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.
As we have reported, the battlefield regarding First Amendment religious rights is expanding beyond traditional church organizations to parachurch organizations. Classification of parachurch organizations is difficult in secular eyes because the mission of the parachurch organization may seem secular, i.e., homeless shelters, food pantries, student organizations, etc. Secular ears seem to hear most acutely in places where free speech was once thought to roam freely such as universities. As the opinion reported here quoted, “a religiously affiliated entity is one whose mission is marked by clear or obvious religious characteristics.” Generally,
In Intervarsity Christian Fellowship v Wayne State University, Order and Order Granting Plaintiff’s Motion for Partial Summary Judgment, etc., (ED Mich., SD, 2021), the federal district court in an 83 page opinion considered whether Wayne State violated the First Amendment by rejecting the registration of the Plaintiff as a campus organization. The reason given by Wayne State was that the Plaintiff violated the university “non-discrimination policy” by “requiring that its faith leaders profess to be faithful.” The Plaintiff carried out its mission by engaging student leaders. The student leaders were provided training and required to “undergo an apprenticeship” to become qualified to “provide religious teaching and spiritual guidance to other members.” The District Court held that the Plaintiff as a parachurch organization had the “deeply ingrained right of religious organizations to select their leaders and messengers.” The District Court also noted that the university ignored similar qualifications for leadership in secular, political and other religious organizations. The religious discrimination by Wayne State precluded the plaintiff’s free use of campus meeting rooms and other campus facilities.
The decision reported is interlocutory and partial. The court may make other decisions. The lesson for parachurch organizations interacting with secular forums is that freedom is not free and must be earned through some level of militancy. Wayne State stopped viewing a 75 year old parachurch organization as part of its diversity effort while including other secular, political and religious organizations even though all of them required their student leaders to be adherents to beliefs identified in the governance documents of the organization. Others will do likewise. If discussion does not lead to an accommodation or understanding, then litigation may be required.
The United States Supreme Court on or about May 11, 2020 heard argument in two cases appealed from the United States Court of Appeals from the 9th Circuit (the west coast states) in which two particular school teachers at church schools were held not to be sufficiently ministerial to be barred from making federal law based employment claims. The scope of the Ministerial Exception to employment law claims has been litigated since the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171 (2012). In that case, the Supreme Court held that the teacher in question was also a minister which triggered the Ministerial Exception and barred her claims.
In Gregory Tucker v Faith Bible Chapel, Order on Motion for Summary Judgment (D. Colo, 2020) the federal trial court converted a Motion to Dismiss to a Motion for Summary Judgment because the motion appended three documents, two of which were the employment contract and the teacher handbook. The employment contract appointed the Plaintiff as “Chaplain” in addition to duties as a science teacher. The Plaintiff was allowed to chose among three proposed titles for the new duty, among which was “Chaplain,” but chose “Director of Student Life.” The Plaintiff claimed that title sounded the least religious as the motive for selecting it. The teacher handbook required teaching from a “Christian worldview” but Plaintiff claimed the school did not define it or provide training in a required curriculum. The Plaintiff claimed that the lack of specificity in theological content, and the explicit prohibition of promoting a single “Christian perspective over another” meant that the position was not religious and therefore, not ministerial. The trial court overruled the Motion for Summary Judgment and the case will proceed to discovery, and possibly trial.
Church schools of non-denominational churches have difficulty in secular courts because the idea of the Bible as the sole source of religious perspective is not understood as “specific” but is pejoratively assumed to be amorphous. Church schools of non-denominational churches that do not substantively document their religious perspective will be deemed to be without one. In the age of the internet and “distance learning,” this seems especially difficult to the secular court to understand. Just as teachers in public schools are required to have “professional development” time, so too should teachers in church schools. The difference is the “development training” of a church school teacher should include a substantive and identifiable religious component. For a position like “Director of Student Life,” it should also include substantive religious counseling training. While the local church owning a church school may not have the resources to provide it all inhouse, there are numerous Bible colleges that would provide the resource.