The law of defamation during church disciplinary actions is complicated by the multiplicity of approaches taken in each state and because such cases are rare. Indeed, the cases are so rare that changes in societal mores and norms, not to mention law, have probably changed dramatically between the incidence of such cases.
In Laguerre v Maurice, 2020 NY Slip Op 07877 (NY App. 2020), the defendant pastor allegedly told the 300-member congregation during a “membership” meeting that the Plaintiff, an Elder in the congregation, was a homosexual who viewed gay pornography on the church’s computers. The Plaintiff sued claiming the statement by the pastor was defamatory per se. The defendant pastor alleged the statement, if made, was part of an ecclesiastical disciplinary process over which the court had no jurisdiction. Further, the defendant pastor alleged the statement, if made, was made to the membership and was protected by a common interest privilege. The Court held there was no ecclesiastical issue because neutral principles of law would suffice. The Court held the Plaintiff’s allegation the pastor’s statements to the membership were made with malice made any common interest privilege inapplicable. The malice alleged was that the statements were only made to remove Plaintiff as an Elder and force him out of church membership and not to vindicate a moral or religious position. Thus, the case was not outright dismissed. However, the Court affirmed dismissal of the theory of recovery for defamation per se, overruling a prior 1984 decision of the Court along the way, by holding allegations of homosexuality were no longer defamatory per se. The Court held state public policy no longer considered allegations of homosexuality defamatory per se.
Unless denominational or church governance documents require statements about the basis of church disciplinary actions to the membership, rather than just the church leadership, such statements should be avoided for obvious reasons. Churches that deem homosexuality as immoral must still exist in a society that no longer permits discrimination against homosexuals. That does not require abandonment of morality, but it does require intelligent co-existence. See, 1 Timothy 5:19-20. Most churches have moved well past the era in which divorced persons were ostracized and so, too, might that happen regarding other mores.
Internal church investigations that involve only church employees and church members may be immune from judicial intrusion. Having stated that generality, no one reading this should for a moment doubt that statement does not apply to child abuse including sexual misconduct with a child. Child abuse is a crime. It is inherently a violent crime. The First Amendment will not shield a violent crime. However, nearly all other internal church investigations, disciplinary actions, and terminations of employment or membership will be shielded by the Ecclesiastical Abstention Doctrine. That will be true in the end whether a jurisdiction treats that First Amendment doctrine as an affirmative defense or a limitation on jurisdiction.
A recent example is the opinion issued in Orr v Fourth Episcopal District African Methodist Episcopal Church, Slip Op. (Ill. App. 2018). The Plaintiff, an employed minister, faced a charge of sexual harassment not involving a child. The internal church investigatory process was halted while the matter was in litigation. As part of the process, the minister was transferred from a church in Illinois to another state. The trial court granted summary judgment on Plaintiff’s defamation theories and the appellate court affirmed. The hierarchical denomination in the case at the time of the allegations was governed by a “Book of Discipline.” The Book of Discipline established a complex system for reporting and internally adjudicating internal sexual harassment claims. The process at the time included a “judicial committee” that operated “like a grand jury,” a “trial committee,” and a “trier of appeals.” The process was confidential and there was no allegation it had not so remained.
The internal investigation will be shielded if it remains internal to the church. “Leaks” are not the issue in this report but could be in some other case. The issue will be “public pronouncements.” Internal announcements will likely be shielded as long as they are made only to leadership or only to actual church members with a need to know. The ruling of the church due process system, no matter how modest or elaborate, may be made public and may be shielded, but the exact care to be taken in implementing a final decision public announcement is not the subject of this report.
There are no statistics available, and if they were asserted their reliability would be suspect, regarding whether lawsuits involving churches are terminated on procedural grounds as often, more often, or less often than lawsuits involving other private or commercial entities. For one thing, the determination as to the precise role each argument played in a disposition is sometimes determined subjectively by the reviewer of the opinion. That disclaimer aside, many lawsuits involving churches do not proceed to a decision on the merits or even to a point sufficiently definitive to be reported here. Also, many state trial courts are not fully integrated into the world wide web such that interlocutory or even final trial court decisions are rarely sufficiently visible to be reported here. That does not mean they are not important cases or decisions. If we cannot see them, however, we cannot report them. However, sometimes the trial court’s procedural rulings are appealed and become visible.
In Eaddy v Capers, Slip Op. (unpublished) (S. Car., App., 2018), the court of appeals affirmed a trial court’s summary judgment that the excommunication of the Plaintiff was outside the jurisdiction of the South Carolinian courts. The trial court held it did not have jurisdiction over church disciplinary matters under the Ecclesiastical Abstention Doctrine. The appellate court noted that Plaintiff’s new arguments on appeal had not been submitted to the trial court and ruled upon, or otherwise preserved for appellate review. The new arguments were that (1) the church leadership had not been properly elected so they did not have authority to conduct church disciplinary proceedings and (2) that the Ecclesiastical Abstention Doctrine as interpreted by South Carolina did not apply to a congregational church like the defendant. But, because the arguments were not preserved for review, they could not be considered.
Preservation of arguments for appellate review is fundamental but trial counsel sometimes believe they have when they have not. That is a cautionary thought for church lawyers, too. Before trial level proceedings close, it may be necessary to review motions and court rulings on them issued many months or even years previously rather than rely on sometimes fallible memory. Making sure court rulings from the bench have been suitably memorialized in writing in the court record can also be a challenge if some of the proceedings were oral argument.