RELIGIOUS CERTIFICATIONS AND LICENSES

Some denominations ordain, license or certify persons as credentialed or authorized to engage in specified religious rites or activities.  These same denominations usually accord themselves the power to revoke that which they have given.  The revocation might be based on religious doctrines or it might be based on secular sounding reasons like failure to renew or failure to pay fees or dues.  Revocation or withdrawal of such permissions to engage in specified religious rites or activities can effectively prohibit the formerly licensed person from engaging in any official role in the denomination.  There is not likely to be any recourse in the event of revocation or withdrawal of permission to act.

In Bacharach v Star K Certification, Slip Op. (Mary. App. 2022), the trial court dismissed the Plaintiff’s tortious interference with contract claim on Ecclesiastical Abstention Doctrine grounds and because the Plaintiff’s corporation, which was also a named party, was “forfeited” by the state, probably for the failure to renew its incorporation.  Plaintiff alleged Defendant was the third-party vendor that the denomination used to oversee certification of adherence to the laws of “Kashrut,” and certification to act as “mashgiach,” “someone who oversees the preparation of kosher food.”  The Plaintiff’s certification to act as “mashgiach” was withdrawn.  The Defendant denomination allegedly notified Plaintiff’s business contacts that Plaintiff was no longer certified as a kosher caterer.  The appellate court affirmed the dismissal and held the determination of whether Plaintiff was wrongfully decertified required an inquiry into religious doctrine governing kosher food preparation.  The appellate court also affirmed the dismissal of the claim by Plaintiff’s corporation because it was a “forfeited” corporation that could not maintain a lawsuit.

The Plaintiff in the reported case may have been certified by a different denomination or different group within the denomination as well as by the Defendants but the opinion’s recitation of that fact is stingy on the details.  Nevertheless, where available, certification by more than one authoritative source would not be a bad practice.  Falling out of favor with one group might not end the ability to serve or minister if it is possible to remain in favor with another.  The notification of Plaintiff’s business contacts by the withdrawing licensure authority in the age of transparency, however, may no longer be actionable if the licensing authority had some duty to speak regarding termination of the licensure.

THE NO BYLAWS PROVISION SCENARIO

We have repeatedly reported church governance cases that turned in favor of the church because the church had and followed its own governance documents, of which bylaws are usually a center piece.  Of course, implicit was the assumption the bylaws were complete in dictating the policies and procedures of church governance to be followed.  Not all bylaws are complete.

In Auguste v Hyacinthe, Slip Op. (FL App. – 2022) the trial court dismissed the case based on the Ecclesiastical Abstention Doctrine.  The Plaintiffs alleged the procedure used to reconfigure the board of directors violated state law and that there were no provisions in the bylaws that supported the procedure for ouster used.  The procedure allegedly used by the Defendant, after the founder died, was filing unauthorized annual reports with the Florida Department of State listing himself as director and pastor of the church and removing the plaintiffs as church officers.  The Plaintiffs alleged the filing arose from a meeting of a “small portion of the church membership,” held “secretly,” and a resolution ousting Plaintiffs adopted by a rump of the board.  The Defendants argued that no provision in the church bylaws provided for this removal procedure and that Neutral Principles of Law, such as the state statute governing non-profit corporations, required other procedures.  The appellate court reversed the dismissal for determinations whether bylaws procedures were in existence or followed. Church founders should have carefully crafted governance documents in place to securely transfer positions and authority to the appropriate successors.  Church bylaws, like any other corporate non-profit, should have governance documents drafted or at least edited by a lawyer.  Governance documents should clearly specify the procedures for hiring or appointing and terminating church employees, including senior pastors, and other church officers.  What is not needed in the first generation of leadership will undoubtedly be essential in every other.

ATHLETE ENDORSEMENTS

While in these reports we do not often stray from reporting court opinions released for public consideration, an Associated Press article by Jim Vertuno and Pat Eaton-Robb that appeared in a USA Today affiliate on October 1, 2022 seemed to require some notice.  The reporters stated:  “The new world of college athletes getting paid for endorsements has created a rapidly expanding pop-up industry:  Brand new nonprofits that set up athletes to promote charities for a fee.”  The article indicated the federal government was scrutinizing some of these “brand new nonprofits.”  Of course, old charities would have an easier time of it.  That would include churches.

Imagine next week’s worship services described in glowing sports terms by a locally famous high school or college athlete.  In my state, in which sports figures are all but demigods when they are winning, and discarded when they are not, many churches, parachurch organizations, church schools and denominations may one day soon be signing athletes to such endorsement deals.  The debate about whether such advertising and endorsements are a good thing will be left for others.  The debate about whether such deals would be good for high school and college sports will be avoided altogether in this report.

These deals will attract existing participants or members of the long existing non-profit to fulfill two desires:  pay their favorite athlete and support the mission of the non-profit.  That they will also get a tax deduction might simply be a bonus.  If the member or participant exerts too much influence as to the choice of the athlete or the deal between the non-profit and the athlete, taxing authorities may have grounds for arguing the money paid was not a donation at all.  On the other hand, the member or participant may have some indirect “say” in these matters while on a governance board upon which they are otherwise already serving.  The athlete may even be a product of the youth group.  Donations made early in the tax year and paid out later in the tax year might not seem directly related either to donor intent or the endorsement deal.  Donors who are not acknowledged as “sponsors” of the deal may fare better than donors who are acknowledged, even if everyone in town or in the non-profit entity knows the donor.

SHIFTING SAND

In decades past, denominational doctrines often seemed established, immutable, and immoral to oppose.  Denominational doctrines seem to be challenged, and in some cases abandoned or revised, in growing numbers.  Whether in the distant future these changes will be viewed as aberrational or merely a form of maturation remains for others to determine.  Opposing denominational doctrines in court has always faced the all but insurmountable barriers of the First Amendment:  the Ecclesiastical Abstention Doctrine (doctrine), the Church Autonomy Doctrine (governance) and the Ministerial Exception (“ministry” employment).

In Payne-Elliott v Roman Catholic Archdiocese of Indianapolis, Inc., Slip Op. (Ind. 2022), the Supreme Court of Indiana affirmed the trial court’s dismissal of the case.  The Court concluded the plaintiff pled himself out of court by pleading facts that established the Church Autonomy Doctrine defense.  The opinion reported the Plaintiff’s same sex marriage led to two different results.  The Plaintiff’s spouse was an elementary school teacher at a Catholic elementary school.  The elementary school refused to terminate the spouse.  The archdiocese removed the school from the denomination.  The archdiocese ordered the Catholic high school employing the Plaintiff to terminate Plaintiff and they did so.  Apparently, the high school entered a financial settlement with the Plaintiff.  However, the case continued against the archdiocese.  The Supreme Court of Indiana set forth the elements of the Church Autonomy Doctrine affirmative defense as prohibiting a court from penalizing via tort law a communication among church officials on a matter of internal church policy (i.e., governance) that does not culminate in a criminal act.  Because the Plaintiff pled that the Catholic high school was commanded by the denomination to terminate Plaintiff due to Catholic doctrine, the Church Autonomy Doctrine elements were held satisfied resulting in dismissal.

While the legal outcome of the reported case was not surprising, we have reported many similar decisions and few exceptions, the reported case was startling because of its “Birdseye view” of denominational doctrinal slippage.  A Catholic school stopped being a Catholic school.  Another Catholic school paid a settlement to avoid further litigation.  Only the denomination continued until the case was concluded.  Only future generations of church members will be able to judge whether choices like these were reached following immutable doctrine or reflecting changing doctrine.