Category: church employment

COST-OF-LITIGATION BURDENS

The First Amendment’s protection of church autonomy from government regulation is in federal courts implemented by balancing the need of society to regulate conduct against the need of the ecclesiastical need for independent church governance.  To that end, federal civil rights legislation usually contains an exception for religious entities and their employees.  Likewise, the First Amendment, and state constitution counterparts, limit exercise of governing power to secular matters.  To reach these legal conclusions, however, sometimes requires a court to require the parties in a lawsuit through discovery and their own investigations to create a factual record.  The cost of litigation resides mostly in the various pre-trial phases of a lawsuit, with discovery costs being the bulk of the costs.

In Tucker v Faith Bible Chapel, Slip Op. (10th Cir. 2022), the federal trial court had before it a high school teacher in a private church school that also served as a chaplain.  The teacher / chaplain developed a chapel service that the teacher called “a symposium” “on race and faith.”  Parental and student backlash may have led to the termination of Plaintiff from the duties of chaplain and a few weeks later termination from the teaching position.  The Plaintiff alleged the termination was based on discrimination illegal under federal and state law.  The Defendant moved to dismiss invoking the Ministerial Exception to the federal civil rights law.  The federal trial court ordered discovery conducted by the parties solely on the issue of whether Plaintiff’s claim was barred by the Ministerial Exception because Plaintiff held the title of “chaplain” and because he was a high school teacher in a private religious high school.  Upon the conclusion of discovery, the federal trial court overruled the Defendant’s motion for summary judgment based on the Ministerial Exception and held there was a question of fact for a jury to decide.  The United States Court of Appeals for the 10th Circuit, presented with an interlocutory appeal of the order overruling the motion for summary judgment, dismissed the appeal holding it did not have jurisdiction to hear an interlocutory appeal at this time in the case.

By treating the Ministerial Exception to the federal civil rights laws as an “affirmative defense,” a defense that must be factually proven and raised at trial, the cost of litigation must be endured in order to reach a ruling.  The 10th Circuit did not reach the issue of whether the proof placed in the record was sufficient to support or deny the Ministerial Exception.  The impact of the ruling will be that interlocutory appeals will be problematic if a federal trial court refuses to dismiss a case due to a question of fact about the Ministerial Exception affirmative defense.  The pragmatic impact will be that the cost of litigation through trial would become unavoidable.

PARACHURCH ORGANIZATION FIRST AMENDMENT PROTECTION

Rare concurring pronouncements by a minority of the Justices of the United States Supreme Court are not legally binding but may be educational.  The United States Supreme Court hears a mere handful of cases every year and denies certiorari in the rest.  Denials of certiorari are not usually accompanied by any explanation or opinion.  Though rare, sometimes there is a published dissent.  Rarer still, a filed and published concurrence to a denial of certiorari may be interesting enough to note.

In Seattle’s Union Gospel Mission v Woods, 592 US ___ (2022) (concurrence with denial of certiorari), Seattle’s Union was a parachurch organization that engaged in a number of threads of ministry to the poor.  One such thread was a legal aid service.  In order to minister through legal aid, the plaintiff had to hire a lawyer.  All employees, including any lawyer hired, had to agree to the employee handbook.  The handbook imposed a morality clause.  The lawyer applicant was a former summer intern and volunteer for Seattle’s Union.  The lawyer applied and disclosed that he was a bisexual in a same sex relationship.  The applicant could not provide a reference from a local pastor and was not a church member at the time of the application.  The ministry leader met with the lawyer applicant and explained the application could not be considered because of the morals clause in the handbook.  The lawyer submitted an application to “protest” the ministry’s morality clause and then filed suit.  The Washington state trial court dismissed the case based on the Washington anti-discrimination statute’s religious exemption.  The Washington Supreme Court reversed holding the statutory religious exemption violated the Washington state constitution.  The Washington Supreme Court also reversed for a factual finding by the trial court as to whether a lawyer in a ministry to the poor was a “minister” as contemplated by Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171, 189 (2012) and Our Lady of Guadalupe School v Morrissey-Berru, 591 US___ (2020).  Because the decision of the Supreme Court of Washington was interlocutory, and the trial court decision was not yet final, the United States Supreme Court would not accept the case.  The Justices’ concurrence with the denial noted the Washington state trial court had yet to address “whether applying state employment law to require the Mission to hire someone who is not a co-religionist would infringe the First Amendment.”

