Church Members

Legal Developments

Churchgoer’s Criminal Stalking Conviction Vacated Due to Free Speech Concerns

Man’s social media posts about a church employee retained First Amendment protections, court says.

Richard R. Hammar, Attorney, CPA
Bio

A North Carolina court ruled that a church member could not be convicted of violating an anti-stalking statute for posting content to his social media account that offended another member.

An adult male (the “defendant”) met a woman (“Mary”) at a church prior to the start of a Good Friday worship service. Mary was employed in the church’s communications department. The two of them were seated at the same table and briefly made small talk in a group setting before separating at the beginning of the service. Upon leaving church that day, Mary did not give any further thought to her encounter with the defendant.

A few weeks later the defendant mailed a five-page handwritten letter to Mary’s work address. Mary later testified:

The gist of it was that when [Defendant] first saw me at the Good Friday service he thought he had found his soul mate, and that the feelings he felt were so intense he couldn’t talk to me. And then he goes on to say that he used the communications plan to talk to me, to ask me out, rather than for professional reasons.

The defendant ended the letter by writing that he was “highly attracted” to Mary and asking her to go on a date with him. The following day, Mary gave the letter to her work supervisors and asked them to intervene on her behalf, and they agreed to do so. She did not respond to the defendant’s letter.

A few days later the defendant sent Mary a second handwritten letter, which was seven pages long and mailed to her home address. Mary provided the following summary of the second letter:

He starts by apologizing for sending this to me without me giving him my address. He says he found it on a website. And he also says that he would not harass or stalk me, and that if I felt uncomfortable to notify him and he would cease communication. Then he goes on to talk about some of his personal history, and the last line says that I need to go on a date with him or tell him to leave me alone.

Mary showed the defendant’s letter to her supervisors, who once again told her that they would handle the situation.

The church’s minister of pastoral care spoke to the defendant over the phone about his communications with Mary. During this phone call, the minister told the defendant “to stop making any contact [with Mary] and [that] there could be legal actions if he did, and that the contacts were unwanted.” Following this conversation, the defendant did not send Mary any further emails or letters.

A few months later, Mary logged into an account she had created on the social media service Google Plus. Upon doing so, she discovered that the defendant had “followed” her account and had made four separate posts on his own Google Plus account that referred to her by name.

The posts on the defendant’s Google Plus account were not specifically directed to Mary but were shared publicly on his account where any user of the service could read them.

The first post stated that “God chose Mary” to be the defendant’s “soul mate.” In the other three posts, the defendant wrote, among other things, that he “freely chose Mary as his wife” and wanted God to “please make her his wife.”

After viewing these posts, Mary immediately blocked the defendant’s account. Shortly thereafter, she deleted her own Google Plus account. Mary continued, however, to monitor the defendant’s publicly shared posts by checking his Google Plus page “at least once a week.”

Several months later a box of cupcakes was delivered to Mary’s office at work with a note from the defendant. Upon receiving the cupcakes, Mary filed a police report that led to the defendant being arrested and charged with four counts of felony stalking based mainly on his posts on his Google Plus account. He was later convicted on all counts by a jury, and sentenced up to seven years in prison.

The defendant appealed, claiming that the trial court erred by denying his motion to dismiss the four stalking charges for which he was ultimately convicted. He contended that because all of these charges were based—either in whole or in part—upon the content of his Google Plus posts, he could not constitutionally be convicted of stalking due to the resulting infringement of his right to free speech under the First Amendment.

The appeals court reversed the defendant’s conviction. It concluded:

As this case aptly demonstrates, difficult issues arise in attempting to balance, on the one hand, society’s laudable desire to protect individuals from emotional injury resulting from unwanted and intrusive comments with, on the other hand, the free speech rights of persons seeking to express themselves on social media. Our courts will no doubt continue to grapple with these issues going forward. In the present case, however, it is clear that defendant’s convictions violated his constitutional right to free speech. His Google Plus posts about Mary—while understandably offensive to her—constituted protected speech that cannot constitutionally be prohibited by the State. As such, we are compelled to vacate his convictions.

What this means for churches

This case demonstrates how some courts resolve the tension between offensive social media posts and free speech. Church leaders should note, however, that employees (e.g., youth pastors) who send sexually explicit social media posts (text and images) to minors (e.g., youth group members) cannot use freedom of speech as a defense.

State v. Shackelford, 2019 WL 1246180 (N.C. App. 2018).

Legal Developments

Dealing with Disruptive Individuals During Church

While one court says a restraining order isn’t permissible, other courts are divided on this issue.

Richard R. Hammar

Key point 7-17. Churches do not have to tolerate persons who disrupt religious services. Church leaders can ask a court to issue an order barring the disruptive person from the church’s premises. If the person violates the order, he or she may be removed from church premises by the police, and may be found to be in contempt of court.

