In our report immediately prior to this one, the allegation in the case reported was that breach of the policies of the denomination or church by the church was a tort compensable in damages. Generally, tort claims are “wrongful acts” that are committed negligently. Intentional torts are generally those wrongful acts that are intentionally undertaken with the intent to injure, financially or physically, the damaged claimant.
In John Doe v Roman Catholic Diocese of Dallas, Slip Op. (Tex. Civ. App. 2021) the Plaintiff’s claim was that the Defendant committed “fraud by not following its internal policies for responding to sexual abuse after he reported he was sexually abused… .” The trial court held that the internal policies for responding to sexual abuse were “so integrally related to …dogma that it comprises part of the … religious representations, beliefs and teachings.” Therefore, the trial court dismissed the claim pursuant to the Ecclesiastical Abstention Doctrine. The appellate court affirmed the trial court. The appellate court held that an inquiry into whether the church violated its own policies “necessarily [required a] reach behind the ecclesiastical curtain.” The appellate court held that an allegation that the church violated its own policy by mishandling its internal investigation of the allegation was such an inquiry. The appellate court held that the allegation that the church violated its own policy by misinforming congregants of the investigation or its outcome was such a claim.
Internal church governance, its practices and procedures, are often of late the subject of claims. The damages claimed range from defamation to failure to protect from a sexual predator. There is no credible doubt that policies, practices and procedures of churches and denominations are driven by or drafted in conformity with religious beliefs. Therefore, interpretation and compliance by a church or denomination with its policies or procedures will be driven by the same religious beliefs. Nevertheless, churches and denominations should not consider the ecclesiastical barrier impenetrable. Mandatory child sexual abuse reporting statutes in most states, for example, may not tolerate contrary church policies and procedures. In any event, major decisions by leadership that are driven by church policies and procedures, especially those derived from religious beliefs, should be documented and the applicable policy or procedure annotated in the documentation.
In most states, in order to recover on a tort, a Plaintiff has to prove up a duty to the Plaintiff, breach of the duty by the Defendant, and damages. The unstated other element of proof is that the breach of duty actually caused the damages. There are many duties imposed in the law. However, while some secular duties can be imposed on a church or denomination, such as picking up the trash and mowing the lawn, not all can be. Herein we often report on federal employment laws that impose duties on secular employers but not on religious employers.
In Woodward v Miller, Slip Op., consolidated appeals, (Miss. En Banc, 2021) the Mississippi Supreme Court reversed the trial court and rendered Judgment in favor of the denomination and a minister that was also a psychotherapist with a certification in sex addiction. Miller was the original Plaintiff and the wife of a minister. The minister engaged in risky homosexual behaviors with multiple partners as well as engaging in sexual relations with his wife. The minister contracted HIV. The wife contracted HIV. The couple initially contacted another minister, Woodward, who was also a psychotherapist that attempted to assist the couple with the trauma. The wife sued the denomination claiming that the denomination should have detected her husband’s sexual adventures and warned her by properly enforcing its own policies and procedures. The wife sued the minister – psychotherapist for advising the husband to purge from his computer pornography and email, through which he engaged in the sexual conduct, resulting in spoliation of evidence. The appellate court held the denomination’s policies and procedures could not form the basis for a tort duty because the courts would be barred from considering them by the Ecclesiastical Abstention Doctrine. The appellate court held the minister psychotherapist consulted after the wife knew of the HIV infection did not spoil evidence in a future hypothetical civil claim but rather was only alleged to be treating an addiction.
The duty to treat homosexual conduct no differently than any other type of sexual conduct is imposed on secular employers through federal anti-discrimination statutes. Such a duty is not imposed on church employers because of religious entity exemptions in such statutes and the Ecclesiastical Abstention Doctrine of the First Amendment. The closer question will probably always be whether the actions taken by the denomination spoiled evidence of wrongdoing. For example, in the reported case the computer hard drive could have been taken into “protective custody” by the denomination as a means to “purge” the tools of addiction temptation rather than “purged.” But, spoliation without motive is usually not actionable. The minister psychotherapist was not alleged to have any motive.
It should not automatically be assumed in church splits that the minority faction retained any rights to sue. A minority group of members may have, before suing, erased their interest by taking some action. Strangers to the church may never have had any interest.
In Dubois Street Church v Church of the Living God, Slip Op. (Mich. App. 2021), the Plaintiff was a new church entity created by former members of the Defendant church. Indeed, while forming the new church, the former members announced it on social media and invited everyone. The trial court held the Plaintiff was not the real party in interest. In other words, the Plaintiff lacked standing to assert any claim because the Plaintiff had no connection to the Defendant church. The appellate court affirmed the trial court.
A minority faction in a church split might still have an interest upon which to sue the church. But, once they proceed to form a new church and accept a new membership, and publicly announce it, that interest they had as members might be no more. Such determinations will likely turn on the record that can be submitted to a court. In the current era, that record will most likely be social media posts. In the past it might have been printed flyers or other advertisements. The lesson might be that the faction retaining control of the church should not assume the minority faction retained any membership upon which to base a lawsuit. In any event, the new church entity would have no such interest even if its members, as former members, might still have an interest.
The ongoing tension between federal civil rights employment statutes, the Ministerial Exception and the Ecclesiastical Abstention Doctrine has not ended even while greatly reduced due to recent United States Supreme Court decisions. “The ministerial exception bars adjudicating employment disputes “involving those holding certain important positions with churches and other religious institutions.”” Our Lady of Guadalupe Sch. v Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 US 171, 194-95 (2012).
In Trotter v United Lutheran Seminary, Memorandum Opinion (E. D. Penn. 2021), the federal trial court overruled motions for summary judgment (which is probably the last step before trial in the case). The Plaintiffs alleged they were victims of retaliation and hostile work environment discrimination. The Plaintiffs held positions titled: Vice President for Advancement and Vice President for Student Vocation and Formation. The trial court held that on the facts presented the Plaintiffs did not teach religion or otherwise carry out the duties of ministers. One of the Plaintiffs was, indeed, an ordained minister. The trial court held that ordination in isolation did not trigger the Ministerial Exception.
Parachurch officers may perform duties sufficiently secular, and not participate in duties that are sufficiently or inherently ministerial, that federal civil rights employment claims remain viable. The record that can be presented to a court may determine the sufficiency of either. Such a record must be carefully developed. Development of such a record should begin earlier than at the time of a claim or lawsuit.