While it might seem on its face that in the present state of the law there is no longer real doubt that the “worship pastor,” typically the music minister, has ecclesiastical duties even if exposition from a pulpit is not among them, see, Our Lady of Guadalupe Sch. v Morrissey-Berru, 140 S.Ct. 2049, 2055 (2020), some questions still arise. For example, can a court decide at the beginning of the case with nothing but the Complaint, the first pleading, in the record that the job duties are sufficiently ministerial to invoke the Ministerial Exception of federal discrimination statutes like Title VII?
In Chris v Kang, Opinion & Order (D. Oregon, 2022), the federal trial court dismissed the case. The Plaintiff alleged he was not hired as “worship pastor” because he was not a “native English speaker” and “not familiar with American culture.” The Court held the claim was barred by the Ministerial Exception even though the Plaintiff’s Complaint was the only thing before the Court. The Plaintiff also asserted that Oregon state law did not yet recognize the Ministerial Exception. The federal court held that the Ministerial Exception was also derived from the First Amendment and as a constitutional level protection barred the state tort claim, too.
The seemingly secular job qualifications, “native English speaker” and “familiar with American culture,” if they were required by the hiring church in the reported case, did not disqualify the hiring decision about a pastor or minister from protection by the First Amendment. The hiring church should not have leaked any requirements beyond their written job description. The hiring church should not have communicated to an unsuccessful applicant any reason for the decision not to hire.
In our reports we often mention the Ecclesiastical Abstention Doctrine. The Doctrine is a subset of the protections afforded by the First Amendment. Essentially, the Doctrine enforces the First Amendment’s prohibition of “law respecting an establishment of religion.” One of the other shorthand expressions of the Doctrine not used as much is the “Church Autonomy Doctrine” (“CAD”). CAD usually arises in cases involving hierarchical churches that internally adjudicate their own internal disputes. Once a hierarchical church has through its own process decided a dispute involving its own members, its own property, and its own personnel, CAD prevents the dispute from being heard in a secular court.
In Catholic Diocese of Jackson v De Lange, Slip Op. (Miss., En Banc, 2022), the state trial court refused to dismiss the case holding the state law employment termination claims of the Plaintiff could be decided by application of secular legal principles. The Mississippi Supreme Court reversed and dismissed the case. The Plaintiff was the Chief Financial Officer of the diocese. The position was enshrined in the formal Canon Law of the denomination. Termination prior to the end of a five-year term had to be based only on “grave cause.” The Plaintiff appealed his termination through the hierarchical system, was placed on administrative leave, but his termination was ultimately implemented. Plaintiff alleged in court the termination was wrongful because the reasons for termination were false, defamatory, and did not constitute “grave cause” as required by Canon Law. The appellate court held that to determine whether the reasons for termination were sufficient “grave causes” would require inquiry into the church doctrine that defined “grave causes” in Canon Law. Such an inquiry would violate the Autonomy Doctrine, the court held.
The Ministerial Exception was not an issue in the reported case because the wrongful termination claim was not based on federal or state anti-discrimination laws. Also, whether a Chief Financial Officer would be considered a “minister” was not a question reached. Thus, the case reported was narrowly focused on the scope of church autonomy in employment matters. In most states, churches will preserve their autonomy in employment matters by documenting carefully that all church employment is “at will” and avoiding employment contracts that might be used to thwart the At Will Doctrine.
Rare concurring pronouncements by a minority of the Justices of the United States Supreme Court are not legally binding but may be educational. The United States Supreme Court hears a mere handful of cases every year and denies certiorari in the rest. Denials of certiorari are not usually accompanied by any explanation or opinion. Though rare, sometimes there is a published dissent. Rarer still, a filed and published concurrence to a denial of certiorari may be interesting enough to note.
In Seattle’s Union Gospel Mission v Woods, 592 US ___ (2022) (concurrence with denial of certiorari), Seattle’s Union was a parachurch organization that engaged in a number of threads of ministry to the poor. One such thread was a legal aid service. In order to minister through legal aid, the plaintiff had to hire a lawyer. All employees, including any lawyer hired, had to agree to the employee handbook. The handbook imposed a morality clause. The lawyer applicant was a former summer intern and volunteer for Seattle’s Union. The lawyer applied and disclosed that he was a bisexual in a same sex relationship. The applicant could not provide a reference from a local pastor and was not a church member at the time of the application. The ministry leader met with the lawyer applicant and explained the application could not be considered because of the morals clause in the handbook. The lawyer submitted an application to “protest” the ministry’s morality clause and then filed suit. The Washington state trial court dismissed the case based on the Washington anti-discrimination statute’s religious exemption. The Washington Supreme Court reversed holding the statutory religious exemption violated the Washington state constitution. The Washington Supreme Court also reversed for a factual finding by the trial court as to whether a lawyer in a ministry to the poor was a “minister” as contemplated by Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171, 189 (2012) and Our Lady of Guadalupe School v Morrissey-Berru, 591 US___ (2020). Because the decision of the Supreme Court of Washington was interlocutory, and the trial court decision was not yet final, the United States Supreme Court would not accept the case. The Justices’ concurrence with the denial noted the Washington state trial court had yet to address “whether applying state employment law to require the Mission to hire someone who is not a co-religionist would infringe the First Amendment.”
It can be assumed that the cost of the litigation has thus far been staggering and now must “start over” in the trial court. The Mission would be well within its rights to simply abolish its legal aid ministry. It might not clear the Mission of the charge of discrimination, and it might not prevent liability in a jurisdiction like the state of Washington, but it might stop the next case. It is clear that many courts on the west coast simply no longer consider basic constitutional rights meaningful limits in their quest to suppress religious organizations and persons. Even statutory exemptions for religious organizations enacted by the Washington legislature are to be set aside, it seems, in the quest of west coast courts for hegemony.
While it is abundantly clear that courts will not intervene in nearly all claims regarding employment of clergy, the question arises about whether the clergyman (or clergywoman) that loses employment with a secular employer because of the loss of clergy credentials. In that instance, is there a viable claim?
In Iwuchukwu v Archdiocese for the Military, Memorandum Opinion (D. DC, 2022), the Plaintiff was a clergyman but employed by a federal agency and terminated. The employment required the Plaintiff, serving as a chaplain, to have the credentials of clergy without which the employment was summarily terminated. The federal agency was not named as a Defendant. The denomination claimed it revoked the credentials based on an unresolved allegation of sexual misconduct at a prior employment a decade earlier. The Plaintiff submitted a polygraph examination report that seemed to confirm the Plaintiff’s denial of the allegation. Also, some years before this case, the Plaintiff filed a complaint against the federal agency with the Equal Employment Opportunity Commission (“EEOC”) alleging a hostile work environment. Plaintiff claimed revocation of his clergy credentials was in retaliation and had nothing to do with the clergy credentials. In effect, Plaintiff was arguing his claims were reviewable under Neutral Principles of Law. The federal trial court dismissed the case as barred by the Ecclesiastical Abstention Doctrine because religious organizations could unilaterally decide who would speak for them as clergy. The court also noted the federal employment discrimination statute exempted religious organization employers.
Because many clergymen and clergywomen work in alternative employments with parachurch organizations or even secular entities, the facts presented in the reported case may be less unique than might be expected. For example, many hospitals have chaplains. Clergy that are accused of sexual misconduct are not well served by relying on denominations or parachurch organizations to clear them. Innocent accused clergy have no choice but to immediately seek a judicial declaration of innocence if reputable counsel believes there is a reasonable chance for a favorable outcome, or expect the loss of their former career.