Key Point 2-04.1. Most courts have concluded that they are barred by the First Amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

A California court ruled that a church’s music minister who was dismissed after it was learned that he was homosexual could not sue the church and church leaders for defamation and invasion of privacy as a result of statements made to the staff and congregation. An adult male (the “plaintiff”) was licensed as a minister by a conservative, evangelical church. He was employed by the church as its worship minister for six years, and then became its worship director. As worship director, he directed all aspects of congregational worship.

The plaintiff was homosexual, but never revealed his sexual orientation to any of the church elders because of his perception that the church considered homosexuality inappropriate and in violation of scripture and church doctrine. No one at the church ever asked the plaintiff about his sexual orientation for the many years that he was an employee.

If a church leader was guilty of misconduct, it was the church’s policy to confront that person and tell anyone in the church who was immediately affected by the leader’s ministry of the reason for his or her disqualification from church leadership. Sometime before his own termination, the plaintiff had participated as a church leader in terminating another staff member after discovering he was homosexual, after which he made an announcement to the entire church choir (about 100 people) that the staff member had been removed from his position because he “had admitted to some moral failure.”

The plaintiff eventually informed another church employee that he was a homosexual, and the employee shared this information with the church’s executive pastor. When confronted with this information, the plaintiff acknowledged that he was gay. A few days later, the plaintiff was informed by church leaders that he was going to be terminated from his leadership position and that an announcement would be made to church staff, the choir, and the congregation. Similar announcements had been made to the entire congregation when other church leaders were removed from leadership positions. The plaintiff prepared a written message which he agreed could be read by church elders to the choir. In that statement, he revealed he was gay and said there was now “a fundamental difference in theological perspective between myself and the church” making it “necessary to part ways.”

The following Sunday, the church’s senior pastor informed the congregation that the plaintiff had been terminated as worship director because he had “admitted to moral and sexual actions which according to the Bible, are sin and disqualify him from leadership and ministry in our church.” He told the congregants they did not need to know more details than that. The pastor told the congregation it was important for the matter to be brought out in the open because the church should “hold to the biblical standards of leadership, and when someone in leadership has disqualified themselves and there has been a breakdown in character, we need to be honest with each other and talk about that, and then pray for each other about it.” The pastor then referred to a specific passage in the Bible stating, “if someone is caught in a sin you who are spiritual should restore him … gently, but watch yourself so that you are not also tempted.” The pastor later testified that his statements to the congregation were necessary because the plaintiff’s ministry was “in front of the whole church,” and church members should not learn about problems with church leaders “through the rumor mill.”

The day after the plaintiff’s dismissal, certain church leaders allegedly made the following statements to the church staff, and repeated these statements the following weekend to the whole congregation during four separate services:

• the plaintiff admitted to moral and sexual actions that are a sin;
• he had disqualified himself from leadership through a breakdown in character;
• he was caught in a sin;
• he was a broken man who needed to be restored; and
• he was asked 40 or 50 times if he was a homosexual and he lied and said that he was not.

According to the plaintiff, these statements were false and the pastor and elders who made them knew they were false. The plaintiff complained that these statements destroyed his career in church ministry, and caused him humiliation and severe emotional distress.

The plaintiff sued the church, and certain church leaders, for defamation and invasion of privacy. With regard to his invasion of privacy claim, the plaintiff alleged that he had “lived an ordinary private life” and had “never made any public statement about his sexual orientation,” and “did not consent to have his sexual orientation made public in a derogatory and negative way, or at all.”

The trial court granted the church’s motion to dismiss the case, based on the “ministerial exception.” The courts generally have ruled that they are barred by the First Amendment from resolving employment disputes between ministers and churches. This so-called ministerial exception is based on the principle that “a church’s selection of its own clergy is a core matter of ecclesiastical self-governance with which the state may not constitutionally interfere. A church must retain unfettered freedom in its choice of ministers because ministers represent the church to the people …. They act as the church’s lifeblood. Indeed, the ministerial relationship lies so close to the heart of the church that it would offend the First Amendment simply to require the church to articulate a religious justification for its personnel decisions.”

The plaintiff appealed, and a state appeals court reversed the trial court’s ruling in favor of the church. It conceded that the ministerial exception can apply to claims of defamation and invasion of privacy when based on statements “related to the hiring, firing, discipline or administration of clergy.” But, it noted that “no court has articulated a bright-line test for determining when defamatory and privacy invading statements are related to the termination of a minister.” The court concluded, on procedural or “technical” grounds, that in reviewing a lower court’s dismissal of a lawsuit its review is limited to the allegations contained in the original complaint. And, since it could not determine “from the face of the complaint whether making the statements falls within, or is outside of, the ministerial exception, the [trial court’s] judgment must be reversed.” The court concluded:

[The plaintiff’s] complaint sets forth the essential allegations of his defamation and invasion of privacy causes of action. He alleged that after being terminated from his ministerial position because of his homosexuality, church officials not only publicly announced the fact of his homosexuality to the entire congregation, but wrongly stated that he had lied to them on 40 to 50 occasions denying his homosexuality. The plaintiff alleged the defendants knew the latter statement to be false, he in fact had never been questioned about his sexual orientation, and the defendants made the statements with the specific intent to injure him. But the complaint contains no facts from which we can say there was an ecclesiastical purpose for any statements being made to the entire congregation after the plaintiff’s employment was terminated. We cannot say from the record before us the defendants’ statements were “part and parcel” of the defendants’ ecclesiastical functions, or “inseparable parts of a process of divestiture of priestly authority”. Indeed, the complaint suggests the statements were motivated by the individual defendants’ purely personal enmity towards homosexuals, not in furtherance of any “religious doctrine or theology of the church,” and arguably not in furtherance of an ecclesiastical purpose or part of an ecclesiastical function.

