Parachurch organizations, religious entities that are not churches or non-profit entities that are directly or indirectly owned and controlled by churches, struggle at times with whether the Ministerial Exception or the Ecclesiastical Abstention Doctrine, both arising from the First Amendment, apply to various legal questions. This struggle is most pronounced when dealing with state law tort, employment or contract questions. It is less pronounced with regard to federal law claims, or at least, it should be.
In Aguillard v Louisiana College, Ruling, Slip Op. (WD La., Alexandria Div., 2018) the federal trial court granted summary judgment against the Plaintiff to terminate the Plaintiff’s federal employment law claims based on the religious organization exemption found in Title VII, the Civil Rights Act of 1964, at 42 USC §2000e-2(e)(2). The opinion’s analysis is instructive of the analysis probably needed in those circuits that have not considered the religious organization exemption. In this case, the Plaintiff claimed he was terminated for his religious beliefs by the religious school. Thus, Plaintiff’s claims for disability discrimination, religious belief discrimination, and age discrimination were all summarily dismissed. It should be noted termination was not simply by executive fiat but was also confirmed through the school’s own tenure required due process procedures.
Such cases will probably be determined in the first instance by the clarity with which the religious identity or purpose of the parachurch organization is enshrined in the founding documents and perpetuated in the policy and procedure manuals of the entity. Such religious identity should not be merely assumed because the organization has been around for a long time. Documents lacking clarity of identification should be amended.
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.