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.
Regulatory investigations of all kinds are unsettling because they are usually conducted in a manner without the due process safeguards found in a court. The right of confrontation is blunted or non-existent. The regulator seems to be the prosecutor and the judge. The common sense of a jury, much less its neutrality, are often perceived as missing. Things outside of the box or the norm tend to make regulators insecure and defensive. Regulators must navigate the shoals of their own too limited budgets and too expansive mission objectives.
In Trinity Christian School v Commission on Human Rights, Slip Op. (Conn. 2018), a church employee filed a discrimination complaint against the church before the state agency. The state agency commenced a proceeding. Presumably, the proceeding was autonomic process and it did not appear from the opinion to be the result of an investigation. The church moved to dismiss the proceeding urging the Ministerial Exception of the First Amendment. The motion was overruled and an appeal to the state trial court resulted in dismissal of the appeal because the Ministerial Exception was deemed to be an affirmative defense and not an immunity. The church returned to the state agency proceeding and submitted a second motion to dismiss based on the state statute that required state burdens on free exercise of religion only when there is a compelling state interest. This second motion was denied both by the regulatory agency and the trial court. The Supreme Court of Connecticut affirmed the trial court holding that the state statue was not a statute of immunity but was a “rule of construction.” Thus, the church was returned to the state regulatory proceeding to assert the Ministerial Exception and to argue with the regulator whether the regulatory mission was a compelling state interest.
Motions to dismiss are an excellent strategy for degrading the ardor of Plaintiffs of limited resources. It is also the only means to weed out implausible claims. In a regulatory proceeding, once that tactic is exhausted, the case must be built with the same eye to creating a record that would be made in court. Indeed, this may be the “trial” and the only “day in court” the church may have. Sometimes this must be done on very short deadlines and without the full discovery tools available in court. Sometimes this must be done in the face of defensive and hostile regulators that are activists for one cause or another. Most regulators, unless they happen to be a member of a church in the same tradition as the church before them, will be completely unfamiliar with church theology or traditions. If the main defense is the Ministerial Exception, then the religious duties of the former employee must be fully documented in excruciating detail. While the expenses mount, the church may have to consider an investigation of the regulators and their history with other churches that have been brought before them. The separate of church from state is a permeable wall when least expected.
Church pastors often suffer from an imposed “vow of poverty.” Congregations that are not faithful donors often remain chronic. Founding pastors often remain for their entire career at the same church never subjecting the church to the reality of the marketplace. Pastors that make the mistake of residing in a “parsonage” lose the home equity most middle-class Americans treat as a civil right. Founding pastors often fail to install retirement plans until late in their career with no way to “catch up” without offending the good folks at the federal and state taxing authorities. However, when a pastor or a conscience driven church leadership tries to address the problem with inadequate resources and inadequate professional advice one or the other, or both, enter into arrangements that are questionable. The pastor, and usually the pastor’s widow, end up without a solution, or worse, with a ruined legacy.
In Jenkins v Refuge Temple Church of God, Slip Op. (SC App. 2018), the founding pastor appointed board members, however, the bylaws required congregational election. The pastor asked the board to enter into an employment agreement with him that contained a survivorship clause whereby his widow would receive income for life. The employment agreement with the survivorship clause was not voted upon by the congregation nor even revealed to the congregation. After the pastor died, the widow was paid by the congregation for six years. Financial necessities convinced the successor pastor and church leadership to phase out the payments. They believed the widow’s payments fulfilled their obligation as set forth in church tradition for such situations and did not learn of the written contract until the litigation for breach of the contract was brought by the widow. The trial court entered judgment for the widow on a breach of contract theory, apply neutral principles of law, but the Court of Appeals reversed. The failure of the board to be properly elected was fatal to the enforceability of the contract. That the church had made monthly payments to the widow did not estop the church under the laches doctrine because the church did not know about the contract.
Other financial arrangements might have worked far better than a “secret” contract adopted by a board of dubious legal authority. A Certified Public Accountant, a financial planner, or even an insurance specialist could have suggested many options and revealed their relevant costs. The pastor and the church may have had a moral obligation to the widow. Whether either fulfilled that obligation is a moral question not within the scope of this report. During the pastor’s ministry, a retirement plan should have been in place other than the employment contract survivorship clause. Both the pastor and the church leadership should have enacted it. A life insurance employment benefit, for example, would have been the easiest solution.