An Illinois court refused to issue a restraining order barring a disruptive person from attending church.

The church had sought a restraining order against a man (the “defendant”) for multiple acts of harassment against the church, including:

  1. Distributing disparaging letters on the windshields of automobiles in the church parking lot during one of its morning services.
  2. Distributing similar letters on a second occasion. He was confronted by a staff member and asked to leave, to which he declared he had a right to be there.
  3. Ten years of repeated attempts to attack the reputation of the church and its pastor.

    4. The letters stated that the church is “a corrupt church that needs to be thoroughly exposed . . . and is a disgrace to Christianity” because the pastor refused to suggest marital counseling when defendant’s wife left him after 40 years of marriage. The letters cite the church as an example of “how the devil gets into churches.” The defendant distributed the letters “door-to-door” to neighbors and in vehicles parked at nearby commercial establishments.

    The church went to court seeking a restraining order banning the defendant from “communicating, publishing, or communicating, in any form, any writing naming or regarding [the pastor], his family, or any employee, staff, or member of the congregation of” the church. A trial judge granted the temporary restraining order but this ruling was reversed by a state appeals court. The court concluded:

    Defendant’s conduct has no doubt distressed the pastor [who] alleged that it has “raised questions” among some of the letters’ recipients about his own “credibility” and that of the church, and that responding to their concerns has been, in his view, “an unwanted distraction and excessive waste of time.” However, we cannot silence the defendant when he is voicing protected criticism, no matter how much time, energy, or distress it costs petitioner. Even less can we silence defendant on the ground that his criticisms of the pastor may have gained some traction—as if we can shield the pastor from the need to answer allegations that, in the minds of some individuals, really do demand answers. That is viewpoint discrimination. Flood v. Wilk, 2018 IL App (1st) 172792-U.

    As the US Supreme Court noted in McCullen v. Coakley, 134 S. Ct. 2518 (2014), speech prohibition that “favors one side in [a] debate” is viewpoint discrimination, “an egregious form of content discrimination.”

    What this means for churches

    Perhaps there is a disruptive person who attends your church. If so, this case demonstrates that, while the law may provide a remedy in some cases in the form of a restraining order, there is no guaranty it will. Many courts are loathe to restrict a person’s access to property except in extreme cases. Here are some options for church leaders to consider:

    • Call the police. This often is the best option.

    • Some churches use a police officer as a security guard during worship services. The officer will be able to confront a disruptive person with minimal to no liability for the church.

    • If someone threatens to inflict physical harm or to disrupt a worship service, and the church does not have a security guard, then immediate intervention by church staff may be necessary.

    • Physically restraining such a person should always be viewed as a last resort. More than one person should be involved in the restraint so that unfounded allegations of brutality can be rebutted. If this option is attempted, be sure to have someone make a video to rebut unfounded allegations of brutality by the restrained person.

    • In some cases church leaders may be able to avoid such incidents by obtaining a restraining order from a local court.

    • Ushers should periodically receive training on these issues.

Legal Developments

First Amendment Bars Court from Resolving Dismissed Member’s Lawsuit

The ecclesiastical abstention doctrine prevents courts from reviewing disputes concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.”

Richard R. Hammar, Attorney, CPA
Bio

Key point 6-06.4. Church officers and directors can be removed from office in the manner authorized by the church’s governing documents. It is common for church bylaws to give the membership the authority to remove officers and directors who engage in specified misconduct or change their doctrinal position.

A Florida court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a dismissed member’s lawsuit against his former church.

A church member (the “plaintiff”) had served as a church deacon for three years when the pastor and deacon-board chairman called a special meeting to accuse him of heresy. The plaintiff asserted that the pastor and chairman had defamed him by falsely accusing him “of being a Heretical Apostate committing acts against [the] Church, Spiritual Beliefs, Faith and God orally and publicly in the presence of members of [the] Church.”

In further support of his defamation claim, the plaintiff claimed that the pastor and chairman had written an open letter, made available to all members of the church, disparaging the plaintiff’s good name. That letter, signed by the pastor and deacon chairman, told the plaintiff that his membership was terminated. The letter explained that the plaintiff’s public and private “heretical statements” regarding the inerrancy of the Bible and the divinity of Jesus Christ caused the termination. The letter also noted that the church’s action “was required to maintain the integrity of the church’s doctrine, and to protect the church from false teaching.”

The plaintiff sued the pastor, chairman, and board for defamation, and sought $3 million in damages. A trial court dismissed the lawsuit on the basis of the “ecclesiastical abstention” doctrine which generally bars the civil courts from resolving internal church disputes over questions of doctrine or practice.

