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.
There probably is nothing more confusing to a church than demands for documents or information from courts or government. Confusion arises because smart people that are not lawyers, relying on some anecdotal past personal experience, believe the church will have the same experience they had. This is usually wrong.
In Templeton v Bishop of Charleston, Order Denying Motion to Quash, United States District Court, Western District of Washington, No. C20-1578, the trial court denied the motion to quash a subpoena. The subpoena was served on a priest to testify by deposition in discovery in a molestation tort case. The priest was not a party to the lawsuit but a mere witness. The priest requested that the subpoena be quashed alleging that the Ecclesiastical Abstention Doctrine precluded inquiries into church administration. The priest further argued that a state statute made privileged his communication with his bishop. The priest lastly argued that the priest had a confidentiality agreement between himself and the bishop which precluded his testimony. The Court dismissed the Ecclesiastical Abstention Doctrine claim as too broad. It might apply to a particular question but it would not apply to others the Court held. The priest also argued he was a “canon lawyer” and a “judge of the ecclesiastical court” and entitled to privilege. The court denied the claim because the priest was not an attorney at law. Further, even if there was such a privilege, it might apply to a particular question and not apply to others. The state statute rendered “confidential communication” necessary for the priest to do his job privileged. But, the court held such an agreement might immunize a particular question but not others. The allegation of the confidentiality agreement between the priest and the bishop was generally swept aside because the court doubted such an agreement could override a court order to testify.
Churches that receive a court subpoena, or any other order from a court or government to produce documents, information or testimony, should immediately engage counsel to respond or object on their behalf. The church insurance carrier should immediately also be notified in writing. While the insurer may not undertake the representation by retaining outside counsel to represent the church, that is not always true. It may depend on whether the information sought might related to a future or anticipated lawsuit. Lastly, the word “immediately” should not be ignored.