In determining whether an employee can bring an employment discrimination claim against a parachurch organization like a religious fine arts college, the fundamental question before a court is whether the employee is barred from such a claim by the Ministerial Exception doctrine. The Ministerial Exception doctrine at bed rock prevents a court from hearing an employment claim from “ministers” that represent in some way the faith during their employment. The Ministerial Exception was recognized by the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 565 US 171 (2012).
In Deweese-Boyd v Gordon College, Slip Op. (Mass. 2020), the trial court granted summary judgment to the liberal arts college but the appellate court reversed. Plaintiff was a faculty member that sought promotion to full professor. The promotion was denied for the stated reason that Plaintiff did not publish sufficiently. Plaintiff claimed the promotion was denied because the Plaintiff was an outspoken critic of the school’s policies regarding homosexuality and sex outside of marriage. The Plaintiff was a teacher in the social work program. The liberal arts college in its organizational document was committed to both religious instruction and secular instruction. However, the secular instruction was to be “integrally Christian.” The school’s mission statement required undergraduate students “have a profession of Christian faith.” The Faculty Handbook stated the “foundations of Gordon’s education philosophy are Christian doctrine” the source of which was “God’s eternal Word.” In order to apply for work at the college, the Plaintiff had to sign a Memorandum of Understanding in which they agreed to “abide by” the “Statement of Life and Conduct at Gordon College.” The Social Work Department Handbook like the Student Handbook disclosed the program was “informed by a Christian worldview.” Plaintiff alleged she never held herself out as a minister, had no religious duties, did not promote “evangelical Christianity,” was not authorized to speak authoritatively as to church doctrine, and performed no religious functions. The appellate court granted judgment against the college on the Ministerial Exception. On remand, the college would not be allowed to present the Ministerial Exception as a defense. On remand, the trial court will be forced to decide whether the Plaintiff abided by Memorandum of Understanding in which Plaintiff agreed to “abide by” the “Statement of Life and Conduct at Gordon College.” There may be a “morals clause” lurking therein that Plaintiff has yet to address, but if so, the clause was not in the opinion. Also, on remand, the question of sufficiency of publication may yet be litigated.
To encompass a teacher of a secular subject in the religious nature of the religious school in some states will require an explicit undertaking by the teacher signed at hiring to refrain from advocacy or teaching contrary to religious doctrine espoused by the school, violation of which is a ground for termination. Such clauses should be drafted by counsel and not by ministers or academics.
If there is any policy marketed by any insurance carrier to cover risks in a church split, and what the terms and cost might be, we are unaware. However, what typically happens in a church split is that the faction in control of the church, that can retain the corporate entity, usually can retain the insurance policies. That does not automatically mean there is any coverage in a church split, but the insurance that there is will typically go with the corporation. On the other side, the faction that loses control of the corporation or incorporates a new entity to be the secular embodiment of the church typically has stepped completely outside the umbrella of insurance coverage for nearly all types of claims, related to the split or not. (The word “all” is too often overlooked by readers. “All” by definition is ad infinitum bearing of no exception.)
In Newton Covenant Church v Great American Insurance Company, Slip Op. (1st Cir. 2020), the United States Court of Appeals for the First Circuit affirmed the Massachusetts federal trial court that granted the insurance carrier’s motion to dismiss. The Plaintiff was formed by a departing faction. The Plaintiff and some of its leaders or officers were sued by the denomination to dislodge them from the local church property and recover the local church assets. The leaders or officers of the Plaintiff sought a defense under the duty to defend. The duty to defend is in every insurance policy likely to be bought by a church. Under the duty to defend, the defense of a lawsuit against an insured must be paid for by the insurance carrier. However, the insurance carrier denied the claim for a defense. The insurance carrier’s policy named the predecessor local church corporation as the insured and not the faction that departed. Also, the policy expressly excluded lawsuits among insureds. The trial court held the lawsuit by the denomination filed against the departing faction, which had been members of the denomination, was a lawsuit among insureds.
In a split, departing factions that no longer have control of the original church corporation, like any brand-new church, have no insurance until it is purchased. That will generally include everything from employee health benefit programs to auto policies. Any lawsuit with the denomination or faction left in control of the church corporation will generally require out of pocket attorney fees and court costs to defend.