A state appeals court agreed with the trial court’s ruling:

The ecclesiastical abstention doctrine, also known as the church autonomy doctrine, is based on the Free Exercise Clause of the First Amendment. The doctrine prevents courts from reviewing disputes concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.”

A lawsuit does not, of course, become a theological controversy just because one of the litigants is a church. We therefore must consider “the nature of the dispute and whether it can be decided on neutral principles of secular law without a court intruding upon, interfering with, or deciding church doctrine. . . .” We conclude that resolving any claims in the plaintiff’s . . . complaint would require a court to intrude into church doctrine in violation of the ecclesiastical abstention doctrine. Therefore, the doctrine prevents litigation of this dispute and the lower court lacks jurisdiction to proceed.

What this means for churches

This case is an excellent example of the impact of the ecclesiastical abstention doctrine (sometimes called the “church autonomy” doctrine) on church disputes. Internal church disputes that concern “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them” are beyond the reach of the civil courts, and cannot be revived by appeals to “neutral principles of law.” Springhill Missionary Baptist Church v. Mobley, 251 So.3d 281 (Fla. App. 2018).

Legal Developments

Court Barred from Ruling on Suit Brought by Former Church Members

Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes

Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes challenging a church’s discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

A North Carolina appeals court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a lawsuit brought by two dismissed church members challenging the legality of their removal.

A married couple (the plaintiffs) asked a court to rule that they remained active members of a church they had attended for 35 years. The church claimed that a membership meeting was convened and the members voted unanimously to revoke the plaintiffs’ membership. The plaintiffs challenged the validity of this meeting on the ground that it was not conducted in conformity with the church’s constitution and bylaws in at least two respects: (1) they were never informed in writing of their removal as members, and (2) they were not given an opportunity to address the church membership concerning their removal. A trial court dismissed the lawsuit on the ground that the plaintiffs’ status of membership in the church was a “core ecclesiastical matter.” The plaintiffs appealed.

A state appeals court affirmed the trial court’s dismissal of the case. It concluded:

Courts should not and may not become entangled in purely ecclesiastical matters involving a church, but can resolve civil law matters which may arise from a church controversy. Ecclesiastical matters include those which concern doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of membership, and the power of excluding from such associations those deemed unworthy of membership by the legally constituted authorities of the church.

To determine whether an issue is an ecclesiastical matter, the dispositive question is whether resolution of the legal claim requires the court to interpret or weigh church doctrine. If the inquiry does not involve such interpretation, then neutral principles of civil law may be applied to resolve the issue.

The court noted that membership in a church is a core ecclesiastical matter and not a “property interest” as the plaintiffs alleged.

On appeal, the plaintiffs claimed that their ouster was unlawful because the church failed to follow the procedure spelled out in its constitution and bylaws. The church bylaws addressed the discipline of members as follows:

Should some serious condition exist which would cause a member to be a liability to the general welfare of the church, the pastor and the deacons will take every reasonable measure to resolve the problem in accord with Matthew 18. If it becomes necessary for the church to take action to exclude a member, a three-fourths . . . secret vote of the members present is required; and the church may proceed to declare the person to be no longer in the membership of the church. A spirit of Christian kindness and forbearance shall pervade all such proceedings.

The plaintiffs argued no vote was taken, they were never provided written notice of their removal, nor were they provided an opportunity to address the other members of the church to discuss their removal. The court noted that “the bylaws specifically call for a three-fourths . . . secret vote” and do not provide for or require prior notice, an opportunity for the affected member to be heard, or a written notification of removal.

The plaintiffs also asserted “that at no time did they take any action to have themselves removed from church membership.” The court responded: “A determination of this issue would fall squarely within ecclesiastical matters beyond the jurisdiction of the courts. . . . We cannot decide who ought to be members of the church, nor whether the excommunicated have been regularly or irregularly cut off.” The court concluded:

Plaintiffs’ allegations center around ecclesiastical matters, specifically the adoption and enforcement within a religious association of needful laws and regulations for the government of membership, and the power of excluding from such associations those deemed unworthy of membership by the legally constituted authorities of the church. We cannot apply neutral principles of law without delving into ecclesiastical matters to determine whether or not plaintiffs were properly removed from the church membership. . . . Civil courts cannot become entangled with deciding what action may or may not have justified plaintiffs’ removal from church membership, and further inquiry by this court into the matter is barred.

What this means for churches

This case illustrates what many courts call the “ecclesiastical abstention” doctrine. Under this doctrine the civil courts are barred by the First Amendment religion clauses from resolving most internal church disputes. While not using the terminology “ecclesiastical abstention,” the United States Supreme Court described the basic principle in a 1976 ruling in which it noted that the civil courts lack jurisdiction over internal church disputes that are “strictly and purely ecclesiastical in [their] character . . . a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). The concept of ecclesiastical abstention prevented the court in this case from resolving the plaintiffs’ wrongful expulsion claim. Lippard v. Diamond Hill Church, 821 S.E.2d 246 (N.C. App. 2018).

