It took the Texas courts substantial effort to work through to find the edges between Texas tort law and the Ecclesiastical Abstention Doctrine. The legal culture of Texas, that there should be a remedy for every wrong and that everyone should have access to the Texas courts, is strongly engrained. Fitting the edges of that absolute to the edges of the Ecclesiastical Abstention Doctrine was difficult both legally and culturally. Other states have had similar angst.
In July 2021, we reported on the seemingly terminal disposition of the issue by the Texas Supreme Court in In Re Diocese of Lubbock (II), 624 SW3d 506 (Tex. 2021), cert. denied, 142 S. Ct. 434 (2021). The Texas Supreme Court invoked the Ecclesiastical Abstention Doctrine and ordered the case dismissed on jurisdictional grounds. Essentially, the rule that evolved was “[b]ecause courts are prohibited from risking judicial entanglement with ecclesiastical matters, if the substance and nature of the plaintiff’s claims are inextricably intertwined with matters of doctrine or church governance, then the case must be dismissed.” (quoting the case reported on in this article, at 11).
In Heras v Diocese of Corpus Christi, Slip Op. (Tex. App. 13th, Corpus Christi 2022), the dismissal on jurisdictional grounds of the Plaintiffs’ defamation tort action was held in abeyance on appeal until the Texas Supreme Court ruled as noted in July and summarized above. The appeal was reactivated and the trial court’s dismissal was affirmed. The appellate court began their analysis with a review of the holdings in Our Lady of Guadalupe Sch. v Morrissey-Berru, 140 S.Ct. 2049 (2020) and Hosanna-Tabor Evangelical Lutheran Church & Sch. v E.E.O.C., 565 U.S. 171 (2012). The appellate court held “[h]ere, appellants impermissibly seek to impose liability on appellees for compliance with an internal church instruction of openness and transparency.” Compliance with the “internal church instruction” by investigation and public disclosure was not within the jurisdiction of the Texas courts to address.
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.
How long does a denomination or local church have to investigate sexual misconduct allegations against personnel? Most governing documents that address the question, and most are actually altogether silent or do not differentiate such allegations from other matters of discipline, do not set a time limit on investigations or discipline. Stated another way, must the duration of such an investigation be “reasonable?”
In Taylor v Evangelical Covenant Church, 2022 IL App (1st) 210524, Slip Op., the trial court’s decision to dismiss the case with prejudice was affirmed. The Plaintiff was suspended by the denomination from pastoral duties in 2017 pending investigation of a sexual misconduct claim alleged to have arisen in the 1970s. The defendant denomination licensed pastors and had the authority to suspend them. The defendant denomination investigated during 2017 – 2018 and reinstated Plaintiff’s licensure but did not reinstall him in another local church as pastor by the time suit was filed in 2020. In the interim the local church that previously employed Plaintiff hired a replacement. The Plaintiff alleged the denomination violated its governing documents by “keeping Plaintiff in a suspended status for an unreasonably lengthy period.” The appellate court determined that the substance of Plaintiff’s pled claims related to “internal matters of church governance and discipline” including the claim about undue or unjust delay. Therefore, the Ecclesiastical Abstention Doctrine precluded court review.
The governing documents need not set time limits on investigations, discipline, or any other matter of internal church governance. Indeed, it is probably better that they do not. The actual procedures the denomination used on the fifty year old sexual misconduct allegation were not set forth in the opinion. Nor was there any report of whether the investigation found the allegations credible. The reinstatement of the licensure of the Plaintiff seemed to indicate the allegations were not found credible. That the Plaintiff had not be reinstalled as a church pastor may or may not indicate anything other than supply and demand given the lack of specifics in the opinion.
Unincorporated church associations are governed, in some states, by a “non-profit organization” statute. Such a statute may impose on the church association certain requirements to disclose financial records to members of the association. An unincorporated church association can also have a Constitution and Bylaws. The trap for the unwary is that such Constitution and bylaws, while not identical to those of an incorporated church, will not be effective as governing documents if they lack specificity similar to corporate cousins.
In the case of In Re Lee Edward Thomas, Slip Op. (Tex. Civ. App. 6th 2022), the Constitution and Bylaws of the unincorporated church association did not specify the procedure for termination of the pastor but did specify the procedure for hiring the pastor. The same documents also described duties of a finance committee but did not disclose the method or procedure for appointment of finance committee members. When the church split spilled into the street, each faction claimed it represented the congregation. At stake was control of the church property and several hundred thousand dollars. The bank holding the money threw up its hands and sought to interplead the money. The trial court held the issue of the employment, or unemployment, of the pastor was outside the jurisdiction of the court because of the Ecclesiastical Abstention Doctrine. Because the Constitution and Bylaws did not specify the method of selection of the finance committee members, their appointment was a matter of church governance, claims about which were barred by the Ecclesiastical Abstention Doctrine. The court could not determine whether the allegedly voting members were in fact members because the church had not maintained an official membership roll. However, embezzlement, conversion and breach of fiduciary duties claims were retained to the extent they could be decided by Neutral Principles of Law.
Unincorporated church associations have the same needs for governing documents and membership rolls as do incorporated churches. The governing documents can certainly be inspired by the religious beliefs of members but the practical, secular, and, yes, worldly aspects should be drafted by a lawyer consistent with state statutory requirements. Governing boards of unincorporated church associations should keep minutes just like incorporated churches and for the same reasons, such as documenting adoption of an annually updated membership roll and amendment of governing documents. Without such, the unincorporated church association will fall into disorder which will be laid bare in an internal dispute.