CHOIR DIRECTORS AS MINISTERS

In a large church, the music ministry might be led by a “minister of music.”  Such a leader might have a staff that includes choir directors tasked with creating and leading certain types of choirs for various events and services.  In some churches, the “choir director” may still have that title but in actuality be the minister of music, or the minister of music in certain situations.  In all churches, it is unlikely to find a choir director without significant duties in worship services as well as related events.

In Martin v SS Columbia Brigid Catholic Church, Order on Motions to Dismiss (WD NY 2022), the federal trial court dismissed the federal employment law and state law case of a choir director.  The church moved for dismissal based on the Ministerial Exception to federal employment laws and state law claims.  The Plaintiff alleged the title “choir director” was not a ministerial position.  However, the Plaintiff acknowledged she would be “perceived as a religious leader” because her duties encompassed a “significant religious dimension” that appeared to be her “primary function.”

This Court did not review employee handbooks or any contractual documents because the case was at the pleading stage at which a motion to dismiss became the vehicle for dismissal.  The Court’s opinion was based solely on the allegations in the complaint filed by the Plaintiff which the Court had to treat as true as long as the allegations were plausible.

PARACHURCH ORGANIZATION BENEFITS DISCRIMINATION

During the lifetime of this writer and many readers, even churches have been subject to cosmic and cataclysmic changes.  Women universally wore hats and gloves to every and all worship services and men wore coats and ties.  Divorced people were pariahs.  Now, in very few churches is there any dress code, formal or informal, and most want people to “come as you are.”  Divorced people now have the same representation in church populations as in the community.  Divorced people are no longer excluded from all church leadership positions.  Women were rarely seen in church leadership or ministry positions but the opposite is now true.  Even in denominations that limit the roles of women, those limitations are shrinking.  Likewise, the issue of gay rights is now moving churches through the same sort of upheavals.  Indeed, denominations are literally splitting over the issue.  The report that follows and the commentary at the end reflect perceptions of the legal issues only and is not a commentary on moral issues or religious doctrine.

In Doe v Catholic Relief Services, Memorandum (D. Maryland, 2022), the Plaintiff, a data analyst employed by the parachurch organization, sought health benefits for his same sex spouse which the employer ultimately refused to provide.  The Defendant was characterized by the federal trial court as a “social services nonprofit” employing 7,000.  The court noted it was “constituted” by the United States Conference of Catholic Bishops.  The Defendant binds its employees to a Code of Conduct and Ethics “informed by the teachings of the church.”  The “human resource materials” disclose that benefits offered to employees are administered “consistent with Catholic values.”  The Plaintiff was given a promotion and additional salary thought to be sufficient to cover the cost of private purchase of health benefits for Plaintiff’s spouse.  The Defendant sought to dismiss the case invoking the Church Autonomy Doctrine.  The federal trial court rejected the argument by holding the court could decide the issue under neutral principles of law and need not inquire into church doctrine regarding employment of a data analyst.  The federal trial court denied that the Title VII prohibition of applicability of the statute to religious organizations applied to discrimination on the basis of sexual orientation but only to employment of “co-religionists.”  The trial court denied the Religious Freedom of Restoration Act applied to anything other than when government is an actor, so it did not apply to the case.  The federal trial court denied that the Free Exercise Clause of the First Amendment did not apply to federal employment discrimination statutes because prohibition of sex discrimination was neutral and only incidentally burdens religious exercise.  The federal trial court held the Defendant violated the federal Equal Pay Act because the same sex spouse was treated differently than non-same sex spouses.  The federal trial court decided to leave to a future jury the question of damages but precluded punitive damages because of the “uncertainty of the scope of the religious exemption” and the Defendant’s attempt albeit unsuccessful attempt to arrive at a bargained resolution.

The parachurch organization’s abandonment of its own Code of Conduct and Ethics “informed by the teachings of the church” led it to the slippery slope where it could not bargain its way out of the dispute and it had to litigate it in a federal court that thought the statutory exemption, much less the First Amendment, applied only to employment of “co-religionists,” a term the court opinion reported above used three times.  As the parachurch organization ultimately learned, no good deed goes unpunished.  Terminate the employee or do not based on the Code.  If not, do not fiddle with benefits, parking spaces, promotions or anything else in order to try to give lip service to an abandoned policy, religious or otherwise.

