duties were “vital religious duties.”  Judicial review of church supervision of those duties would entangle the courts in ecclesiastical disputes “the First Amendment does not tolerate.”  The duties of the teachers “implicated the fundamental purpose of the exception.”  Because determining whether a person “is a co-religionist” would be difficult if not impossible in a secular court, that the teacher may not be a member of the religion about which the school was formed would not be determinative.  While seemingly called for by the Concurrence, deference to the religious employer’s “good faith claims that a certain employee’s position is “ministerial” may be a factor but probably is not the stand alone test.  The Dissenters interpreted the opinion of the majority as boiling the Ministerial Exception down to a single inquiry:  whether the church “thinks its employees play an important religious role.”  Likewise, it may be a factor but does not appear to be the standalone test adopted by the majority opinion.

Church schools should in their contracts, employee handbooks and other school governance documents make it explicit that teachers are expected to engage in religious training of students.  Such descriptions should be sufficiently detailed to convey the core mission of the school is met by the religious instructional program to be administered by the teachers but not so overstated that litigant former employees will point to it as proof they were not intended to be considered in its scope.  Employees that do not have religious instructional duties or similar duties may still be eligible to assert federal employment law claims.  Overreaching attempts to include such employees in the Ministerial Exception’s reach will likely not be successful.  However, all church school employees can be subjected to a Code of Conduct employment provision that requires life style and other compliance with religious tenants of the school.  Such provisions should be acknowledge in writing upon hiring by the employees.

THE DOOR THAT WILL NOT OPEN

While many churches seek to employ transnational employees to serve as worship leaders for transnational parishioners or to give a transnational flavor to worship, there are immigration law barriers and requirements.  Such barriers and requirements, while more likely enforced in the present administration, have been present in one form or another throughout the 21st century and some beyond that.  Almost sixty years ago, as a child watching Saturday morning cartoons on broadcast television in black and white transmissions, the Public Service Announcements broadcast in addition to used car sales commercials reminded aliens of the need to renew registration annually.  Churches that must confront these laws should do so with qualified immigration law counsel.

In Liberty Church of the Assemblies of God v Pompeo, Memorandum and Order on Defendants’ Motion to Dismiss (D. Mass. 2020), the federal trial court dismissed the case challenging consular denial of a visa to a music worship leader from Brazil.  The court invoked the Doctrine of Consular Non-reviewability.  The music worship leader originally entered the United States under a Form I-129 application for “R” status filed by the church.  The music worship leader worked in that role in 2019.  However, in November of 2019, the music worship leader returned to Brazil to become engaged to his fiancée.  He could not return to the United States under the original “R” status without first obtaining a new visa.  The consular officers in Brazil ruled the music worship leader was ineligible and denied the visa.  The basis given for the ruling was that the music worship leader had been in the United States for five years and there was no evidence of any intention to return to Brazil.  Allegedly, the consular officers denied the application for the visa without review of any or all of the documentation submitted.  The Doctrine of Consular Non-reviewability generally precludes a federal court from reviewing a consular officer’s decision to deny a visa because the issues raised are “non-constitutional.”  The church argued that the decision of the consular officer denied the church’s First Amendment rights by violation of the Establishment Clause.  However, the trial court held that refusal of a visa was not an entanglement with establishment of a religion.  Also, there was no evidence submitted the religious beliefs of the music worship leader played any role in the decision.

If, indeed, the music worship leader was not to be sent back to Brazil by the church to continue ministry there, an immigration lawyer should have been consulted before he returned to Brazil for the engagement.  Also, the opinion does not state whether either the church or the music worship leader engaged in efforts to obtain either permanent residency status or citizenship.  However, churches should assume that regardless of the political orientation of the administration in any given era, church applications for “R” status will not be viewed with the same “open arms” as similar applications from businesses seeking to brain drain other countries.  The same scenario reported in the case reported has been seen by the author in administrations by both major parties.

FACING THE MUSIC AT HOME

Home field advantage is a substantial advantage.  In litigation, sometimes it favors the Defendant and sometimes the Plaintiff.  Additionally, the court near the Defendant’s headquarters might be the “forum” with the more advantageous laws, such as stricter statutes of limitation.  Also, defending a case or prosecuting a case in a court distant from homes and headquarters can be expensive, in part because of travel costs, but sometimes because a local lawyer must be engaged to assist the lawyer of choice not admitted in the distant court.

