Key point 2-01.4. The selection of a minister is an ecclesiastical decision that the civil courts ordinarily will not review—even when it is alleged that a church failed to follow its own internal procedures in the selection of a minister, or the selection process was discriminatory.

* A Connecticut court ruled that the First Amendment guaranty of religious freedom prevented it from resolving a pastor’s claim that a denominational agency acted improperly in refusing to circulate his resume to churches in need of a pastor. An ordained pastor (the “plaintiff”) sought employment through the services of a regional denominational agency (the “regional church”). The regional church does not ordain ministers, but it recognizes ordinations performed by member churches. It also provides placement services for ordained ministers by enabling congregations in need of a pastor to obtain information on available ordained ministers. Over time, the regional church became concerned about the plaintiff’s fitness for the ministry. It decided to “flag” his profile and decided not to circulate it to congregations seeking ministers. The plaintiff sued the regional church on several theories of liability including breach of an implied contract, defamation, emotional distress, and fraud. A trial court dismissed the case on the basis of the First Amendment guaranty of religious freedom, and the plaintiff appealed. A state appeals court agreed that the case had to be dismissed. It noted:

In this case, each claim in the plaintiff’s complaint arises out of his relationship with a religious organization. The gravamen of each of the plaintiff’s claims is that the defendant did not assist him in obtaining employment as an ordained minister but rather harmed him by withdrawing its recognition of his ordination. The central question presented is whether the disputes require the court to interpret and to apply religious doctrine and practices or whether the dispute is simply a controversy that involves church officials but to which neutral principles of secular law can be applied without need to inquire into ecclesiastical matters. On a reading of the complaint, it is apparent that the plaintiff’s claims arise primarily from the defendant’s decision to withdraw its recognition of the plaintiff’s ordination and to refuse to circulate his resume to churches.

Actions based on contract law centering on employment disputes between clergy and religious institutions can be litigated in civil courts only if neutral principles of law can be applied without entanglement with religious considerations. A church may make enforceable promises. Courts, however, may not inquire into matters whose enforcement would require “a searching and therefore impermissible inquiry” into church doctrine. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 723. In this case, the plaintiff’s claim centers around a dispute involving the regional church’s selection of candidates whom it will assist in obtaining ecclesiastical employment. The plaintiff contends that he satisfied the requirements set forth by the regional church and therefore was qualified to have the regional church assist him in obtaining ecclesiastical employment. He contends, however, that the regional church “blacklisted” him based on his theological perceptions. Resolution of this claim would involve an impermissible inquiry into the defendant’s internal procedures and its judgment regarding the qualifications of clergy, as well as the plaintiff’s objective qualifications for employment opportunities through the regional church. The reasonableness of alleged promises and reliance thereon cannot be decided without inquiry into such matters. The First Amendment precludes governmental interference with the selection of clergy.

In rejecting the plaintiff’s defamation claim, the court concluded: “Simply put, the gravamen of the dispute is the decision of a religious organization not to recommend the plaintiff for a position in the ministry. The defamation claim cannot be entertained in isolation from the dispute over fitness for the clergy, and there is no overwhelming counterbalancing consideration. The defamation claim was appropriately dismissed.”

In responding to the plaintiff’s assertion that the regional church’s failure to circulate his resume amounted to fraud, the court observed: “At the center of this count is the plaintiff’s claim that he was harmed by the regional church’s failure to circulate his resume and failure to assist him in procuring interviews for pastorate positions at churches affiliated with the regional church. Generally, courts will not interfere in canonical or ecclesiastical controversies regarding clergymen’s employment at a church. The selection or assignment of clergy, and the removal, termination, or suspension of a pastor or clergy member are generally ecclesiastical matters with which civil courts cannot interfere.”

The court also rejected the plaintiff’s emotional distress claim, noting that it could not be resolved without impermissibly delving into church doctrine and governance.

The court concluded:

In sum, this case implicates the ability of the regional church to operate within its own sphere, according to its own methods, and without judicial interference as to its employment recommendations for one of its ministers. The conduct complained of occurred in the context of, or was germane to, a dispute over the plaintiff’s fitness or suitability for his ordination to continue to be recognized and whether his resume should be circulated to churches associated with the regional church. If a court were to decide the issues raised in his complaint, it would necessarily inquire into the church’s decisions regarding its internal management and decisions as to whether a person is suited for the clergy. If a reviewing court did not agree with the procedure used and the effects therefrom in holding the church liable, the court would be imposing secular law and disciplinary action on church practice and procedure. If members of religious organizations could freely pursue their doctrinal grievances in civil courts, or legislatures could pass laws to inhibit or enhance religious activities, ecclesiastical liberty would be subjected to governmental interference and the unmolested and unobstructed development of opinion and belief which the First Amendment shield was designed to foster could be secularly undermined.

Application. Many national and regional denominational agencies have established placement services that typically involve the posting of resumes of ministers seeking employment on a dedicated website. Some denominational leaders have wondered if such services expose them to a risk of liability. There are two possible ways that such websites can expose the sponsoring denominational agency to liability. First, some may argue that the posting of a minister’s resume on a placement website amounts to an official “endorsement” of the minister that makes the sponsoring denomination liable for any misconduct the minister commits while serving a church that based its decision to employ the minister on his or her inclusion on the placement website. This risk is common to all professional organizations that provide a directory of professionals. Examples include bar and medical association websites. The risk in such cases can be managed by using a conspicuous and appropriate disclaimer which, among other things, identifies the service as a mere directory and not as an endorsement of listed individuals.

Second, as this case illustrates, denominational agencies that sponsor job placement websites may be sued if they refuse or fail to post the resume of a minister who is in good standing. This case suggests that this risk is reduced as a result of the First Amendment’s prohibition of civil court intervention in church employment decisions.

Note, however, that liability remains a possibility if a denominational agency posts the resume of a minister on a job placement website, or in any other manner circulates it among churches looking for a new pastor, without disclosing previous disciplinary action. For example, assume that an ordained minister is defrocked due to an incident of adultery, that his ordination was later reinstated following a restorative process, that the denomination’s placement service circulates the minister’s resume but fails to disclose the prior misconduct and termination of ordination, that a church employs the minister without knowledge of the prior misconduct, and that the minister later has a sexual affair with one of his parishioners in the course of a counseling relationship. The argument can be made in such a case that the denomination’s concealment of the minister’s prior misconduct amounts to negligence, and that the denomination would therefore be liable for future acts of sexual misconduct by this minister. This risk would be reduced if the denominational placement service’s posting for the minister noted that he had been defrocked for adultery, and was later reinstated in the ministry following a restorative process. Such disclosures should not be made without a minister’s consent, which can be obtained as a condition of the restoration of his or her status as an ordained minister. Thibodeau v. American Baptist Churches, 994 A.2d 212 (Conn. App. 2010).

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