The most frequent question we have fielded from churches has been whether the parking lot service if conducted consistent with CDC and state guidelines is imperiled if a set of bathrooms is open and available. That question remains to be answered by any court. But, indirectly it may have been considered.
Please note that in this post we are departing from our normal practice of reporting court opinions that are more or less dispositive of the issues before the court.
In Temple Baptist Church v City of Greenville (ND Miss., No. CIV-2020-64), the United States Department of Justice (“DOJ”) filed a Statement of Interest in support of the church Plaintiff. Temple Baptist was alleged by the Plaintiff, and reiterated by the DOJ, to be a small church that did not have a website, did not have the ability to stream services, and had a membership that did not have universal access to streamed material. Temple held a parking lot worship service on Easter Sunday and used a lower powered FM transmitter to reach cars parked in the church parking lot. The church required social distancing car spacing and rolled up windows allowing no one to exit their vehicles. Mississippi declared churches to be essential businesses. The City of Greenville, however, enacted their own shelter in place order banning church parking lot services and allegedly declaring churches to be non-essential. The DOJ pointed out the enactment was directed at churches and ignored the contradiction in the city shelter in place order that allowed drive through restaurant patrons to sit in their cars in line with the windows rolled down. City police showed up at the church parking lot Easter service, knocked on windows, demanded driver’s licenses, and ticketed the attendees at $500 apiece.
There is no certainty the church will prevail even with the support of the DOJ and the protection of the First Amendment. In times of plague, epidemic and pandemic, government has extraordinary powers to temporarily curtail freedom of movement and association. However, most of the opinions on the subject date from the eras of yellow fever, smallpox and polio. The more recent opinions arose during the Ebola virus epidemic even though in the United States there were very few. However, allowing people to get out of their car to make grocery and liquor purchases, or to roll their window down to receive them, certainly seems to indicate stricter controls on church parking lot services are constitutionally impermissible.
While churches and para-church organizations seem to go through life cycles, some do die. Church death has many causes including changing demographics, changing worship modalities, location, and many others which sometimes may include a fundamental flaw in the reason for their establishment. Some churches were founded on what seemed like a prophetically driven vision that in the passage of time was rendered obsolete by the march of history.
In Ferrel v Israelite House of David, Slip Op. (unpublished) (Mich. App. 2020), the defendant was founded in 1903 to “lead the faithful to the ‘ingathering’ of Israel” in the final days. The Defendant was converted to what today we might call a para-church organization in 1908 (then called a “voluntary religious organization”). In 1904, the Defendant created a “colony” in Australia but by 2010 all members located there had died. The “colony” property, however, was worth $50,000,000 after a century of inflation. The property was managed by accountants and lawyers. In 2012, one of the last US resident members and an officer of the Defendant, tasked the Plaintiff with re-establishing the colony. The Plaintiff began this work but eventually, with the permission of the leadership in the US, established a “way station” in Hawaii. The “way station” in Hawaii was to be a “resting place” between the colony in Australia and the headquarters in Michigan for use of the faithful as they returned from Australia to “repopulate the earth.” However, the Defendant accused the Plaintiff of lavish living in Hawaii using the Defendant’s money and property. The Defendant excommunicated the Plaintiff and recovered its property. A Settlement Agreement in 2013 between the Plaintiff and Defendant included a clause in which the Plaintiff “irrevocably relinquished” membership and resigned all offices. The officer of the Defendant that originally tasked Plaintiff with re-establishing the Australian “colony,” authorized establishment of the “way station” in Hawaii, then excommunicated Plaintiff, died. However, prior to her passing she appointed successors. The Plaintiff sued alleging that the appointed successors were mere interlopers and that the Plaintiff was the last true believer and should be reinstated as an officer or trustee. The Plaintiff alleged he faced the “specter of being deprived of salvation.” The trial court held the Ecclesiastical Abstention Doctrine precluded a determination by the Court whether the appointed successors were insincere. The trial court held the Plaintiff, excommunicated and having relinquished membership in the Settlement Agreement, had no standing to sue. The appellate court affirmed.
We have reported several cases of founding clergy that left no plan of succession, or had a bad plan, resulting in factionalism and lawsuits. While this odd para-church organization might not be much of an example to the average church, the succession plan should be if for no other reason than it held. Founding clergy that personally holds title to the church property has no valid succession plan if the succession is by someone that cannot overcome factionalism and hold the church together.