Fortunately, rogue pastors are rare. In church splits, one side or the other may view a pastor as an enemy or even evil, but even in those situations the split is usually the cause of the perception. A truly rogue pastor is a dangerous insider that manipulates property or members for personal gain or gratification. Sometimes it is both.
In Bandstra v Covenant Reformed Church, Slip Op. (Iowa, 2018), the pastor was sentenced to five years in prison for sexual and financial exploitation of members being counseled for personal issues. The church leadership immediately “accepted the resignation” of the pastor when they learned of it. However, in the aftermath, the church leadership struggled with whether the victims could be in part to blame for violating their marriage vows. Moreover, faced with a rogue pastor completely beyond the competence of the average lay church leader, and most professionals, the leadership was sued for what may or may not have been missteps, and on remand a trial or settlement may finally decide it. Also, the church leadership was sued for failure to supervise the rogue pastor because his misconduct lasted for several years.
Church leadership should recognize that most pastors are simply not trained for the role filled by licensed professional counselors, psychologists and psychiatrists. A pastor trying to fill these roles should be strongly dissuaded if not outright prohibited. Also, if “spiritual counseling” exists at all, it should be performed only under appropriate conditions and at the very least not in the basement of the pastor’s home or behind locked doors (unless they are transparent). If the counseling is mishandled, that, too, could be result in a lawsuit. A pastor could sit in on a session with a professional counselor to assist with spiritual concerns. If the member and the counselor are unwilling to do so, the pastor should desist. Once church leadership learns that they are faced with a rogue pastor and terminates the employment, the church leadership must consider the job started and not finished. The church leadership should immediately engage counsel to advise regarding acceptable and unacceptable responses. If members have been victimized, engaging a professional counselor may be wise, too. Mistrust of the psychiatric sciences may leave the church leadership at the mercy of the priesthood of the law when a bit more searching could find an acceptable mental health professional.
Church employees that run afoul of basic moral tenets of church employers are often terminated. Whether this is good church policy or not depends on the situation and depends on the alternatives available. Unfortunately, sometimes it is a financial question because some members may not want their offerings used to deal with the consequences of sin in others who fail to hide the sin.
In Kelley v Decatur Baptist Church, Memorandum and Order (ND Ala., NE Div. 2018), the federal district court did not dismiss the Plaintiff’s case because the Plaintiff alleged she was terminated because she was pregnant in violation of Title VII. She also alleged she was a “maintenance” and child daycare employee. The church alleged the pregnancy was out of wed lock and that the Plaintiff “sowed discord” among the daycare employees, neither reason being governed by Title VII. The church also asserted the first reason for termination was driven by beliefs protected by the Ecclesiastical Abstention Doctrine and the Ministerial Exception Doctrine because the Plaintiff was a “minister.” The case was not dismissed because the Court had to assume as true the allegations in the Complaint at this stage of the proceedings and that at best there was a factual dispute that could not be resolved at this stage. The case will proceed into discovery and possibly other proceedings.
There might not have been a factual dispute if as a new employee the Plaintiff had acknowledged by signing a document describing her position and its duties as ministerial or if there had been an employee handbook similarly acknowledged that contained similar language. Such an employee handbook might have contained a morals clause that expressly listed pregnancy out of wed lock, for the father and the mother, as disqualifying criteria for working with the children entrusted to the church. The troubling aspects of the situation may have been reduced if the church had engaged and paid a license professional counselor to counsel the Plaintiff to reduce or end the “discord” among child care workers, especially if that effort failed, and to help her make the adjustment to motherhood. The Scarlet “S” approach, if the church took that approach as the Court’s opinion seems to suggest, did not seem to work so well.
After the United States Supreme Court’s decision in Alamo Foundation v Secretary of Labor, 471 US 290 (1985) held that persons working for food, clothing and shelter were in fact employees because of their economic dependence entitled to the Minimum Wage, occasional confusion resulted about whether church volunteers were employees. Because church volunteers were not economically dependent, i.e., could walk away and never return, they were not employees entitled to payment.