The appeals court sent the case back to the trial court, which again dismissed the plaintiff’s claims. The plaintiff once again appealed to a state appeals court.

The court’s ruling

This time, the appeals court ruled in favor of the church. It concluded:

The trial court properly granted summary judgment because there now is no material issue of fact concerning whether the statements made following the plaintiff’s termination were part of the process of his termination. He did not dispute the evidence put forth by the church that it was part of established church practice to explain to congregants, or members of the church directly affected by the particular pastoral leader’s ministry, the reasons for termination of any pastoral leader after the leader’s termination. The plaintiff himself had participated in such public disclosures about other church staff following termination of their employment. The church submitted evidence demonstrating it routinely gave such explanations to the congregation and that it had a religious purpose in doing so. And in his opening brief, the plaintiff concedes the church’s assertion that once it terminated his employment, “it was required, as an integral and inseparable part of its religious process and mission, to inform the congregation of its religious reasons for doing so, is also clearly a matter of church governance covered by the ministerial exception.”

Statements made after termination

On appeal, the plaintiff asserted that the statements made by church leaders about him were all made after his termination, and that the ministerial exception should not apply to statements made after a minister’s termination. The court disagreed:

As we have already concluded, the exception applies to “otherwise actionable claims of defamation and invasion of privacy, when based on statements ‘related to the hiring, firing, discipline or administration of clergy.'” And that would encompass post-termination acts if they were part of the process of termination. This is not a case, as the plaintiff characterizes it, in which the church’s acts occurred at some remote time unrelated to the termination of his pastoral employment. He was removed from his position on Tuesday, he prepared a statement that he agreed could be read to the church choir disclosing the details of his sexual orientation and explaining why he was leaving his church post, and at church services the following Sunday, [the senior pastor] made his comments to the congregation in accordance with the church’s established practice and doctrine. The undisputed evidence is that [the senior pastor’s] act of explaining to the congregation the reasons for [the plaintiff’s] departure were … “part and parcel” of his termination. Thus, the ministerial exception applies to preclude further judicial review regardless of the otherwise tortious nature of the statements.

“Secular” Inquiries

The plaintiff argued on appeal that the ministerial exception was not applicable in this case. He asserted that rather than tell the congregation the actual reason for his termination, i.e., that his sexual orientation conflicted with the church’s theology, the senior pastor told the congregation that the plaintiff was disqualified from leadership because he had been “caught in a sin,” had admitted to “moral and sexual actions that are sin,” had suffered “a breakdown in character,” and was a “broken man.” The plaintiff claimed that the ministerial exception did not apply to any of these statements because their “truth” could be determined based on purely secular principles and a jury would not be required to consider the religious beliefs of the church in deciding if the pastor’s statements were true or false or constituted an invasion of privacy. Once again, the court disagreed: “The truth or falsity of those statements necessarily requires inquiry into the doctrinal beliefs of the church—something we cannot undertake to do. Furthermore, once it has been established the statements were made in relation to the process of the plaintiff’s termination the ministerial exception applies regardless of the nature of the statements.”

Application. Consider the following points:

1. Perhaps most importantly, the court rejected the plaintiff’s argument that the ministerial exception does not apply to statements and acts occurring after a minister’s termination. The court concluded that the ministerial exception applies to post-termination acts if they are “part of the process of termination.”

2. The plaintiff prepared a written message which he agreed could be read by church elders to the choir. In that statement, he revealed he was gay and said there was now “a fundamental difference in theological perspective between myself and the church” making it “necessary to part ways.”

Obtaining such statements from employees at the time of termination is often a desirable practice, since it minimizes the church’s exposure to liability for unauthorized disclosures to the staff or congregation. The timing of such statements is critical. Employees are far more likely to sign them at the time they are confronted with evidence serving as the basis for their termination. However, the more removed the statement is from the day the employee is first informed of the church’s decision to terminate his or her employment, the less likely the statement will be signed.

Ideally, church leaders should have a dismissed employee sign a written confession that (1) admits to wrongdoing (in general or specific terms, depending on the circumstances), and (2) consents to a pastor or board member reading the confession to the staff and congregation. As noted above, having such a statement prepared in advance and available at the time the employee is informed of his or her termination is often desirable since it is more likely that it will be signed. Also, note that it generally is best for such a statement to authorize that it be read to the “congregation” rather than the “membership,” since the former is a broader category and would authorize the reading of the statement at a church service in which non-members are present. Alternatively, some churches draft statements authorizing it being read “in a church service.” This is a narrower authorization than referring to the “congregation,” since the latter term is not limited to disclosures made at church services.

3. It is interesting to note that the court failed to mention the legal principle of “qualified privilege.” Generally, comments made among church members and regarding matters of common interest enjoy a qualified privilege, meaning that they cannot be defamatory unless they are made with “malice.” In this context, malice means a knowledge that the statements were false, or a reckless disregard as to their truth or falsity. It is important to note that this privilege only applies to statements made to members, and assumes that the members have a legitimate need to receive the information. It does not apply to statements made in a worship service in which non-members are present. This means that it will be much easier for a church to be sued for defamation for information shared during church services in which non-members are present than in a special meeting that is restricted to members only. The court noted that the statements made by the church leaders in this case were made in a worship service. Presumably, non-members were present. If so, this would expose the church to a greater risk of liability for defamation. However, the court failed to address this issue, or its possible significance in this case.

4. Obviously, the dismissal of an employee may involve legal pitfalls and risks, and therefore it is important for a church to retain an attorney who can assist church leaders in making decisions in light of legal considerations. Gunn v. Mariners Church, Inc., 84 Cal.Rptr.3d 1 (Cal. App. 2008).

This Recent Development first appeared in Church Law & Tax Report, July/August 2009.