Setting aside for this report the idea that revealing a member’s sin from the pulpit might be insensitive or even cruel, the question presented is whether it is actionable in a lawsuit. For non-church entities like businesses and government, unless there is a duty to speak, and even if truth was a valid defense, the conduct might still be sufficiently outrageous to constitute a Tort of Outrage claim, in those states that have such claims.
In Hullibarger v Archdiocese of Detroit, Slip Op. (Mich. App. 2021) the Plaintiff’s child committed suicide. (The opinion does not disclose whether the child was an adult or a minor.) The family did not disclose this outside of the family and a few close friends. Somehow, the priest learned of it and at the funeral service revealed it during the homily. The priest proceeded to “preach about suicide as a grave sin and specifically how it endangered the immortal soul of the plaintiff’s son.” The Plaintiff complained to the Archbishop but the Archbishop would not grant an audience. The Plaintiff sued alleging infliction of emotional distress, misrepresentation, invasion of privacy and claims against the church for negligent supervision. The trial court dismissed the case under the Ecclesiastical Abstention Doctrine. The appellate court affirmed.
Federal employment law generally precludes termination or other adverse employment actions based on discrimination. It also provides a remedy in damages for hostile actions based on the same discrimination. However, applying these laws to the internal workings of churches not only implicates church management decisions, but even the way some denominations might interpret what constitutes discrimination. In some church traditions, otherwise lawful and protected sexual choice and conduct is both banned and declared to be sin. The degree of church discipline imposed to an outsider might appear to be a hostile work environment.
In Demkovich v St Andrew Parish, Slip Op. (7th Cir. 2021), the United States Court of Appeals for the 7th Circuit heard this case for a second time. In its 2020 opinion, a divided panel of the Court affirmed the district court’s decision to deny dismissal of the hostile work environment claim and reversed the dismissal of the sex discrimination claims. 973 F3d 718 (7th Cir. 2020). Hearing the case en banc, the 2020 opinion was vacated. Also, the United States Supreme Court extended its prior holdings barring federal employment law claims against churches by ministers. Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049, 2060 (2020) (“Under this rule, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.”). The Plaintiff was the music director, choir director and organist. He was a gay man that announced his intent to “marry his partner while still employed by the church.” The Plaintiff alleged he suffered from diabetes, metabolic syndrome, and weight issues. The Plaintiff claimed that all of these events drew negative comments from the parish priest and ultimately employment termination. The 7th Circuit ordered the trial court to dismiss all claims.
Our original advice about the law in this area remains: church employers can generally avoid these issues by acting definitely in employment matters. Hand wringing, “tough love,” and long deliberations invite second-guessing or other allegations. Fat Shaming in the Cloister, September 5, 2020. Employees that violate the established moral precepts of the denomination or church generally cannot hold ministry positions.
Once completely shrouded behind church tradition if not actual walls, the results of church investigations into their own clergy are now routinely posted on the internet. Some of the investigations must be understood in the context of Canon Law and not just the language used in the disclosures on the internet.
The case of In Re Diocese of Lubbock, Slip Op. (Tex. 2021) reviewed the posting of lists of clergy the church alleged from its own internal investigation were credibly accused of sexual abuse with a “minor.” However, in the denomination in question, Canon Law held the word “minor” included vulnerable adults, too. The Plaintiff alleged he was listed even though the sexual misconduct of which he was accused did not involve a person underage but rather an allegedly “vulnerable adult,” in this instance mentally ill or incapacitated. The Plaintiff complained he was defamed by the failure to make this distinction clear. Further, the Plaintiff claimed posting the list on the internet was a publication that took the alleged defamation outside of the protection of the Ecclesiastical Abstention Doctrine of the First Amendment. The Texas Supreme Court explicitly held that any church investigation into clergy was inherently and necessarily ecclesiastical and that publication on the internet did not obviate the doctrine. The Court held that Canon Law terminology, the conduct and publication of the investigation under commands from the church hierarchy, and plaintiff’s status as clergy made the matter inextricable from ecclesiastical inquires that could not be made by a Court. The trial court was ordered to dismiss the case.
The Court, and no court has done so, did not require that due process be provided to the accused including the right to be heard by church leadership. Likewise, the quality of the investigation, or proof thereof, was not required. The larger denominations have employed retired law enforcement officers and experienced lawyers to conduct and review the internal investigations. The high-risk action was publishing the results. While no churches would accept that risk in prior generations, churches in this generation believe they simply have no choice but to achieve transparency.
While church disciplinary proceedings will generally be beyond judicial review because of the Ecclesiastical Abstention Doctrine based on the First Amendment, the bright line of yesteryear has blurred. The point at which the conduct of a church disciplinary hearing becomes a tort, a wrongful act, because of its harshness may be elusive to determine.
In Williams v Kingdom Hall of Jehovah’s Witnesses, 2021 UT 18 (Utah 2021), a church disciplinary hearing was held to determine whether the member brought before the hearing was guilty of “porneia.” The member brought to hearing was fourteen years of age at the time she may have engaged in a sexual encounter with another member. The age of the other member was not in the opinion. However, there was an audio recording of the sexual encounter. Who recorded the sexual event was not disclosed. The Court characterized the sexual encounter as “rape” but did not explain if that was because of her age or because the sexual encounter was somehow violent. The hearing board interrogated the member and then played the recording stopping it frequently to ask questions of the member. The member “voluntarily” attended the hearing with her parents. The plaintiff member alleged the hearing was a traumatic intentional infliction of emotional distress and she sued. The trial court dismissed the case but the Utah Supreme Court reversed, ordering the trial court to develop standards based on “our history, tradition, and precedent to identify core Establishment Clause principles that may be applied to the facts of the case.” The Supreme Court of Utah did not hold that the Ecclesiastical Abstention Doctrine would not apply but that factual and legal inquiry was required to determine if it did under the “standard” quoted.
In many states, the hearing board might have been subject to prosecution for failing to report child sexual abuse of a minor of this age. Indeed, if the audio recording was rather a video recording, child pornography charges might have been appropriate. While there may be some religious orders that feel compelled by their beliefs to do so, a church that conducts a church disciplinary hearing regarding a minor, even with parental consent, may be treading near or into tort territory. Church leaders that conduct such hearings in many states risk a lot more than money if the child abuse mandatory reporting statute does not contain a safe harbor.