Church Employee Dismissed After Making Accusations of Sexual Misconduct

• Key point. The civil courts are compelled by the first amendment guaranty of religious freedom to refrain from interfering with the internal decisions of hierarchical churches, including decisions regarding the discipline or dismissal of clergy.

• Key point. Some courts have concluded that the first amendment guaranty of religious freedom prevents them from interfering with the relationship between a church and its ministers, and this rule bars church liability on the basis of negligence for inadequately screening or supervising clergy.

The Colorado Supreme Court threw out a lawsuit brought by a woman alleging that her church acted improperly and unlawfully when it dismissed her after she made complaints of sexual harassment and child molestation against another minister. The woman alleged that between 1968 and 1975, when she was a minor, her stepfather committed various acts of sexual assault against her when they resided together. Her stepfather was a minister at the time, and later became president of his denomination. The woman pursued ministerial studies and was licensed as a minister. After serving as a minister in the State of Washington she moved to the Denver area to start a new church. She later learned that her stepfather, with whom she had severed all ties, was also pastoring a church in the Denver area. She learned that her stepfather was allegedly sexually harassing women church employees and a woman parishioner in his Denver church. She reported this alleged harassment, as well as the sexual abuse she had suffered from her stepfather as a minor, to denominational officers. In response, the stepfather filed charges with the denomination against the woman, claiming that her allegations were false and demanding a full investigation. After an investigation, denominational officers revoked the woman's license and denied her the opportunity to open a new church. The woman responded by filing a lawsuit against her stepfather, and her denomination, alleging several theories of liability including (1) illegal retaliation by denominational officials in response to her charges of sexual harassment, in violation of Title VII of the Civil Rights Act of 1964; (2) breach of fiduciary duty by denominational officials; (3) breach of contract; and (4) intentional interference with contract. A trial court dismissed most of these claims on the ground that it lacked jurisdiction to resolve an ecclesiastical dispute. A state appeals court concurred with this result, and the woman appealed to the state supreme court.

The court began its opinion by noting that all four of the woman's claims arose from the denomination's decision to revoke her minister's license and to cancel the decision to allow her to open a new church. As a result, "each claim arises out of [the denomination's] choice of whether or not to employ [her] as a minister of its church." The court concluded that it was barred from resolving the woman's lawsuit on the basis of the first amendment's free exercise and nonestablishment of religion clauses.

Free exercise of religion

In concluding that allowing the woman to sue her denomination would violate the first amendment's free exercise of religion clause, the court observed:

However, by challenging [the denomination's] decision not to hire her as a minister [the woman] inevitably leads the court into analysis of [the denomination's] choice of a minister, even for purposes of a pretextual inquiry. The decision to hire or discharge a minister is itself inextricable from religious doctrine. The great majority of cases find that a minister holds a special and unique position as the leader of the church and the embodiment of the church's religious beliefs. Thus, the church's decision of who to hire as a minister necessarily involves religious doctrine. The decision may involve non—religious reasons as well, but those reasons cannot be separated from the basic belief that a particular person embodies or does not embody the religious beliefs of the church.

The court found support in the decisions of several other courts. For example, it referred to a federal appeals court decision holding that the mere maintenance of a lawsuit concerning matters related to a pastoral appointment violates the free exercise clause: "We cannot imagine an area of inquiry less suited to a temporal court for decision; evaluation of the `gifts and graces' of a minister must be left to ecclesiastical institutions." Minker v. Annual Conference, 894 F.2d 1354 (D.C. Cir. 1990).

The court cautioned that its ruling did not "bar the large number of non—clergy employees from suing the church on discrimination claims. It does not even bar ministers from bringing employment discrimination claims that do not stem directly from a hiring or discharge decision. Instead, our holding recognizes a small, inviolable area in which the decision of a church is not subject to governmental scrutiny." Similarly, the court noted that

[w]hile claims for illegal hiring or discharge of a minister inevitably involve religious doctrine, that is not the case for a claim of negligent hiring of a minister. The claim of negligent hiring is brought after an employee has harmed a third party through his or her office of employment. An employer is found liable for negligent hiring if, at the time of hiring, the employer had reason to believe that hiring this person would create an undue risk of harm to others. Hence, the court does not inquire into the employer's broad reasons for choosing this particular employee for the position, but instead looks to whether the specific danger which ultimately manifested itself could have reasonably been foreseen at the time of hiring. This inquiry, even when applied to a minister employee, is so limited and factually based that it can be accomplished with no inquiry into religious beliefs.

The court rejected the woman's claim that most of the prior court rulings refusing to resolve disputes concerning the relationship between a church and its ministers occurred prior to the Supreme Court's 1990 decision in Employment Division v. Smith, 494 U.S. 872 (1990). In the Smith case the Supreme Court said that a neutral, generally applicable law prevails over claims of religious exemption. The woman claimed that Title VII of the Civil Rights Act of 1964 was such a neutral law and therefore her claim of retaliation could not be rejected on the basis of the first amendment. The court disagreed, noting that the Supreme Court surely did not intend in the Smith case to allow the courts to intrude into ecclesiastical decisions regarding the tenure of ministers.

Nonestablishment of religion

The court also concluded that any resolution of the woman's claims would violate the first amendment's nonestablishment of religion clause, since it would create excessive government entanglement with religion.

Conclusion

The court also rejected the woman's claim that the civil courts could resolve her lawsuit if she could demonstrate that the denomination acted with "fraud" or "collusion." The court acknowledged that the United States Supreme Court had suggested, in earlier cases, that the civil courts may be able to resolve disputes concerning the status or tenure of ministers when churches act with fraud or collusion. The Colorado Supreme Court rejected this exception to the general rule of judicial nonintervention: "In order to determine whether a church employed fraudulent or collusive tactics in choosing a minister, a court would necessarily be forced to inquire into the church's ecclesiastical requirements for a minister. The first amendment makes such inquiry into religious beliefs impermissible." Van Osdol v. Vogt, 908 P.2d 402 (Colo. 1996). [ Termination, The Civil Rights Act of 1964, Judicial Resolution of Church Disputes, The Establishment Clause, The Free Exercise Clause]

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