Category: Parachurch Organizations

RELIGIOUS DISCRIMINATION CLAIMS AGAINST PARACHURCH ORGANIZATIONS

Reporting herein has been editorially limited to court cases involving parachurch organizations litigating in contexts that might also implicate church owners or sponsors. Some parachurch organizations have secular interests that do not differ from non-religious businesses or charities. Litigation about those types of interests are not typically reported herein. Church litigation has dramatically expanded to the routine in occurrence and so, too, has litigation against parachurch organizations operating religious missions.

In Ayers v Fellowship of Christian Athletes, Slip Op. (ED Cal., 2019), the plaintiff brought suit after she graduated from high school because she was refused the office of “treasurer” in the local FCA chapter at her public high school. She was refused the office, as set forth in an email to her by the local FCA leadership, because the FCA leadership was uncertain whether she could espouse “crystal clear theology when talking with coaches and athletes” because she was Mormon. The stated concern was that the FCA leadership was unsure whether if she knew “the theological differences.” The trial court dismissed all of the federal claims with prejudice and declined supplemental jurisdiction over the state law claims and dismissed those without prejudice. The school district and its employees were dismissed on 11th Amendment immunity grounds because the plaintiff only sought monetary damages. The FCA sponsors were dismissed because they were not alleged to be state actors.

The email that set forth the religious reasons why the Plaintiff’s application for office was declined was a poor choice. No reason had to be given and if given, less clear language could have been chosen. Parachurch organizations operating missions in secular circumstances, like public schools, will likely chose to avoid the cost of litigation by compromises that churches would never have to tolerate.

Comically, the reason given in the email, concern over “theological differences,” assumed that other high school students could achieve theological continuity. Differing denominations and traditions do not play well together and have not since the Reformation. If these differences can be “set aside” for the sake of the parachurch organization mission, one has to wonder why they were not in this instance.

THE LEAST EXPECTED BLINDNESS

Someday, a qualified sociologist will study the last 60 years and explain the reluctance of the church to see and deal with sexual misconduct. Possibly a clinical, and secular, autopsy of the phenomenon will disclose cause and lead to a cure or prevention for future generations. Part of the problem such a study will have to overcome will be the bias of hindsight. Of course, the problem was not just in the church, as the case below makes clear. But, the church was the place the blindness was least expected.

In John Does v Boy Scouts of America and Church of Jesus Christ of Latter Day Saints, Memorandum and Order, (D. Idaho, 2019), the federal trial court as trial loomed ruled upon motions in limine. Such motions were filed by the Boy Scouts and the church to exclude the files of the Boy Scouts regarding volunteers and employees against which charges of sexual misconduct were considered during the last several decades. Some of the charges were investigated by the Boy Scouts but the lawsuit may hinge on whether the response to the charges was adequate or appropriate. The Boy Scouts urged the files should be excluded from evidence because they contained hearsay and were not official governmental investigations. The church argued the files should be excluded because the church did not know of the existence of the files. Of course, the ignorance defense of the church, a type of innocence defense, aids the Plaintiffs in their quest to prove the Boy Scouts obscured or hid the problem of sexual predators in their midst for decades. Also, the files may arguably by their numbers indicate the church had to know, too. The trial court overruled the motions. While that does not mean each file or document within each will be admitted in evidence, it does mean more will be admitted than excluded all things being equal.

Mandatory child sexual misconduct reporting laws will be enforced, even if the enforcement is many years after the events alleged. Churches, schools, and youth services providers must train out of existence the idea that they get to decide internally or privately the issue of credibility, guilty, fault, or punishment. Pastors, especially, and church leaders that try to exercise discretion about whether to report or not because they are uncertain if allegations are “true” are inviting public censure at the least and jail time at the worst. In the middle are substantial money damages for which most churches do not have sufficient insurance coverage. If the question of reporting is really unclear, the church should immediately engage counsel to render an opinion about the necessity of reporting and risks of failing to do so.

MINISTERIAL VOWS

There are few monastic or other orders remaining and there are few members of them. Evangelicals have generally not developed monastic traditions. Indeed, among some evangelicals, the ordination of the minister persists as long as there is a paycheck and the minister’s vow of poverty is involuntary. Nevertheless, the question of whether these vows are enforceable may arise in secular matters involving ecclesiastical monastic orders.

