In a church tradition or denomination that carefully proscribes who may be a “minister,” “priest,” or “pastor,” persons that assist in worship, sacraments, church schools and other vital roles may not have a title of office that would neatly fit in the Ministerial Exception. Often the question with such employees is whether their role is sufficiently vital to religious services and advancement of the needs of the faith to be considered ministerial even if their title is not clearly related.
In Menard v Archdiocese of Boston, Slip Op. (Mass. 2020), the trial court considered the plaintiff’s employment contract and an article the Plaintiff wrote for the church newsletter in which the Plaintiff described the duties incumbent upon Plaintiff’s position. The consideration led to dismissal of the lawsuit pursuant to the Ministerial Exception. The appellate court affirmed. The Plaintiff was a Director of Music Ministries and could not be a priest or pastor. But, her duties as Director of Music “presuppose a significant knowledge of her faith’s musical canon, and the ability to transmit that knowledge and “convey the Church’s message.”” The decision was based on the newest United States Supreme Court pronouncement in Our Lady of Guadalupe Sch. v Morrissey-Berru, U.S. Supreme Ct., Nos. 19-267 & 19-348, slip op. at 18 (July 8, 2020) which taught that “what matters, at bottom, is what an employee does.”
In cases of this type an employment contract is an invaluable documentation of the religious and secular duties of the employee. In this case, because the employee was of some longevity, the employee wrote a church newsletter article that dovetailed with the contract and explained the duties in the Plaintiff’s own words. Church newsletters are often invaluable sources of this type of information. Oddly, many churches do not keep file copies (paper or digital).
We have reported many times the attempts of local churches, some clever and some blundering, to slip the ties that once happily kept them snug in the denomination once those ties became odious. Almost uniformly, those efforts have failed. Hierarchical denominations receive greater deference regarding internal decisions about property and ministers.
In Dong San Church Corporation v Park, Slip Op. (Cal. App. 2020), the trial granted summary judgment to the denomination in a lawsuit for declaratory judgment and to quiet title. The Court of Appeals affirmed. The local church was a member of the denomination for more than two decades. The local church was led by an interim pastor that was not confirmed as pastor by the denomination because of legal issues unresolved in South Korea. To keep the interim pastor, the local church sought disaffiliation with the denomination. The interim pastor and some members of the local church disassociated themselves from the denomination. The courts held that the disaffiliation effort by the local church was not effective under the denominational governance documents. The disassociation of the interim pastor and some of the members did not change the affiliation of the local church. The denomination appointed a new pastor and the court quieted title in favor of the denomination.
The denomination probably should have not have permitted the interim pastor to serve as long as he did given the serious nature of the unresolved legal issues in South Korea. Appointment of a replacement pastor should have been the choice rather than the wait and see choice made by the denomination. Waffling on employment or appointment decisions very often leads to protracted litigation.
Even in light of recent Supreme Court decisions regarding federal employment claims against churches and parachurch organizations, some common law tort claims remain actionable against churches. We have reported many times regarding defamation claims. Defamation that is solely internal in the organization or in the web of organizations that make up a denominational authority is not likely to remain actionable long if it is at all. Defamation between different organizations in the same denomination, or to outsiders, may or may not be the foundation of viable claims.
In McRaney v North American Mission Board, Southern Baptist Convention, Slip Op. (5th Cir. 2020), the United States Court of Appeals for the 5th Circuit reversed the dismissal entered by the trial court. The Court of Appeals held that the dismissal was premature because the Complaint, the first document in a federal civil lawsuit, stated a civil claim and did not on its face appear to raise ecclesiastical issues. Also, the case was not brought as an employment claim. The only theories of recovery espoused were for intentional interference with business relationships, defamation, and intentional infliction of emotional distress. The Plaintiff was formerly employed as the Executive Director of the General Mission Board of Maryland / Delaware. The Plaintiff alleged the Defendant made false statements about him that caused him to be fired from his position, caused him to be “uninvited” to speak at a large mission symposium, and posted a picture of him at the Defendant’s offices to malign him. On remand, discovery may still lead to dismissal of the case by motion for summary judgment, in which more may be considered than merely the contents up to the four corners of the Complaint.
The lesson to be learned is that there are litigation risks other than wrongful termination and federal employment law claims. While defamation cases are rarely successful, churches communicating negative information about a former employee to a prospective new employer should do so only to protect the public good rather than merely because an employee fell out of favor or left hard feelings.
Lawsuits against church schools regarding federal employment law claims (and most state employment law claims) were addressed in the prior post about the most recent United States Supreme Court pronouncement. Apparently, the ecclesiastical abstention doctrine may also apply to expulsions from church schools.
In Doe v Archdiocese of Galveston – Houston, Slip Op. (Tex. Civ. App., 1st Dist., 2020), the church school expelled a first grader and a pre-kindergartener. The first grader had behavioral problems that, while they might have been a bit more tempestuous than the average first grader with such problems, were not insoluble. Nothing was said in the opinion about the behavior of the pre-kindergartener. Nevertheless, the parents and the first grade teacher were not on the same page so the parents installed in the first grader’s pants a recording device so the parents could either, both were allegedly, (1) catch the teacher verbally abusing the child or (2) record the child’s misbehavior for further study and intervention. The recording device was discovered when the child complained that his pants were uncomfortable. The expulsion followed. The appellate court affirmed dismissal of the case on ecclesiastical abstention grounds and the appellate court affirmed. The opinion contained a rather broad statement of Texas law: “The parties do not dispute that both St. John Paul II School and the Archdiocese are faith-based institutions, that [the principle and teacher] were employees of the school, and that [the school coordinator] acted on behalf of the Archdiocese. Therefore, all the defendants are protected from governmental interference by the Free Exercise clause of the First Amendment to the United States Constitution.”
There should not have been a lawsuit in which allegedly dysfunctional parents were pitted against an allegedly dysfunctional church school. The case should have been dismissed for failure to state a claim, even in Texas, without resort to the First Amendment. Further, for the behavioral problems, rather than simply complaining weakly to the parents, that may not have been effectively parenting for a variety of reasons, the church school should have engaged an outside licensed professional counselor for consultation with the parents. The idiocy of turning a child’s pants into a surveillance device might never have come about. An archdiocese as large as this one had those resources at hand, probably for free or a nominal charge, and even the smallest church school can locally obtain those services in this day and age. To use the lofty ideal of church state separation to end this lawsuit was demeaning, even if correct.
Nevertheless, every employee of the archdiocese and their conduct was shielded from review in a tort lawsuit about allegedly secular behavior (no mention religious directed misbehavior per se was listed in the opinion). The result is that litigation against church schools in Texas will be highly problematic no matter what the underlying reason.