It can be assumed that the cost of the litigation has thus far been staggering and now must “start over” in the trial court.  The Mission would be well within its rights to simply abolish its legal aid ministry.  It might not clear the Mission of the charge of discrimination, and it might not prevent liability in a jurisdiction like the state of Washington, but it might stop the next case.  It is clear that many courts on the west coast simply no longer consider basic constitutional rights meaningful limits in their quest to suppress religious organizations and persons.  Even statutory exemptions for religious organizations enacted by the Washington legislature are to be set aside, it seems, in the quest of west coast courts for hegemony.

A COURT DECISION LEADING NOWHERE

We have repeatedly reported opinions of the United States Court of Appeals for the 9th Circuit that reveal a political agenda at work to suppress a legal one.  In 2019, in flagrant disregard of United States Supreme Court rulings to the contrary, see, Hosanna-Tabor Evangelical Lutheran Church & School v E.E.O.C., 565 US 171 (2012), the 9th Circuit continued holding that Catholic school teachers could still make federal employment law claims even though extra-ordinary dissents among their own ranks resulted.  See, Biel v St. James School, 911 F3d 603 (9th Cir. 2018).  The Supreme Court reversed the 9th Circuit.  Our Lady of Guadalupe School v Morrissey-Beru consolidated with St. James School v Biel, ___US___, 140 S. Ct. 2049 (2020).  The 9th Circuit uses various means to navigate past the First Amendment, the Ecclesiastical Abstention Doctrine, and the Ministerial Exception.

In Cedar Park Assembly of God v Kreidler, Order (WD Wash., 2022) the federal trial court ultimately allowed the Plaintiff’s challenge to state statutes imposing on church employers the duty to include abortion coverage in their medical coverage.  The 9th Circuit reversed a prior ruling of the federal trial that had swept aside a Free Exercise claim but affirmed that the church waived its Establishment Clause claim for failing to brief it in the church’s opening brief before the 9th Circuit.  Sadly, the error of the federal trial court pushed the church to the 9th Circuit and the lawyer for the church either made a drafting error or did not think that issue was before the 9th Circuit.  In any event, treating constitutional level jurisdictional challenges as waivable in an interlocutory appeal, particularly in light of a remand, seems typical of the 9th Circuit.  Also, ignoring the authority of the United States Supreme Court is another hallmark.  This issue was decided in Burwell v Hobby Lobby Stores, Inc., 573 US 682 (2014).  Amazingly, the Burwell opinion is not discussed in the Cedar Park Order by the federal trial court.  In any event, the Free Exercise claim, which is an Establishment Clause claim, are simply some of the names given to First Amendment claims.  The 9th Circuit seems to treat the language of the First Amendment (“Congress shall make no law…”) as subservient to its political agenda.

CLAIMS REGARDING OTHER EMPLOYMENT BY CLERGY

While it is abundantly clear that courts will not intervene in nearly all claims regarding employment of clergy, the question arises about whether the clergyman (or clergywoman) that loses employment with a secular employer because of the loss of clergy credentials.  In that instance, is there a viable claim?

In Iwuchukwu v Archdiocese for the Military, Memorandum Opinion (D. DC, 2022), the Plaintiff was a clergyman but employed by a federal agency and terminated.  The employment required the Plaintiff, serving as a chaplain, to have the credentials of clergy without which the employment was summarily terminated.  The federal agency was not named as a Defendant.  The denomination claimed it revoked the credentials based on an unresolved allegation of sexual misconduct at a prior employment a decade earlier.  The Plaintiff submitted a polygraph examination report that seemed to confirm the Plaintiff’s denial of the allegation.  Also, some years before this case, the Plaintiff filed a complaint against the federal agency with the Equal Employment Opportunity Commission (“EEOC”) alleging a hostile work environment.  Plaintiff claimed revocation of his clergy credentials was in retaliation and had nothing to do with the clergy credentials.  In effect, Plaintiff was arguing his claims were reviewable under Neutral Principles of Law.  The federal trial court dismissed the case as barred by the Ecclesiastical Abstention Doctrine because religious organizations could unilaterally decide who would speak for them as clergy.  The court also noted the federal employment discrimination statute exempted religious organization employers.

Because many clergymen and clergywomen work in alternative employments with parachurch organizations or even secular entities, the facts presented in the reported case may be less unique than might be expected.  For example, many hospitals have chaplains.  Clergy that are accused of sexual misconduct are not well served by relying on denominations or parachurch organizations to clear them.  Innocent accused clergy have no choice but to immediately seek a judicial declaration of innocence if reputable counsel believes there is a reasonable chance for a favorable outcome, or expect the loss of their former career.