The ongoing tension between federal civil rights employment statutes, the Ministerial Exception and the Ecclesiastical Abstention Doctrine has not ended even while greatly reduced due to recent United States Supreme Court decisions. “The ministerial exception bars adjudicating employment disputes “involving those holding certain important positions with churches and other religious institutions.”” Our Lady of Guadalupe Sch. v Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 US 171, 194-95 (2012).
In Trotter v United Lutheran Seminary, Memorandum Opinion (E. D. Penn. 2021), the federal trial court overruled motions for summary judgment (which is probably the last step before trial in the case). The Plaintiffs alleged they were victims of retaliation and hostile work environment discrimination. The Plaintiffs held positions titled: Vice President for Advancement and Vice President for Student Vocation and Formation. The trial court held that on the facts presented the Plaintiffs did not teach religion or otherwise carry out the duties of ministers. One of the Plaintiffs was, indeed, an ordained minister. The trial court held that ordination in isolation did not trigger the Ministerial Exception.
Parachurch officers may perform duties sufficiently secular, and not participate in duties that are sufficiently or inherently ministerial, that federal civil rights employment claims remain viable. The record that can be presented to a court may determine the sufficiency of either. Such a record must be carefully developed. Development of such a record should begin earlier than at the time of a claim or lawsuit.
As we have reported, the battlefield regarding First Amendment religious rights is expanding beyond traditional church organizations to parachurch organizations. Classification of parachurch organizations is difficult in secular eyes because the mission of the parachurch organization may seem secular, i.e., homeless shelters, food pantries, student organizations, etc. Secular ears seem to hear most acutely in places where free speech was once thought to roam freely such as universities. As the opinion reported here quoted, “a religiously affiliated entity is one whose mission is marked by clear or obvious religious characteristics.” Generally,
In Intervarsity Christian Fellowship v Wayne State University, Order and Order Granting Plaintiff’s Motion for Partial Summary Judgment, etc., (ED Mich., SD, 2021), the federal district court in an 83 page opinion considered whether Wayne State violated the First Amendment by rejecting the registration of the Plaintiff as a campus organization. The reason given by Wayne State was that the Plaintiff violated the university “non-discrimination policy” by “requiring that its faith leaders profess to be faithful.” The Plaintiff carried out its mission by engaging student leaders. The student leaders were provided training and required to “undergo an apprenticeship” to become qualified to “provide religious teaching and spiritual guidance to other members.” The District Court held that the Plaintiff as a parachurch organization had the “deeply ingrained right of religious organizations to select their leaders and messengers.” The District Court also noted that the university ignored similar qualifications for leadership in secular, political and other religious organizations. The religious discrimination by Wayne State precluded the plaintiff’s free use of campus meeting rooms and other campus facilities.
The decision reported is interlocutory and partial. The court may make other decisions. The lesson for parachurch organizations interacting with secular forums is that freedom is not free and must be earned through some level of militancy. Wayne State stopped viewing a 75 year old parachurch organization as part of its diversity effort while including other secular, political and religious organizations even though all of them required their student leaders to be adherents to beliefs identified in the governance documents of the organization. Others will do likewise. If discussion does not lead to an accommodation or understanding, then litigation may be required.
Churches and their immediate offspring for the most part won their freedom from government control of their employment relationships. Our Lady of Guadalupe School v Morrissey-Berru, ___ US ___, 140 S. Ct. 2049, 207 L. Ed. 2d 870 (2020) laid to rest the “confusion” that certain courts seemed to have about the scope of the Ministerial Exception. Basically, faculty at church schools will rarely be considered outside of the scope of the Ministerial Exception. However, religious non-profit organizations are now the targets of those that believe that religious beliefs must be abandoned as a lesser civil right deserving of less protection.
In Woods v Seattle’s Union Gospel Mission, Slip Op. (Wash. En Banc, 2021), the parachurch organization focused on the needs of the homeless. As part of that outreach, the organization offered “legal aid” services. Plaintiff signed a statement of faith as a law school intern and then later sought employment when a staff attorney position opened. However, Plaintiff alleged he was not hired because he disclosed he was in a same sex relationship. The State of Washington’s employment discrimination statute exempted religious nonprofit organizations from the definition of “employer.” However, the clarity of the statutory language, though it was not held unconstitutional on its face, was not enough to decide whether the statute applied to the Plaintiff. The appellate court reversed and remanded the case for a determination whether the Ministerial Exception applied to the position of “legal aid” lawyer in a religious nonprofit providing services to the homeless.
Parachurch organizations may have to withdraw from “secular” service provision and abolish those employment relationships, at least in some states, to avoid being forced to accommodate employee actions that are contrary to a morals clause or other similar government or court imposed employment policy. Until religious beliefs are respected as constitutionally protected on an equal level with other constitutional rights, there will be jurists that will demand second-class status for religious believers. The alternative would be for parachurch organizations to place at risk their donor base and their religious beliefs or messages to comply.
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.