The defamation claims that arise between churches or their clergy do not so far include claims by which the allegedly wronged party claimed the wrong was that their beliefs were mischaracterized, or even described pejoratively. Usually, defamation is alleged when the allegedly wronged party claims they were falsely accused of heinous misconduct, not merely beliefs the accuser held to be unpalatable. While it may seem obvious that the First Amendment would never permit a defamation claim based on the allegation that beliefs were mischaracterized, or even described pejoratively, it seems someone had to try it.
In United Federation of Churches, LLC v Johnson, Order Denying Motion for Reconsideration (WD Wash. 2022), the Plaintiff, also known as the “Satanic Temple,” alleged the Defendants violated the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. §1125. The Court opinion does not recite the precise manner in which the Defendants were alleged to have done this. But, the Plaintiff alleged their Facebook page had been compromised in some fashion. The Court rejected the cybersquatting claim because “Facebook.com” is not a domain name protected by the statute. The statute prohibits creation of identical or confusing domain names. The Plaintiff alleged the Defendants defamed them on other Facebook pages accusing Plaintiff of “ableism, misogyny, racism, fascism, and transphobia.” The federal trial court dismissed the defamation claim because “resolving the claim would require the court to violate the First Amendment by “delving into doctrinal matters,” contrary to the Ecclesiastical Abstention Doctrine, in order to “define the beliefs held by” Plaintiff to determine if the allegations were untrue.
Churches with Facebook or other social media platform presences, or even pedestrian websites, should expect that critical review, even vile critical review, of their beliefs will generally be unassailable. Only when such castigation violates the Terms of Service of a platform will any recourse be available. Churches should assume that even complaints about violations of Terms of Service will likely be ineffective. Internet Trolls may be unavoidable but the sure strategy is simply to out live them.
The law of defamation during church disciplinary actions is complicated by the multiplicity of approaches taken in each state and because such cases are rare. Indeed, the cases are so rare that changes in societal mores and norms, not to mention law, have probably changed dramatically between the incidence of such cases.
In Laguerre v Maurice, 2020 NY Slip Op 07877 (NY App. 2020), the defendant pastor allegedly told the 300-member congregation during a “membership” meeting that the Plaintiff, an Elder in the congregation, was a homosexual who viewed gay pornography on the church’s computers. The Plaintiff sued claiming the statement by the pastor was defamatory per se. The defendant pastor alleged the statement, if made, was part of an ecclesiastical disciplinary process over which the court had no jurisdiction. Further, the defendant pastor alleged the statement, if made, was made to the membership and was protected by a common interest privilege. The Court held there was no ecclesiastical issue because neutral principles of law would suffice. The Court held the Plaintiff’s allegation the pastor’s statements to the membership were made with malice made any common interest privilege inapplicable. The malice alleged was that the statements were only made to remove Plaintiff as an Elder and force him out of church membership and not to vindicate a moral or religious position. Thus, the case was not outright dismissed. However, the Court affirmed dismissal of the theory of recovery for defamation per se, overruling a prior 1984 decision of the Court along the way, by holding allegations of homosexuality were no longer defamatory per se. The Court held state public policy no longer considered allegations of homosexuality defamatory per se.
Unless denominational or church governance documents require statements about the basis of church disciplinary actions to the membership, rather than just the church leadership, such statements should be avoided for obvious reasons. Churches that deem homosexuality as immoral must still exist in a society that no longer permits discrimination against homosexuals. That does not require abandonment of morality, but it does require intelligent co-existence. See, 1 Timothy 5:19-20. Most churches have moved well past the era in which divorced persons were ostracized and so, too, might that happen regarding other mores.
Does the pastor, minister, evangelist, priest, rabbi or imam have the authority to enter into an employment contract that will bind future church leaders? However, in order to answer such a question judicially may require that a secular court develop a full understanding of the ecclesiastical structure of a denomination or church.
In Napolitano v St. Joseph Catholic Church, Slip Op. (FL. App. 2020), the plaintiff was for twelve years employed as the office manager of the church. When the pastor learned that he was to be replaced by the hierarchy of the denomination, a written employment contract was for the first time entered into between the church and Plaintiff. The contract had a term of four years and required termination only for cause. It also automatically renewed for another term if there was no written notice of intent to terminate six months before the end of the term. The new pastor terminated the Plaintiff without notice. The Plaintiff allege breach of contract and that the former pastor had apparent authority to enter into the employment agreement and bind the denomination. The case was dismissed by the trial court and the appellate court affirmed dismissal. The appellate court held that the actual authority of the former pastor to enter into the employment agreement and bind the denomination was a question of ecclesiastical doctrine into which the court could not intrude. The court held that the question of apparent authority was likewise an ecclesiastical inquiry.
Denominations should consider including in their governance documents clauses that preclude or require the prior written approval of written employment agreements. Several different approaches could be taken. These might include requiring written approval only if the written employment agreement has a tenure greater than one or two years, or if it permits termination only for cause, or require an automatic termination clause in the event a new minister is appointed or licensed by the denomination for the church. Local churches without denominational affiliation or oversight should in their governance documents spell out whether a single church leader can enter into an employment agreement without approval of a governing board.
While bold steps taken in faith sometimes result in amazing outcomes, typically bold financial steps taken without consideration of the Law of Gravity are not usually exempted from the predictable results. Church debt is a tool that should be carefully used. There have been many studies during the last century about the safe ratio of debt to giving, or debt to member income, but rarely are they consulted when church leadership decides to take a leap of faith.
In the Abundant Life Worship Center Bankruptcy, Opinion on Motion to Confirm No Stay is in Effect, (BKR SD Geo., 2020), the church sough to stop foreclosure three times in the prior two years. The three efforts included one state court injunction proceeding and two federal bankruptcy cases. The notes were on 40 acres and a newly constructed worship center that totaled $1,650,167. The church membership was 25-30, although growth after the pandemic was anticipated. Offerings, the only source of income, dropped from $260,549 in 2018 to $99,484 for the first ten months of 2020. The church also had non-mortgage debt. The church argued that the mortgages were not approved by the membership even though the church was a congregational church. The church argued that the earlier bankruptcy filing also was not authorized by the church membership. The instant case was the third attempt. The bankruptcy court held that congregational approval might be important in some circumstances, such as a schism, but not so to support a claim the mortgages were ultra vires. The lender foreclosed but held the deed pending a ruling that there was no stay in effect. The court held there was no stay in effect.
These reports are not intended to provide an in-depth treatment of the bankruptcy code, which clearly had some impact on the resolution reported. The lesson, however, to be learned is that while a congregational church might be able to prevent ultra vires actions by unauthorized church leadership in a schism, it will not likely work as well in commercial transactions. The church in the reported case over a substantial period of time increased its mortgage load, constructed a building, and otherwise observed the commercial activity. These things were not done in a corner. Congregational approval, or acquiescence, could be assumed.