Author: churchlitigationupdate

ERODING THE FIRST AMENDMENT – THE NEW CALIFORNIA ELEMENT OF THE MINISTERAIL EXCEPTION DOCTRINE

The First Amendment of the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That would seem clear. Indeed, in the seminal case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), federal employment law was held inapplicable to church employees if 1) the employee was “held out as a minister;” 2) the employee had the title of “minister” (or its equivalent); 3) the employee accepted a “formal call to religious service;” and 4) the employee had “a role in conveying the Church’s message and carrying out its mission.” Id., at 191-192. The foregoing formula was not to be applied mechanistically and, indeed, not every element had to be satisfied.

In Su v Stephen Wise Temple, Slip Op. (CA App., 2019) the appellate court reversed a summary judgment granted against the Labor Commissioner of California and remanded the matter for further proceedings. The Jewish temple employed forty teachers in its pre-school. The teachers need not be Jewish but were required to introduce children to “Jewish life, religious ritual and Judaic observance.” But, even though the teachers were “transmitting Jewish religion and practice to the next generation,” they were not “sufficiently central to a religious institution’s mission.” Therefore, the Ministerial Exception did not apply. The opinion does not state whether the pre-school teachers were complainants. However, the only issue raised by the Labor Commissioner in the case was whether the teachers were provided with “rest breaks, uninterrupted meal breaks, and overtime pay.”

The California court seemed oblivious to the reality that determining the pre-school teachers were not “sufficiently central to a religious institution’s mission” required an inherently ecclesiastical inquiry. The California appellant court was oblivious to the reality that it invaded First Amendment prohibited territory by holding that the “significant secular component” outweighed the religious instruction is listed at length. Moreover, and most offensive to the First Amendment, the California appellate court admitted “the pre-school is part of the Temple’s religious and educational mission, and it fulfills a religious obligation of the Temple. The [pre-school] exists to instill and foster a positive sense of Jewish identity and to develop in children favorable attitudes towards the values and practices of Judaism.” Thus, the California appellate court unleashed the California Labor Commissioner to make certain the pre-school teachers had the correct breaks, meal time, and over time pay to accomplish their admittedly religious mission.

THE REACH OF DENOMINATIONAL AUTHORITY

Denominational authority over a local congregation or its property is rarely extinguishable at the local level. If it is severable, the process is likely long and arduous. The process often depends upon unilateral agreement by the denomination which is historically unlikely to be obtained for any reason. Indeed, it is so unlikely the better plan is simply to develop external resources and then quietly exit the denominational local church, leaving behind a shell.

In Cedar Grove Baptist Church v Barnham, Slip Op. (Unpublished) (NJ App Div., 2019), the pastor advised the denomination he was leaving the denomination and taking the church with him. Apparently, however, his plan was not known, and later not supported, by the church he served. Indeed, in the ensuing battle over the local church property, the church leadership appointed a new pastor and then sued to enjoin the former pastor from control or presence on the church property. The trial court granted the injunction and the appellate court affirmed.

While instinctively church members think of the local church and its property as “theirs” and not the denomination’s property, this is rarely totally true. If a church has been a member of a denomination for many decades generations of the faithful have contributed to its existence. While the current generation may disdain the denominational roots, the denomination speaks for the generations that went before that now have no other voice. However that may be, denominations that themselves “go rogue” or no longer meet the need of a particular local church cannot stop a group of members from leaving and organizing under a different banner using their own resources. While growth by fission is painful, it is not illegal.

THE “NOT RELIGIOUS ENOUGH” TEST OF THE 9TH CIRCUIT

The Ministerial Exception of the First Amendment, the doctrine that employment laws do not apply to church employment decisions because such decisions involve ecclesiastical decisions shielded from judicial or legislative regulation, only applies to church employees that have a religious function. The history of that limitation on the doctrine, and whether it is actually a limitation consistent with the First Amendment idea of a constitutional level wall between government power and church dominion, is not the focus of this report. Rather, the manner by which the doctrine is applied is once again the question. Generally, the latest statement of the rule and its application is the totality-of-the-circumstances test articulated by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012). The problem with this test is that the totality to be weighed must be weighed subjectively.

In Biel v St. James School, Slip Op., ___ F3d ___ (9th Cir. 2018), the federal trial court dismissed the case because the Plaintiff was a 5th grade teacher in a Catholic elementary school that, at the least, taught religion thirty minutes a day in addition to teaching secular subjects and interwove Catholic religious teachings into other lessons. The Plaintiff alleged her annual contract after one year of service was not renewed in violation of the Americans with Disabilities Act because the Plaintiff anticipated chemotherapy to address breast cancer. The 9th Circuit reversed the trial court because it determined the Plaintiff was insufficiently religious to be found to be ministerial to trigger the doctrine and stated:

Biel, by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.

The 9th Circuit held that being required to teach Catholic religion thirty minutes a day was “no religious requirement for her position.” Likewise, the requirement, and the apparently mandatory training that went with it, that Catholic religious doctrine be incorporated in other lessons was “no religious requirement for her position.”

It seems rather odd that the 9th Circuit wants to be the leader in curtailing the scope of religious freedom protected by the First Amendment. The “totality” test of Hosanna-Tabor is not a scale upon which to weigh the amount of religion found in an employment relationship but rather based on the “totality” it is a determination whether there is an ecclesiastical component in the employment relationship. If there is an ecclesiastical component, the First Amendment is triggered. Once triggered, the First Amendment should not be any more vulnerable to subjective interpretation than any other constitutional prohibition. Only someone that has never been inside a church elementary school, of any denomination, could possibly fail to see the ecclesiastical component of the employment.

MANDATORY CHURCH MEDIATIONS

While placing a church under external supervision is a rare exercise in judicial power, it is not unheard of. We have reported on imposition of Special Masters, especially to determine membership or supervise elections. Mediators and Special Masters are not always different species. Also, mediators sometimes do not use shuttle diplomacy between striving factions but rather impose procedures, as do sometimes Special Masters, so that the resolution process may advance. If a church split is bad enough, and cannot be resolved merely by reviewing organizational documents, then a mediator or Special Master may be appointed.

In Eskridge v Peacock, Slip Op. (Miss. App. 2018), after the death of a pastor, two striving factions emerged each attempting to appoint the next pastor. There appeared to also be a fracture in recognized church leadership that made congregational rule either a stalemate or problematic. To resolve the impasse, the trial court appointed a mediator with instructions to conduct a congregational election. The mediator appointed was the denominational authority to which the church appeared to belong. Indeed, the court had to take testimony to confirm the church was part of the denomination appointed to mediate. A new pastor was elected under the supervision of the mediator but the losing faction appealed. The appellate court held that appointment of a mediator to supervise the congregational vote and ordering enforcement of the result, but not otherwise dictating the choice of pastor, did not entangle the trial court in ecclesiastical matters so the trial court was affirmed.

Churches may wish to contemplate in their bylaws mandating the appointment of an identified mediator in to be used in the event of court action. Possible mediators could include denominational authority, bible college faculty, or a particular accounting or lawfirm. Indeed, the language of the appointment could also include mandatory pre-litigation requirements that such a process be undertaken. The language should also specify the powers of the mediator or Special Master. A funding mechanism should also be spelled out. Demanding the challenger pay half or all of the cost may keep out all but serious challengers.