Category: church employment

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.

INTERNAL CHURCH DEFAMATION

Typically, as long as the dispute among church members about church matters stays within the congregation the words said will not be actionable defamation.  Courts are barred from considering doctrinal issues by the Ecclesiastical Abstention Doctrine inspired by the First Amendment.  Thus, in order to avoid doctrinal issues lurking in ill chosen words among church members, courts refuse to hear internal defamation claims.  After all, while accusing someone of “lying” might be defamatory, it might be doctrinal if the claim is that they are lying about Scriptures in order to mislead the flock.

In Lippard v Holleman, Slip Op. (NC App 2020), the North Carolina Court of Appeals had to render the first decision in that state about whether statements made between members in a church regarding a church dispute were actionable defamation.  The church pianist and the Minister of Music began a dispute over assignment of church service solos that escalated into an intractable conflict.  Several, if not numerous, sessions to achieve “reconciliation” were attempted to no avail.  Finally, the Senior Pastor recommended termination to the Board of Deacons.  Eventually, the Board of Deacons recommended termination to the Personnel Committee.  Eventually, the Personnel Committee recommended termination to the congregation.  However, the congregational vote did not produce votes exceeding three-quarters of the voting membership in favor of termination.  As a result, the pianist remained employed and the dispute wore on until finally the pianist resigned and sued the pastor and music minister for defamation.

Defamation is almost impossible to win, truth is a defense, and wrongdoers rarely have the resources to respond in damages.  Nevertheless, oral statements and written statements should be temperate and truthful.  Oral and written statements should remain among the church membership.  If the constitution and bylaws of a church require a laborious termination procedure like that set forth in the case reported, they should be amended.  Laborious termination procedures will prolong an internal dispute to the detriment of everyone.  Fair and reasonable severance, even overly generous severance, is better than laborious termination processes.  Laborious termination procedures turn the process into a popularity contest based on a prolonged internal political campaign.

“NOT THEOLOGICAL ENOUGH” EMPLOYMENT CLAIMS

The United States Supreme Court on or about May 11, 2020 heard argument in two cases appealed from the United States Court of Appeals from the 9th Circuit (the west coast states) in which two particular school teachers at church schools were held not to be sufficiently ministerial to be barred from making federal law based employment claims. The scope of the Ministerial Exception to employment law claims has been litigated since the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171 (2012). In that case, the Supreme Court held that the teacher in question was also a minister which triggered the Ministerial Exception and barred her claims.

In Gregory Tucker v Faith Bible Chapel, Order on Motion for Summary Judgment (D. Colo, 2020) the federal trial court converted a Motion to Dismiss to a Motion for Summary Judgment because the motion appended three documents, two of which were the employment contract and the teacher handbook. The employment contract appointed the Plaintiff as “Chaplain” in addition to duties as a science teacher. The Plaintiff was allowed to chose among three proposed titles for the new duty, among which was “Chaplain,” but chose “Director of Student Life.” The Plaintiff claimed that title sounded the least religious as the motive for selecting it. The teacher handbook required teaching from a “Christian worldview” but Plaintiff claimed the school did not define it or provide training in a required curriculum. The Plaintiff claimed that the lack of specificity in theological content, and the explicit prohibition of promoting a single “Christian perspective over another” meant that the position was not religious and therefore, not ministerial. The trial court overruled the Motion for Summary Judgment and the case will proceed to discovery, and possibly trial.

Church schools of non-denominational churches have difficulty in secular courts because the idea of the Bible as the sole source of religious perspective is not understood as “specific” but is pejoratively assumed to be amorphous. Church schools of non-denominational churches that do not substantively document their religious perspective will be deemed to be without one. In the age of the internet and “distance learning,” this seems especially difficult to the secular court to understand. Just as teachers in public schools are required to have “professional development” time, so too should teachers in church schools. The difference is the “development training” of a church school teacher should include a substantive and identifiable religious component. For a position like “Director of Student Life,” it should also include substantive religious counseling training. While the local church owning a church school may not have the resources to provide it all inhouse, there are numerous Bible colleges that would provide the resource.

MINISTERIAL EXCEPTION LIMITATIONS

The United States Supreme Court heard oral argument in Biel v St. James School, 911 F3d 603 (9th Cir. 2018) yesterday. We reported on Biel in December 2018 and again in 2019. The Plaintiff, now deceased, was a 5th grade teacher in a Catholic elementary school. In addition to teaching secular subjects, she taught religion. The Plaintiff was employed under annual contracts. When her contract was not renewed, she sued and alleged that non-renewal occurred because she had breast cancer. She alleged the non-renewal violated the Americans with Disabilities Act (“ADA”). The ADA exempts “religious entities” by allowing religious preferences in employment decisions. But, the Plaintiff argued that the exemption did not apply and that the Ministerial Exception did not apply.

The 9th Circuit agreed with both of the Plaintiff’s arguments. Most importantly, the 9th Circuit held that being required to teach Catholic religion to 5th graders was “no religious requirement for her position.” The mandatory training Plaintiff was given to be able to teach Catholic religion to 5th graders was likewise no religious requirement for the position.

The Supreme Court’s ruling can be expected in the fall.