Category: Uncategorized

THE ECCLESIASTICAL ARBITRATION FORUM

It is rare to get any look inside ecclesiastical arbitration forums because, like nearly all arbitration forums, they are private and not public. Some church forums have clearly defined rules of procedure and others are a bit more spontaneous. The arbitrators may or may not have any training in the rules of the forum or arbitration in general. About the only safeguard for the rights of the parties in most church arbitration forums is that arbitrators almost invariably try to do the right thing.

In Garcia v Church of Scientology, Order, (USDC, MD Fla., Tampa Div. 2017), the Plaintiff sought certain safeguards. The Plaintiff wanted a disclosure by the arbitrators that there were no ex parte contacts with the church about the case. The Court held that the Plaintiffs provided no authority indicating the Court had jurisdiction to order such a disclosure. The Plaintiff wanted the hearing transcribed by a court reporter and a ruling from the Court that certain rules of evidence would not apply. The Court also held no authority was submitted indicating the Court had the power to order such attributes. The Plaintiff also argued the church waived the arbitration agreement between the parties but the Court swept it aside in one sentence because the Court held there was no evidence of waiver submitted. The Court also concluded that the Free Exercise Clause blocked the Court from “resolving internal disputes” regarding religious doctrine.

The Order was very brief and not a full opinion thus commentary is necessarily limited. Nevertheless, the arbitration clause was in an agreement the Plaintiff signed when they joined the church according to the Court and may also have been mandated by the controlling denominational documents. The United States Arbitration Act, 9 USC §1, et. seq., apparently could be invoked to enforce the church membership contract containing the arbitration agreement. While reporting that seeming holding, one has to wonder if the Ecclesiastical Abstention Doctrine would allow a court to enforce an arbitration clause. But, an arbitration clause is a creature of contract and neutral principles would probably accommodate enforcement, even if the arbitration was intended to rule upon a religious dispute. While the Court did not describe the procedural rules of the arbitral forum, it remains to be ruled upon whether substantive and procedural due process challenges could be made if the dispute was economic rather than ecclesiastical.

“I DON’T THINK A CHURCH OF THIS SCOPE WAS ENVISIONED”

West of the Mississippi the word “megachurch” brings to mind a church complex serving thousands of people. Contrast that to Maryland where apparently a “megachurch” is a 31,500-square foot sanctuary building, which would afford seating for 1,000 people, classrooms for religious education, a nursery area, a warming kitchen, offices, parking and a “fellowship hall” which would also serve as a gymnasium all on 16.6 acres. At least, it is a “megachurch” in Maryland if certain evangelical denominations are involved. Such a “megachurch,” in Maryland, may threaten the watershed, threaten the traffic pattern, and otherwise endanger the peace of the neighborhood so zoning laws can be invoked to stop its construction. Little did the Marylanders realize that West of the Mississippi such a church would be at best considered medium in size.

In Hunt Valley Baptist Church, Inc. v Baltimore County, Memorandum Opinion (USDC, D. Maryland, 2017), the Plaintiff outgrew its original location and facilities and bought 16.6 acres that was approved for a housing subdivision but only contained two single family residences. The zoning powers simply stopped the development of the entire 16 acres by the church. The parking lot proposed was too porous, even though it was identical to the parking lot at the church next door. The church building proposed might use a third of the land and threaten the watershed but the golf course next door had no environmental impact. The zoning board was especially afraid of the fellowship hall that might double as a gymnasium even though five other churches in the same zoning tract were approved for such facilities and the zone was automatically by statute open to school construction. Based on such facts, and many others, the Court in its 76 page opinion refused to dismiss the church’s lawsuit brought to enforce its rights provided by the Religious Land Use and Institutionalized Persons Act of 2000, 42 USC §§2000cc, et. seq. (“RLUPIA”). One board member was quoted in the news media as saying, “I don’t think a church of this scope was envisioned.” The Court noted it in passing but it seemed to explain the inconsistencies in application of the zoning laws. This decision meant only that the church got to proceed to try to prove their allegations.