In Doe v Archdiocese of Philadelphia, Opinion (D NJ, 2020), the federal trial court rather than dismiss the Plaintiff’s case transferred the case to federal trial court in Pennsylvania.  The New Jersey trial court held it did not have personal jurisdiction over the Defendant in the case presented.  The Plaintiff alleged the employee priest sexually abused the Plaintiff in both Pennsylvania, the location of the local church facilities, and in a beach home in New Jersey.  The abuse continued for a short time even after the priest was transferred.  A quarter of a century later, the priest was laicized.  The federal trial court held that the priest was not acting in course and scope of employment as a matter of law while sexually abusing Plaintiff, therefore, making the transportation of Plaintiff to New Jersey not an act attributable to Defendant which might have conferred jurisdiction.  The Defendant did not purposely direct its activity to New Jersey that caused the harm to Plaintiff.  The Defendant did not have a “substantial connection” to the forum, New Jersey, that was related to Plaintiff’s claims.  However, the Defendant did own property in New Jersey, but that property was not involved.  (While the ownership of the beach house was not mentioned, it was apparently not owned by the Defendant.)  The employment and assignment decisions over employed priests was not carried out in New Jersey.

The reported case might have been quite differently decided.  Because the Plaintiff alleged sexual abuse occurred at the New Jersey beach house, the court could easily have held that the alleged wrongful conduct of the Defendant in failing to supervise, hire, and inquire as to reasons for transfer was substantially connected to the events in New Jersey.  The beach house trips involved the priest and several young boys, only one of whom was the Plaintiff.  For example, a trucking company can usually be sued along with their employee driver at the location of the accident irrespective of whether the trucking company directed the employee driver to travel through that state or to drive negligently, recklessly or drunkenly.  A church bus in a foreign state engaged in a mishap will likewise likely cause the local church to be named in the foreign state court, probably even if the driver borrowed the vehicle for a personal trip.

PUBLICLY REPORTING SEXUAL MISCONDUCT OF CLERGY

There are movements afoot, that may or may not be successful, to make criminal convictions non-public and to ban employers from considering convictions, much less allegations that did not lead to convictions.  The concerns behind these movements is that persons convicted of crimes, especially felonies, are permanently “marked” and find employment problematic.  Meanwhile, there are movements afoot, that have had marked temporal success demanding transparency regarding allegations of sexual misconduct against those in power and especially in the clergy.  Those targeted by such allegations, even though the allegations are no longer actionable or prosecutable are often similarly “marked” and their future employment impaired.  Persons against which allegations were made but for which no conviction resulted may resort to civil lawsuits to try to clear their name or suppress continued reporting of pending or unresolved allegations.

In Kaucheck v Detroit Free Press, Slip Op. (Mich. App. 2020), a priest was suspended from public ministry in 2009 regarding allegations of sexual misconduct after an “independent investigation” determined the allegations were “deemed substantive.”  The church process regarding the allegations remained in the “Congregation for Clergy at the Vatican.”  The priest founded in 2016 a ministry to teenage pregnant females at which he served as an ex-officio board of directors member and “director of development.”  The ministry was not officially affiliated with the church.  A public outcry ensued which found its way onto the internet and finally into the news media.  The Plaintiff sued the news media and the individuals and organizations complaining about the Plaintiff’s involvement in the ministry to teenage pregnant females.  The trial court granted summary judgment to the defendants.  The appellate court affirmed holding that the statements made were not defamatory because they were true and because public reporting of the allegations and the outcry was protected non-actionable First Amendment speech.

The structural flaw in the Catholic church is that the final decision to defrock or exonerate a priest, bishop or cardinal cannot be completed in a timely manner.  In the case reported the case remained unresolved after eleven years.  Thus, the Plaintiff was left before the public as a priest.  The announcement of the church that the Plaintiff was “banned from public ministry” was not emblazoned on Moses’ tablets and was prone to being lost in the mists of time.  The Catholic church could restructure such decisions so that national level determinations are made by a “jury” of the leadership.  Appeal to a Vatican level review could be by application for certiorari, much like the United States Supreme Court.

Evangelical denominations move more quickly but then must require their local churches not to allow defrocked clergy into local church leadership positions.  Verification should be practiced by an annual review of the names of local church leaders and employees.  In the age of computers, this is not an insurmountable task.  Non-denominational churches should actually call church leaders at prior employers, rather than only conduct inexpensive criminal conviction background checks (which have their own problems in the age of identity theft and identity obscuring).  Personnel file waivers can be signed by candidates for employment that allow personnel files to be retrieved from prior employers to verify that there have been no sexual misconduct complaints.