It took the Texas courts substantial effort to work through to find the edges between Texas tort law and the Ecclesiastical Abstention Doctrine. The legal culture of Texas, that there should be a remedy for every wrong and that everyone should have access to the Texas courts, is strongly engrained. Fitting the edges of that absolute to the edges of the Ecclesiastical Abstention Doctrine was difficult both legally and culturally. Other states have had similar angst.
In July 2021, we reported on the seemingly terminal disposition of the issue by the Texas Supreme Court in In Re Diocese of Lubbock (II), 624 SW3d 506 (Tex. 2021), cert. denied, 142 S. Ct. 434 (2021). The Texas Supreme Court invoked the Ecclesiastical Abstention Doctrine and ordered the case dismissed on jurisdictional grounds. Essentially, the rule that evolved was “[b]ecause courts are prohibited from risking judicial entanglement with ecclesiastical matters, if the substance and nature of the plaintiff’s claims are inextricably intertwined with matters of doctrine or church governance, then the case must be dismissed.” (quoting the case reported on in this article, at 11).
In Heras v Diocese of Corpus Christi, Slip Op. (Tex. App. 13th, Corpus Christi 2022), the dismissal on jurisdictional grounds of the Plaintiffs’ defamation tort action was held in abeyance on appeal until the Texas Supreme Court ruled as noted in July and summarized above. The appeal was reactivated and the trial court’s dismissal was affirmed. The appellate court began their analysis with a review of the holdings in Our Lady of Guadalupe Sch. v Morrissey-Berru, 140 S.Ct. 2049 (2020) and Hosanna-Tabor Evangelical Lutheran Church & Sch. v E.E.O.C., 565 U.S. 171 (2012). The appellate court held “[h]ere, appellants impermissibly seek to impose liability on appellees for compliance with an internal church instruction of openness and transparency.” Compliance with the “internal church instruction” by investigation and public disclosure was not within the jurisdiction of the Texas courts to address.
Few churches use arbitration clauses in membership agreements, or even have formal membership agreements. In the private business sector, an arbitration agreement remains in effect in perpetuity regarding claims arising during the tenure of the contract between the parties. Events after the termination or expiration of the contract would not be subject to most arbitration provisions in most contracts. Efforts to bootstrap an arbitration clause to events arising after contract termination are generally unsuccessful because the agreement to arbitrate terminated with the contract.
In Bixler v Superior Court, Slip Op. (Cal. App. 2022), the church Defendants moved for an order compelling arbitration of the Plaintiff’s court claims. The trial court refused to order arbitration because the claims allegedly arose after the Plaintiffs terminated their membership in the church. The plaintiffs claimed that the church engaged in stalking and other acts of defamation and vandalism to terrorize the Plaintiffs. The Plaintiffs alleged the church was attempting to silence the Plaintiffs to end their claims of sexual misconduct by other members. The appellate court affirmed and held that the Constitutional right of freedom of religion encompassed the right to leave a religion and otherwise extinguish church membership. Once membership was extinguished, the contract for religious services was terminated. The arbitration clause did not survive the termination of the contract. Further, the arbitration clause while potentially enforceable in perpetuity as to events during the membership of the members, was not enforceable as to events after termination of the contract by termination of the church membership. The case was remanded for further proceedings in court.
Churches may wish to use arbitration agreements with their own service providers or with persons to whom they provide services, such as day care, schools and other parachurch activities. But, events arising after the termination of the relationship will not be subject to the arbitration provision.
Repeatedly in these reports we have seen that defamation claims are so difficult and expensive to pursue that they are only a marginal church litigation threat. Indeed, in these reports we have characterized defamation law as a fortress that few if any claims will ever breach. Nevertheless, for reasons political and economic, defamation claims are sometimes filed, announced to the public and then forgotten, often without being served on the opponent.
In de Laire v Voris, Order (D. NH. 2021), the United States District Court for New Hampshire was the scene of a defamation claim brought by a bishop against an internet news media company known as the Church Militant (churchmilitant.com). The bishop apparently imposed “sanctions” on a parachurch organization during a doctrinal dispute. The Church Militant not only reported on the sanctions dispute, but reported the bishop was the subject of complaints about the bishop’s canonical competence and other matters. In response to the bishop’s defamation claims, the Church Militant issued a subpoena to the diocese, a non-party to the case, for documents. The non-party diocese objected to the requests in the subpoena. The trial court ultimately refused to enforce the subpoena because negotiations between the diocese and the Church Militant left the requests unclear to the Court. Nevertheless, the federal trial court noted that that defamation claims in general, and therefore a related subpoena, do not automatically require inquiry into ecclesiastical matters. Therefore, the objection of the diocese invoking the Ecclesiastical Abstention Doctrine of the First Amendment was inapplicable and in order to reassert it the Court instructed the parties to specify its applicability to the particular documents sought.
It is hard to understand why any church leader would think that a defamation lawsuit was worthwhile when weighed against unintended consequences like court discovery. Indeed, in the reported case, the Court assumed in its Order that the diocese and the Church Militant through counsel would negotiate further on the discovery requests made by subpoena. While “revelations” in discovery seem unlikely, the cost of responding is not an expense to which most churches are accustomed. Litigation also seems to be way a uniquely good way to perpetuate adverse news media coverage of an issue that might otherwise be ignored by the public in short order.
Clergy accused of molestation or child sexual abuse may be subject to criminal prosecution, civil lawsuits, and church disciplinary actions. In the latter category, the church, all of them, had to face the grim reality that failure to publicly reveal a finding of credibility in such an investigation will no longer be tolerated by church members, especially those otherwise loyal to the offering basket. The church found that the instinctive response of a church to rehabilitate, forgive, and to reinstate was no longer viable for clergy. The church came to this realization late because the church did not soon enough see the need to treat clergy with seemingly less compassion than laity.
In Foley v McElroy, Slip. Op. (Cal. App. 2021) the state appellate court affirmed dismissal of the Plaintiff’s defamation claim by the trial court. The Plaintiff sued because the church listed Plaintiff as “”credibly accused” of child molestation.” The church disclosed Plaintiff based on two allegations even after a church canonical trial as to one of the allegations “found him “not guilty.”” The appellate court noted by analogy that “[a] basic tenet of American criminal justice is that a not guilty verdict is not a determination of factual innocence.” To make a defamation claim, the Court held the Plaintiff would have to prove actual innocence and not merely that in a prior adjudication the “prosecution” did not make their case. In any event, only one prior allegation was adjudicated and not the other. Therefore, the Plaintiff failed to state a claim for defamation under California law.
While the criminal justice system has the nearly impossible task of determining the truth and punishing the guilty, the church should not undertake such efforts for clergy. The church that engages in such tasks will find itself not only ill-equipped but accused of aiding and abetting. The accusation will not come in the criminal justice system, except in rare cases, but rather in the court of public opinion. The church will find itself even less well equipped to defend itself in the court of public opinion. Indeed, the church will seem to have lost its way and to have abandoned its true mission. Meanwhile, clergy defamation claims are rarely tenable and less often successful because the claims cannot bypass the fortress defenses.