Article I, Clause I, of the United States Constitution elevated contracts above interference by Congress or the states making contracts as cherished and protected as First Amendment freedoms. Sometimes the contracts at issue arise from religious transactions but if the contracts are sufficiently non-religious in language that Neutral Principles of Law can be applied to enforce them courts may do so.
In Nouri v Dadgar, Slip Op. (Maryland App. 2020), in a consolidated case, two Islamic marriage contracts, known as “Mahrs,” contained a clause, sometimes called a “Sadaq,” that required upon divorce the male spouses to immediately pay $608,000 and $492,750 (the value of gold coins and trips set forth in the “Mahrs”), respectively. The purpose of these marriage contracts was to discourage divorce. The appellate court held the “Mahrs” were not against the public policy of Maryland and objectively determinable terms were enforceable. However, the Court remanded the cases to the trial courts to reconsider whether these particular “Mahrs” met the standards for validity of civil contracts, that because the contracts arose in a “confidential relationship” there had to be a determination that the contract was not tainted by overreaching, unequal bargaining power or other inequities. (This summary may not be doing full justice to this very well-reasoned and documented opinion, which was also an excellent short primer on the subject.)
We reported on a Connecticut court opinion from 2019, Tilsen v Benson, Slip Op., 2019 WL 6329065 (Supp. Ct. Conn., 2019), in a post entitled Church Prenuptial Agreements. In Tilsen, the prenuptial Torah based “ketubah” was not deemed enforceable in a civil court because of the Ecclesiastical Abstention Doctrine. The Torah agreement required interpretation by experts in Torah law. In the Maryland case reported above, the “Mahrs” were held to be Islamic marriage contracts and not pre-nuptial agreements.
In our last report, the question of whether the federal statutory protections of private employer retirement plans applied to para-church organizations was answered with a clear ruling that the para-church organization qualified under the statutory “religious exemption.” Within days, the same para-church organization, albeit in a different state and therefore a different federal court jurisdiction, qualified under yet another statutory “religious exemption.”
In Boydston v Mercy Hospital Ardmore, Inc., Opinion and Order (WD Okla., 2020), the Sisters of Mercy were yet again determined to qualify under the statutory “religious exemption” found in the Civil Rights Act of 1964 (aka “Title VII”), 42 USC §§2000e et seq., and in the Oklahoma Anti-Discrimination Act (“OADA”), 25 OS §§1101, et seq. The “religious discrimination and retaliation” claim was dismissed when the Court granted summary judgment on that basis. This Court’s analysis of the religious nature of the Defendant, possibly because of a more detailed factual record due to discovery limited to the religious exemption facts, was more detailed than the 8th Circuit case reported herein in the last post. The Court considered governance documents like bylaws and constitution, declarations by the denominational authority that the Defendant and its religious sponsor were religious entities, and sectarian religious symbols displayed in the medical facility. The Court also concluded that scientific and medical services provided for profit did not necessarily indicate a lack of religious control or motivation. The Court considered the number of nuns serving as members of the board of directors.
The less para-church organizations, regardless of function, are visibly affiliated with their religious roots, the more likely the same result will not be reached. The religious heritage of the para-church organization should be preserved to maintain “religious exemption” immunities no matter that the organization also has a secular identity. A sham will be discovered and should not be attempted.
There are none. Once in a while, someone who never read the First Amendment will sue a church or denomination and claim their doctrine is false and presented only to fill offering plates or emotionally enslave.
In Gaddy v Corporation of the President of the Church of Jesus Christ of Latter Day Saints, Memorandum Decision and Order Granting Defendant’s Motion to Dismiss (D. Utah, 2020), Plaintiff claimed the factual and doctrinal assertions of the church were fraudulent, organized criminal activity, and caused her emotional distress requiring counseling. The federal trial court dismissed the case at the initial pleading stage invoking the Free Exercise and Establishment Clauses of the First Amendment. To avoid that conclusion, Plaintiff argued the fraud lurked in the misrepresentation of historical fact upon which doctrine or belief rested and not the doctrine or belief itself. The trial court held there was no difference.
As long as the First Amendment is read literally and generally applied as read, the freedom to believe and preach will remain unfettered. Churches should be as stalwart in protecting the free speech rights of others as their own. Churches that tacitly approve suppression of the speech of “they” will find that someday soon such churches will become “they,” too. Everybody is protected or nobody is safe.