In Wisconsin Province (“Jesuits”) v Cassem, Memorandum of Decision on Defendant’s Motion to Dismiss (D. Conn., 2019), the federal trial court has before it a lawsuit in which a deceased Jesuit left a retirement savings account. As a Jesuit, he had contributed his earnings to the order all of his life pursuant to his vow. The order provided his living expenses since age eighteen. The bulk of his earnings, however, were derived from a very successful and prominent career as a research psychiatrist. Indeed, the retirement account at issue, which was valued at about $1.5 million, was maintained for most of its existence with a beneficiary designation that named the Jesuit order. Late in life, the Jesuit suffered from dementia and returned to reside with his family during the last years of his life. Sometime during that period, the Jesuit allegedly changed the beneficiary designation on the retirement account from the order to family members. The trial court dismissed the Jesuit’s request for a declaratory judgment that the Jesuits owned the account based on the lifelong vow of its deceased member. The court held that the vow was a contractual obligation of the deceased to the order. Remaining would be whether the order could seek contractual enforcement of the vow against the estate of the deceased Jesuit and whether that contract would supersede the beneficiary designation. That question was not answered in this opinion.

Whether an ecclesiastical vow is enforceable as a contract in a secular court would require a court to determine if the First Amendment Ecclesiastical Abstention Doctrine precluded the claim. Modern church organizations should assume an ecclesiastical vow will not be enforceable in a secular court in most situations, especially if the vow must be enforced against persons not members of the church organization in which the vow was made. For example, the retirement account should have been largely drained by the order with the assistance of the Jesuit upon retirement, if the order was aware of the account, instead of awaiting distribution upon death.

ESCAPING THE LEASH

Parachurch organizations, like senior care facilities and universities may eventually want to slip the leash and go their own way. Sometimes the efforts are crude and tempestuous. Other times they look like perpetual slow motion over a generation or more. In the end, however, if denominational control is exerted through organizational incorporation or governance documents, such as bylaws, the likelihood of escape under current law remains minimal. In the long drawn out efforts to escape, in contrast to the short noisy ones based on momentary shock and awe, it is a test of wills cloaked in the political correctness of the culture of the denomination in which each side attempts to drown the other’s position in kindness and mild rhetoric.

In Missouri Baptist Convention v Missouri Baptist University, et al, Slip Op. (Mo. App. 2019), the denomination’s lawsuit to enforce the governing documents of the university and the senior care center was filed in 2002 and summary judgment granted by the trial court in 2017. There is no explanation in the opinion why this case pended, or was allowed to pend, for fifteen years. The Court of Appeals affirmed the Summary Judgment in 2019 in the seventeenth year of the case. While the university and senior care center defendants attempted to convert the issue to an ecclesiastical issue that could not be judicially resolved, the attempt failed. However, the clever argument was that by deciding the denomination retained its explicitly preserved right to veto changes to the governance documents, the court was in effect deciding a religious dispute that arose between them. The religious dispute was not fully detailed but appeared to be that the denomination wanted the university to adhere in teaching to traditional religious doctrine rather than current scientific theories or conclusions. The clever argument about control and implied ecclesiastical decision making was blunted by the admission by the university and the senior care center that that the denomination was not, in fact, motivated by religious principles in its pursuit of control of the governance documents. That left the governance documents free to be enforced under Neutral Principles of Law, even if the implication of such a ruling would determine where control of the parachurch organization might reside. The appellate court held that third party consent clauses in corporate governance documents did not violate public policy but rather actually effectuated public policy.

Third party consent to amendment clauses in corporate governance documents will generally be enforced. Rather than litigating them, the better practice for the parachurch organization would be to try to raise the capital to buy the clauses back from the third party. A purchased release or waiver would be more certain and less expensive than litigation. Negotiations stretching back over many years may be necessary but stand a greater chance of success. If litigation is preferred, the argument that enforcement of the governance documents will also unfairly decide, not just implicate a true religious dispute, is the only avenue that offers any material slim hope in most states.