MONEY DOES NOT MORPH THE CHURCH INTO THE STATE

Historically, it was not uncommon for church sponsored or operated orphanages and children’s homes to fill the gap between state facilities and the need.  It was also not uncommon for these parachurch organizations to accept state funding for state wards when the state had no available facilities in the locale.

In Doe v Archdiocese of St. Louis and Anderson, Memorandum and Order (ED Mo. 2022), the federal trial court dismissed the federal law claims with prejudice and dismissed the state law claims without prejudice.  (This is a standard federal trial court practice to allow state law claims to be pursued in state trial courts if the Plaintiff so desires, but it ends the federal law claims unless continued in an appeal.)  The Plaintiff alleged that he was sexually abused forty years ago at a children’s home operated by the Defendants in violation of a federal constitutional right.  Such a claim is brought to federal court under federal statutory authority:  42 USC §1983.  The Plaintiff after extensive discovery was never able to prove the Defendants as operators of the children’s home were “state actors” rather than private actors.  The Plaintiff argued that the children’s home accepted state reimbursement for holding wards for which the state had no other placement available in the locale.  According to the Plaintiff, taking the money converted the parachurch organization to a “state actor.”  The federal court held merely accepting funds from any level of government does not convert the private entity to a “state actor.”  The court cited Rendell-Baker v Kohn, 457 U. 830 (1982) in which the private school derived nearly all of its funding from state funds but was still held not to be a “state actor.”

In the reported case, there was no written contract between the parachurch organization and the state.  The payment of the funds indicated there was at least some form of oral contract.  A formal contract may have contained terms that altered the role of the parachurch organization.  The federal civil rights claims possible through §1983 might have been tempting to the plaintiff as an effort to escape Missouri’s two year statute of limitations or even the more specific ten year statute that applied to sexual abuse.

ECCLESIASTICAL ABSTENTION JURISDICTION

Generally, in order for the separation clause of the First Amendment to have any real meaning, the Ecclesiastical Abstention Doctrine has to be a jurisdictional barrier to litigation and not just liability.  The real horror of litigation is the cost of litigation; liability may make the headlines, but the cost of litigation is a burden that might even be greater than the value of winning.

In Doe v Roman Catholic Bishop of Springfield, Slip Op. (Mass. 2022), the Plaintiff alleged being a victim of sexual misconduct perpetrated by certain church leaders in the 1960s but only being able to remember it forty years later when the stories of other victims appeared in the news media.  The Plaintiff sought to report the assault in 2014.  A church sponsored investigation at first treated the Plaintiff’s complaint as not credible.  The church did not report the matter to law enforcement until 2018.  The news media in 2018 reported that the church review did not confirm the Plaintiff’s allegation.  A second review commissioned by the church later lifted it to “compelling and credible.”  The church in 2020 apologized both for the alleged rape of Plaintiff and the “chronic mishandling” of the Plaintiff’s allegation since 2014.  The Massachusetts appellate court held the common law charitable immunity doctrine, abolished by the state legislature in 1971, nevertheless applied to the allegations of sexual assault in the 1960s.  The charitable immunity doctrine was founded on the premise that funds received by a church or charity did so as a public trust and had the duty to assure the funds were spent on the mission, and not on cost of litigation or liability.  Thus, those counts were immediately dismissed.  The mishandling of the complaint of the Plaintiff in 2014 remained actionable because the conduct complained of occurred after the charitable immunity doctrine was abolished.  The Ecclesiastical Abstention Doctrine was held not to be a jurisdictional bar to litigation, even if it was or might be a bar to liability.

Treating the Ecclesiastical Abstention Doctrine like an affirmative defense, rather than a bar to jurisdiction as in the case reported, means while liability may someday be limited or eliminated, the cost of litigation will continue until there is a final decision by summary judgment or trial.  Discovery could be limited in such cases to jurisdictional facts which might blunt the impact.  While it would seem that the Ecclesiastical Abstention Doctrine’s applicability, because it is an effort by courts to obey the separation clause of the First Amendment, should be handled at the outset to tame the hungry lion of the cost of litigation, some courts will not reach that conclusion in the absence of specific legislative intervention.