What seemed clear from the opinion was that the church invested enough in its legal representation to make a viable fight against “city hall.” While the outcome remains to be determined, the opinion is a relatively good blueprint of what a church zoning challenge may entail. Typically, such challenges are factually byzantine because wide discretion is permitted, and the statutes often do not limit the exercise of discretion in a material way, no matter how many elements are in the statute. Also, the record of the reasons for decision available from such proceedings is often very thin. Indeed, in this case before the zoning board, no expert witnesses were engaged by the city to counter the expert witnesses called by the church during seven hearing sessions scheduled during a year. Only in public hearings before the city council were experts for both sides deployed. That means the church hired expert witnesses to testify before the zoning board, before the city council and will have to do so before the court. The costs have been and will be staggering. In federal court, the experts, if they have not already done so, will have to write reports compliant with the federal rules, testify at deposition, and if they survive that gauntlet testify at trial.

RELIGIOUS SCHOOL LAWSUITS

It seems accepted that churches are shielded by the Ecclesiastical Abstention Doctrine and most cases against them will simply be dismissed. The outer edge of the doctrine is still uncertain at times. The para-church organization must be proven to be religious in purpose and operation to be shielded by the Doctrine.

In the opinion styled In Re Episcopal the Episcopal School of Dallas, Inc., Slip Op. (Tex. App. 5^th, 2017), the Plaintiff was a student. The Plaintiff allegedly left campus during lunch without permission, parked in front of a residence and smoked Marijuana, denied it even though the other student involved confessed, refused to allow a search of his car, substituted another student’s sample for his urine for a drug test, and failed a drug test once the right urine was tested. The student was dismissed from the school. The trial court refused to dismiss the case. The Plaintiff argued to the trial court that the school was not owned or operated by a church and that the dispute was governed by the admissions contract between the school and the student thus making the Ecclesiastical Abstention Doctrine inapplicable. The Court of Appeals, however, examined the school’s articles of incorporation, composition of its governing board, worship service schedule, faculty, and determined there was “only one reasonable conclusion.”

The Court of Appeals held that the school was a “religious school” or a “faith based institution.” The school had on the faculty Episcopal priests that led the student body in daily worship. The Bishop of the Diocese sometimes officiated. There was mandatory religious instruction. The student’s claims derived “solely from the calculus of the school’s internal policies and management of its internal affairs.” The school’s lack of a formal affiliation with a church or denomination did not make inapplicable the Ecclesiastical Abstention Doctrine. The “secular contract approach” urged by the student “did not apply when the claimed breach of contract arises from an enrollment agreement at a faith based institution.” That the dispute was not in all respects about religious doctrine was not the test. Enough of the dispute was entangled in religious considerations to require application of the Doctrine.

CHURCH SCHOOL FACULTY EMPLOYMENT CONTRACTS

In order to determine if federal employment discrimination statutes apply to the employee of a para-church organization, a court will look to the descriptions of the employment both sides tender into evidence. On a Motion to Dismiss at the beginning of a case, this may be a very limited inquiry. Typically, motions to dismiss look only to the Plaintiff’s allegations in the Complaint or Petition and to any documents attached. On a Motion for Summary Judgment filed after discovery the range of admissible facts and exhibits may be quite broader.

In Lishu Yin v Columbia International University, Order and Opinion, (D. SC – Columbia, 2017), the Plaintiff attached an employment contract to the Complaint and made certain allegations about her employment role. The Court overruled the Motion to Dismiss. The Court determined that the description of the Plaintiff’s job in the employment contract did not establish that Plaintiff was a minister such that the case barred pursuant to the First Amendment’s Ministerial Exception. The employment contract described the job as “associate professor” and “faculty of the ministry.” The Plaintiff self-described her role as a full time resident faculty member in the “Masters of Teaching English as a Foreign Language” program. The Court held that these descriptions were not sufficient to persuade that Plaintiff was a “minister” triggering the Ministerial Exception.

The employment handbook of the institution and the employment contract cannot alone trigger the Ministerial Exception if they do not describe the ministry the jobholder is to perform. Further, the description should reflect the age or maturity level of the students, not simply be overly general boilerplate, and the handbook and contract should dovetail by referring to each other’s latest version, even if the version is not stated.