In Acosta v Cathedral Buffet, Inc., Slip Op. (6th Circuit 2018), the United States Court of Appeals for the 6th Circuit was confronted with a Department of Labor (“DOL”) conclusion that because the church volunteers were spiritually or socially coerced by the pastor to serve as volunteers in the church owned restaurant that they were in fact employees entitled to the Minimum Wage. The DOL had to reach that conclusion because it could not realistically claim the church member volunteers were economically dependent for sustenance as had been the workers in the Alamo case. The 6th Circuit concluded that spiritual or social coercion, if it existed, was not envisioned by the Fair Labor Standards Act (“FLSA”). As a result, church volunteers could not pursuant to the FLSA be employees.
The Concurring Opinion questioned whether the DOL had fully contemplated the implications of inquiring into spiritual or social coercion if such existed. The Concurring Opinion noted such an inquiry would require an inquiry into the religious imperatives for the volunteers contrary to the Ecclesiastical Abstention Doctrine of the First Amendment. Music worship leaders that must hold together church choirs and bands week after week forever can attest to the necessity of the spiritual guilt trip. But, such persuasion, if it is coercive, is not recognized as a prerequisite to a conclusion a worker is an employee rather than a volunteer. (However, the Concurring Opinion did not ask the same question of the federal trial court.)
The Daily Oklahoman, the general circulation newspaper in central Oklahoma, noted the 6th Circuit’s decision in an op-ed piece in the April 23, 2018 edition. The Oklahoman concluded church volunteers could simply find another church. Somehow that did not occur to the DOL or the federal trial court which was reversed by the 6th Circuit.
When the author of this website began practicing, it was the habit to troop over to the courthouse every Friday to attend motion docket. The primary motion heard on those days was the demurrer. A demurrer was like a motion to dismiss but only raised the issue of sufficiency of the petition to state a cause of action. Defendants often filed them to obtain further time to investigate and answer, which meant they were often autonomically overruled. When they were actually heard, the court would read the petition or complaint and if the court thought enough facts were pled to state a cause of action overruled the demurrer. Most were overruled but occasionally the court would act as a gatekeeper and require filing of an amended petition. Demurrers were abolished soon thereafter as the state migrated to its clone of the Federal Rules of Civil Procedure. Nevertheless, vestigial remnants of such doctrines persist. The other rule still in effect in this state is that the order of the trial court will not contain reasons for the decision. To enter an order that “sets forth reasons” is called a “speaking journal entry.” An appellate court may disregard it. If the parties want findings of fact and conclusions of law, they have to request them in advance of any ruling. However, some appellate courts still have similar rules, for good reasons or out of habit.
In St. John Missionary Baptist Church v Flakes, Slip Op. (Tex. Civ. App. 2018), the congregational vote to terminate the pastor was not accepted by the church board members. The pastor and the board continued to handle the assets of the church, including taking out a mortgage of almost a million dollars and preparing to sell other assets. Some of the members filed suit to seek an injunction. The trial court granted a motion to dismiss and plea to the jurisdiction (Texas has not adopted a clone of the Federal Rules of Civil Procedure). The trial court’s order was a single sentence that referenced only one of the grounds put forward to support the motion. The appeal was directed at the only grounds set forth in the single sentence order. The appellate court, however, simply affirmed the trial court because there was no challenge to the other grounds for the motion to dismiss raised by the proponent of that motion even though it was also not mentioned by the trial court’s order. That other ground was the Ecclesiastical Abstention Doctrine. The appellate court ruled that without a challenge before it of an argument made by the movant in the trial court it was waived. One paragraph containing a legal authority or two would have placed it before the appellate court. The dissent was convinced that ordering additional briefing would not have been against the court’s rules.
Followers of Ecclesiastical Abstention Doctrine cases would immediately recognize that while a court because of the Ministerial Abstention Doctrine would not entertain an employment case, the exception might be if the employment case arose only from a violation of the church organizational documents in the process of hiring or termination. This seems especially true when the procedural issue arises from a congregation-controlled church. Of course, the other lesson is for counsel to brief all the arguments raised even if counsel believes some arguments deserve only cursory treatment.