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.
In determining whether an employee can bring an employment discrimination claim against a parachurch organization like a religious fine arts college, the fundamental question before a court is whether the employee is barred from such a claim by the Ministerial Exception doctrine. The Ministerial Exception doctrine at bed rock prevents a court from hearing an employment claim from “ministers” that represent in some way the faith during their employment. The Ministerial Exception was recognized by the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 565 US 171 (2012).
In Deweese-Boyd v Gordon College, Slip Op. (Mass. 2020), the trial court granted summary judgment to the liberal arts college but the appellate court reversed. Plaintiff was a faculty member that sought promotion to full professor. The promotion was denied for the stated reason that Plaintiff did not publish sufficiently. Plaintiff claimed the promotion was denied because the Plaintiff was an outspoken critic of the school’s policies regarding homosexuality and sex outside of marriage. The Plaintiff was a teacher in the social work program. The liberal arts college in its organizational document was committed to both religious instruction and secular instruction. However, the secular instruction was to be “integrally Christian.” The school’s mission statement required undergraduate students “have a profession of Christian faith.” The Faculty Handbook stated the “foundations of Gordon’s education philosophy are Christian doctrine” the source of which was “God’s eternal Word.” In order to apply for work at the college, the Plaintiff had to sign a Memorandum of Understanding in which they agreed to “abide by” the “Statement of Life and Conduct at Gordon College.” The Social Work Department Handbook like the Student Handbook disclosed the program was “informed by a Christian worldview.” Plaintiff alleged she never held herself out as a minister, had no religious duties, did not promote “evangelical Christianity,” was not authorized to speak authoritatively as to church doctrine, and performed no religious functions. The appellate court granted judgment against the college on the Ministerial Exception. On remand, the college would not be allowed to present the Ministerial Exception as a defense. On remand, the trial court will be forced to decide whether the Plaintiff abided by Memorandum of Understanding in which Plaintiff agreed to “abide by” the “Statement of Life and Conduct at Gordon College.” There may be a “morals clause” lurking therein that Plaintiff has yet to address, but if so, the clause was not in the opinion. Also, on remand, the question of sufficiency of publication may yet be litigated.
To encompass a teacher of a secular subject in the religious nature of the religious school in some states will require an explicit undertaking by the teacher signed at hiring to refrain from advocacy or teaching contrary to religious doctrine espoused by the school, violation of which is a ground for termination. Such clauses should be drafted by counsel and not by ministers or academics.
While churches and para-church organizations seem to go through life cycles, some do die. Church death has many causes including changing demographics, changing worship modalities, location, and many others which sometimes may include a fundamental flaw in the reason for their establishment. Some churches were founded on what seemed like a prophetically driven vision that in the passage of time was rendered obsolete by the march of history.
In Ferrel v Israelite House of David, Slip Op. (unpublished) (Mich. App. 2020), the defendant was founded in 1903 to “lead the faithful to the ‘ingathering’ of Israel” in the final days. The Defendant was converted to what today we might call a para-church organization in 1908 (then called a “voluntary religious organization”). In 1904, the Defendant created a “colony” in Australia but by 2010 all members located there had died. The “colony” property, however, was worth $50,000,000 after a century of inflation. The property was managed by accountants and lawyers. In 2012, one of the last US resident members and an officer of the Defendant, tasked the Plaintiff with re-establishing the colony. The Plaintiff began this work but eventually, with the permission of the leadership in the US, established a “way station” in Hawaii. The “way station” in Hawaii was to be a “resting place” between the colony in Australia and the headquarters in Michigan for use of the faithful as they returned from Australia to “repopulate the earth.” However, the Defendant accused the Plaintiff of lavish living in Hawaii using the Defendant’s money and property. The Defendant excommunicated the Plaintiff and recovered its property. A Settlement Agreement in 2013 between the Plaintiff and Defendant included a clause in which the Plaintiff “irrevocably relinquished” membership and resigned all offices. The officer of the Defendant that originally tasked Plaintiff with re-establishing the Australian “colony,” authorized establishment of the “way station” in Hawaii, then excommunicated Plaintiff, died. However, prior to her passing she appointed successors. The Plaintiff sued alleging that the appointed successors were mere interlopers and that the Plaintiff was the last true believer and should be reinstated as an officer or trustee. The Plaintiff alleged he faced the “specter of being deprived of salvation.” The trial court held the Ecclesiastical Abstention Doctrine precluded a determination by the Court whether the appointed successors were insincere. The trial court held the Plaintiff, excommunicated and having relinquished membership in the Settlement Agreement, had no standing to sue. The appellate court affirmed.
We have reported several cases of founding clergy that left no plan of succession, or had a bad plan, resulting in factionalism and lawsuits. While this odd para-church organization might not be much of an example to the average church, the succession plan should be if for no other reason than it held. Founding clergy that personally holds title to the church property has no valid succession plan if the succession is by someone that cannot overcome factionalism and hold the church together.
In our last report, the question of whether the federal statutory protections of private employer retirement plans applied to para-church organizations was answered with a clear ruling that the para-church organization qualified under the statutory “religious exemption.” Within days, the same para-church organization, albeit in a different state and therefore a different federal court jurisdiction, qualified under yet another statutory “religious exemption.”
In Boydston v Mercy Hospital Ardmore, Inc., Opinion and Order (WD Okla., 2020), the Sisters of Mercy were yet again determined to qualify under the statutory “religious exemption” found in the Civil Rights Act of 1964 (aka “Title VII”), 42 USC §§2000e et seq., and in the Oklahoma Anti-Discrimination Act (“OADA”), 25 OS §§1101, et seq. The “religious discrimination and retaliation” claim was dismissed when the Court granted summary judgment on that basis. This Court’s analysis of the religious nature of the Defendant, possibly because of a more detailed factual record due to discovery limited to the religious exemption facts, was more detailed than the 8th Circuit case reported herein in the last post. The Court considered governance documents like bylaws and constitution, declarations by the denominational authority that the Defendant and its religious sponsor were religious entities, and sectarian religious symbols displayed in the medical facility. The Court also concluded that scientific and medical services provided for profit did not necessarily indicate a lack of religious control or motivation. The Court considered the number of nuns serving as members of the board of directors.
The less para-church organizations, regardless of function, are visibly affiliated with their religious roots, the more likely the same result will not be reached. The religious heritage of the para-church organization should be preserved to maintain “religious exemption” immunities no matter that the organization also has a secular identity. A sham will be discovered and should not be attempted.