In decades past, denominational doctrines often seemed established, immutable, and immoral to oppose. Denominational doctrines seem to be challenged, and in some cases abandoned or revised, in growing numbers. Whether in the distant future these changes will be viewed as aberrational or merely a form of maturation remains for others to determine. Opposing denominational doctrines in court has always faced the all but insurmountable barriers of the First Amendment: the Ecclesiastical Abstention Doctrine (doctrine), the Church Autonomy Doctrine (governance) and the Ministerial Exception (“ministry” employment).
In Payne-Elliott v Roman Catholic Archdiocese of Indianapolis, Inc., Slip Op. (Ind. 2022), the Supreme Court of Indiana affirmed the trial court’s dismissal of the case. The Court concluded the plaintiff pled himself out of court by pleading facts that established the Church Autonomy Doctrine defense. The opinion reported the Plaintiff’s same sex marriage led to two different results. The Plaintiff’s spouse was an elementary school teacher at a Catholic elementary school. The elementary school refused to terminate the spouse. The archdiocese removed the school from the denomination. The archdiocese ordered the Catholic high school employing the Plaintiff to terminate Plaintiff and they did so. Apparently, the high school entered a financial settlement with the Plaintiff. However, the case continued against the archdiocese. The Supreme Court of Indiana set forth the elements of the Church Autonomy Doctrine affirmative defense as prohibiting a court from penalizing via tort law a communication among church officials on a matter of internal church policy (i.e., governance) that does not culminate in a criminal act. Because the Plaintiff pled that the Catholic high school was commanded by the denomination to terminate Plaintiff due to Catholic doctrine, the Church Autonomy Doctrine elements were held satisfied resulting in dismissal.
While the legal outcome of the reported case was not surprising, we have reported many similar decisions and few exceptions, the reported case was startling because of its “Birdseye view” of denominational doctrinal slippage. A Catholic school stopped being a Catholic school. Another Catholic school paid a settlement to avoid further litigation. Only the denomination continued until the case was concluded. Only future generations of church members will be able to judge whether choices like these were reached following immutable doctrine or reflecting changing doctrine.
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.
The ongoing argument that church school teachers, staff, and administrators are not “ministers” and that employment decisions by churches regarding them are not shielded by the Ecclesiastical Abstention Doctrine or its subsidiary the Ministerial Exception is not merely a matter of opinion. It is, or should be, a matter of factual inquiry based on the record the parties have made. The church and school governing documents, the employment contracts, if any, and the employment handbooks generally will decide the issue because those documents generally existed prior to the dispute, were ratified by the employee upon employment, or ratified because the employee remained employed after amended documents were adopted.
In Zaleuke v Archdiocese of St. Louis, Memorandum and Order (ED Mo. ED, 2021) the federal trial court granted summary judgment to the church. The Plaintiff resigned from the position of elementary church school principal when Plaintiff learned her contract would not be renewed for a third year. The Plaintiff sued alleging sex discrimination. The trial court’s opinion recited the church governing documents, employment contract, and other documents in detail. For example, the employment application required Plaintiff to answer certain questions described as: “(1) “describe your belief in God and your relationship with Jesus Christ”; (2) “describe your relationship to and involvement in the Catholic Church in general and your parish in particular”; (3) “define the unique mission of Catholic schools”; (4) “describe … the elements of a school’s Catholic identity”; (5) “describe your background in religious education” and “[h]ow this contribute[s] to your work as a Principal/administrator”; and (6) “describe the role for [a r]eligious leader of the school community.”” The employment contract expressly stated the position was intended to further the mission of the church. A “mission statement” to which the employee was required to adhere was much like a secular morals clause. The position also required meetings with religious personnel of the church and ongoing religious education. The trial court held that the record demonstrated the Plaintiff’s position was required to perform “important religious functions,” “religious instruction,” church mission participation, and academic requirements directly related to “elucidating or teaching the tenets of the faith.”
Churches that run schools should grab this court opinion and make sure their own documents serve as well in documenting the true nature of the position. The goal is not merely the elimination of secular court employment case intrusion but obtaining the clear commitment of church school employees at every level.
Church and parachurch employers, especially church schools, struggle with whether federal discrimination statutes govern their employment decisions. The First Amendment’s clear language, “shall make no law respecting an establishment of religion,” is constantly in doubt by some jurists. To them, sweeping freedom cannot possibly be the intent of the draftsman.
In Billard v Charlotte Catholic High School, Order (WD NC, 2021), the Plaintiff started out as a full-time drama teacher and performed as such for over ten years. During that time the Plaintiff’s heterosexual marriage to a woman ended in divorce. During that same time, the Plaintiff began a relationship with a male. The Plaintiff retired from full time teaching but continued as a substitute teacher for two years. The Plaintiff was not required to sign an employment contract as a substitute teacher. During that period, the Plaintiff announced on Facebook engagement to a male. Thereafter, Plaintiff was not recalled to substitute. Upon inquiring about why no further substitute teaching assignments were forthcoming, Plaintiff was told by an Assistant Principal that Plaintiff could no longer act as a substitute teacher because of the Facebook announcement of same sex engagement. The federal trial court granted summary judgment to Plaintiff on a Title VII discrimination claim. Because Plaintiff was a teacher of a secular subject, because the school did not require religious training or duties of such teachers, and because the school did not require the teachers to ascribe to any particular denomination, the federal trial court held the Ministerial Exception did not apply. The federal trial court held “as of now, religious employers have strong legal protections for hiring and firing employees who have a role in promoting their religion’s message if the employment decision is religiously motivated.” The Plaintiff, however, had no such duties and the church school was not shielded from Title VII duties or liabilities.
Church schools that intend for their employees to comply with church doctrine should require it in employment contracts. Those contracts should contain morals clauses. Those same rules should appear in employee handbooks. Both should be drafted by lawyer. The employee should sign a receipt for the handbook. The absence of both the handbook and the contract in the reported case probably contributed to the outcome. Another problem arises when a church school cannot make up its mind about whether it is, or is not, denominational, non-denominational, or secular. In the reported case, the secular subject teachers may have been separated from religious instruction or observance, which seems anachronistic in a church school.