The Ministerial Exception Doctrine arose from the Ecclesiastical Abstention Doctrine of the First Amendment, in part, and from the statutory exception found in some federal employment laws that exempt religious organizations from the scope of such statutes. It has been refined most recently by the United States Supreme Court in Our Lady of Guadalupe School v. Morrissey-Berru, 591 US ___ (2020). The general import of the rule is that churches and parachurch organizations may select their own ministers without interference by regulators or courts. The question that then followed, as we have explored in many reports, is whether the employee was sufficiently “ministerial.”
In Simon v Saint Dominic Academy, Opinion, (D. NJ 2021), the federal trial court dismissed the case brought by Plaintiff, a “Chairperson of the Religious Department and Campus Minister.” Based on our prior reports that conclusion seemed obvious enough. What was less obvious was whether the Plaintiff’s claim, that the written employment contract was breached, could survive the Ministerial Exception. The federal trial court held that to enforce the written employment contract as to grounds for termination would be prohibited by the Ministerial Exception just as would federal statutory employment claims. While a compensation or similar covenant might have been enforceable under Neutral Principles of Law, the termination claim could not be.
While every case will turn on its own facts, financial contractual terms are most likely to be judged under Neutral Principles of Law and wrongful termination claims under the Ministerial Exception. Hopefully, for most church or parachurch employers, and their employees, this distinction is not too subtle to understand. Recognition of the existence of the distinction might forecast which claims to abandon or defend.
There is often no proof of knowledge by church employment supervisors that sexual misconduct occurred with a minor until long after the fact. One cause is that it is simply not reported to those supervisors at the time. Sometimes, inexplicably, that which is reported is some other tale that does not include any hint of a sexual event. However, sometimes it does become known to church employment supervisors.
In John Doe 122 v Marianist Province, Slip Op. (Mo. 2021), the Missouri Supreme Court reversed, in part, a summary judgment granted to the church. The claim sent back for further proceedings was a claim for intentional failure to supervise clergy. We previously reported on this case on January 29, 2020 regarding the Court of Appeals decision, which should now be considered superseded by this Supreme Court opinion. The Plaintiff’s proof of culpable knowledge by the church was presented by an apparently credible expert witness that personnel file entries contained euphemistic code words used at the time that, indeed, in code referenced inappropriate sexual behavior with minors. The trial court rejected such proof but the Missouri Supreme Court reversed and held it was for the trier of fact, probably a jury, to determine what weight to give the opinion.
While it is true that the standards of one era might differ from another, it is hard to imagine that clergy sexual misconduct could be so easily dismissed in any era by any church supervisory authority. However, it still seems to happen no matter how often legal counsellors decry it. Any church leader or clergy that becomes aware of sexual misconduct with a minor should consult legal counsel to determine if mandatory reporting is required. Such a consultation will likely not be free or quick unless the advice is to immediately report. Advice that indicates reporting is not required should be deliberate, careful, and thoroughly considered.
The United States Supreme Court decision in Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020) (Our Lady of Guadalupe), left open the possibility that a Christian parachurch organization might have employment relationships that are not subject to the Ecclesiastical Abstention Doctrine or the Ministerial Exception. A determination that such employment relationships exist in a parachurch organization brings, as to that particular employee, the applicability of state and possibly federal employment laws.
In DeWeese-Boyd v Gordon College, Slip Op. (Mass. 2021), the non-denominational Christian fine arts college failed to promote the Plaintiff to the academic rank of full Professor. The Plaintiff sued and alleged gender discrimination and retaliation for “vocal opposition to Gordon’s policies and practices regarding individuals who identify as lesbian, gay, bisexual, transgender, or queer (or questioning), and others (LGBTQ+ persons)…” The appellate Court affirmed the trial court’s decision that the Defendant was a religious institution even though it was not part of a denomination. But, the Court struggled with “the most difficult issue for us is how to evaluate her responsibility to integrate her Christian faith into her teaching and scholarship as a professor of social work.” The Court held that the “duty to integrate her teaching and Christian faith” imposed on her by her employer did not make her sufficiently ministerial to trigger the Ministerial Exception and held that she could pursue a state law claim for discrimination and retaliation. The Court was silent on how the trial court might determine whether the “integration” duty and the employer’s evaluation of Plaintiff’s compliance was subject to the Ecclesiastical Abstention Doctrine.
Because the Plaintiff’s claim was about a promotion, which might have been denied for any number of reasons and only the development of a trial record might make identification of the actual reasons definite, resolution might be determined by economics rather than any sort of righteous indignation. After all, Plaintiff was not fired so Ecclesiastical doctrine or beliefs might or might not have weighed much. Donors might not have been influenced either way. But, being neither beast nor foul, being as much secular as religious, might mean that in reality the Defendant was not sufficiently ecclesiastical to make its faculty ministerial. Fully ecclesiastical parachurch organizations typically do not seek accommodation with secular beliefs unless those secular beliefs are no long secular or no longer verboten.
In the first published decision of 2021 that meets our criteria for reporting, we are confronted with some familiar facts and some new ones. As the history of the last two decades has made clear, retaliation against whistleblowers by church leadership is often a path to escalating accusations and finally legal consequences possibly out of proportion to the fault of the church.
In Rehfield v Diocese of Joliet, Slip Op. (ILL., 2021), the Plaintiff was a church school principal. A parent allegedly sent threatening emails to a teacher that resulted in a report to the pastor and eventually law enforcement. The conduct was admonished but allegedly the parent escalated the communications that led to an arrest warrant. The principal was allegedly instructed by the church not to alert other parents about the conduct of the errant parent. However, when the photo of the parent was circulated to alert faculty and staff persons unknown leaked it to news media. The news media report induced other parents to be upset they were not likewise notified. The church terminated the employment of the principal but continued to pay her pursuant to her written employment contracts. The opinion did not indicate a reason for termination from the record before the Court. The plaintiff sued alleging a retaliatory discharge and violation of the Illinois Whistleblower Act. The trial court dismissed the case, the intermediate appellate court affirmed and the Supreme Court of Illinois affirmed. The retaliatory discharge claim was dismissed because the claim was only available to “at will” employees and not contract employees like Plaintiff. The Whistleblower Act case was dismissed because the claim was held barred by the Ministerial Exception of the Ecclesiastical Abstention Doctrine arising from the First Amendment. The Illinois Supreme Court relied on Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Comm’n, 565 U.S. 171 (2012) and Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___, 140 S. Ct. 2049 (2020), both reported herein, regarding the analysis of the issue of whether the principal was a ministerial employee. The Illinois Supreme Court held the principal was a ministerial employee because the evidentiary record below was uncontradicted.
Because the church reportedly paid out the employment contract of the principal, which may have resulted in full pay for a school year beyond the termination, the monetary damages claim would have been somewhat muted if the claim had been allowed to proceed. In any event, the more important issue is that whistleblower claims by employees classified as ministerial by the evidence in the case are likely barred. Certainly, because history has shown that schoolteachers may be held to be ministers, school principals seem more likely to be. As history has also shown, churches that strike down whistleblowers may face societal condemnation.