Legal Developments

Ecclesiastical Abstention Doctrine Bars Court from Intervention in Dispute over Church Bylaw Compliance

Court could not adjudicate this case without interfering in inherently ecclesiastical matters of pastoral selection and church discipline.

Richard R. Hammar, Attorney, CPA
Bio


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.

Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes challenging a church’s discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

A Texas court ruled that the “ecclesiastical abstention” doctrine prevented it from resolving an internal church dispute regarding a church’s compliance with its bylaws in selecting a new pastor and dismissing several dissident members.

In January 2012, a pastor died and a dispute arose over the church’s efforts to fill the pastoral vacancy. With respect to a vacancy, the church’s bylaws provided:

In the event of a vacancy, a pulpit committee composed of Deacons and members (five people on the committee) shall be appointed by the church to seek out a suitable Pastor and their recommendations will constitute a nomination though any member has the privilege of naming other nominations according to the policy established by the church. The committee shall bring to the consideration of the church one minister at a time. Elections shall be by secret ballot; an affirmative vote of three-fourth of those present being necessary for a choice. The Chairman of Deacons and Trustees shall have the right to meet with the Pulpit Committee at any time.

The secretary of the church board convened a meeting to elect a pulpit committee. The pulpit committee was comprised of the board secretary and other individuals and eventually selected a nominee for pastor. However, other members of the church, including the Chairman of the Deacons and the Chairman of the Trustees, opposed the actions of the pulpit committee.

On October 13, 2012, a meeting was held at which the deacons, trustees, and congregation voted to adopt a “resolution to restore order in the church.” The resolution found that the pulpit committee “has engaged in a campaign of intimidation, threats, assault, falsehoods, and manipulation.” The resolution expelled from church membership persons involved with the pulpit committee on the grounds that they “have hurt the Church, decreased its membership, distracted from its Christian mission, and continue to cause damage to the Church.” A new pastor was elected and installed a month later, on November 17, 2012.

The dismissed members (the “plaintiffs”) sued the church and sought monetary damages based on their expulsion. They argued that the church had failed to follow its bylaws in selecting a new pastor. The church claimed that the pulpit committee was properly constituted under the church’s bylaws and that the dismissed members had violated the church’s bylaws by interfering with the pulpit committee; holding unauthorized meetings; expelling the dismissed members from membership and changing the locks so that they could not access the church; and selecting the new pastor.

The church asked the court to dismiss the lawsuit on the ground that it lacked jurisdiction over the plaintiffs’ claims under the ecclesiastical abstention doctrine because adjudicating the claims would require the trial court to review the church’s discipline of the dismissed members and to impermissibly involve itself in the pastoral selection process. After a hearing, the court dismissed the case.

A state appeals court affirmed the trial court’s ruling. It began its decision by noting that the First Amendment’s guaranty of religious freedom “precludes civil courts from delving into matters focused on theological controversy, church discipline, ecclesiastical government, or the conformity of the members of a church to the standard of morals required of them.” The court continued: “Courts do not have jurisdiction to decide questions of an ecclesiastical or inherently religious nature, so as to those questions they must defer to decisions of appropriate ecclesiastical decision makers.”

The courts are not precluded from resolving all church disputes. They may, for example, “apply neutral principles of law to non-ecclesiastical issues involving religious entities in the same manner as they apply those principles to other entities and issues… . Thus, courts are to apply neutral principles of law to issues such as land titles, trusts, and corporate formation, governance, and dissolution, even when religious entities are involved.”

The court conceded that “the line between required judicial action and forbidden judicial intrusion will not always be distinct because many disputes require courts to analyze church documents and organizational structures to some degree.

The plaintiffs insisted that their claims arose solely from “the church’s failure to abide by non-ecclesiastical terms of the church’s bylaws and, therefore, the trial court had jurisdiction to adjudicate the case under neutral principles of law.” According to the plaintiffs, the questions they raised—including whether the church complied with church bylaws in electing the new pastor and whether the church acted properly in dismissing the plaintiffs—”were non-ecclesiastical because they are governed by non-ecclesiastical provisions in the church’s corporate documents.” The court disagreed:

The mere fact that a church’s corporate documents—here, its bylaws—prescribe a pastoral selection process does not make cases involving a pastoral selection dispute categorically reviewable by a civil court. Instead, whether neutral principles may be applied to a claim turns on the substance of the issues it raises. Consequently, the fact that the church’s bylaws in this case contain provisions governing the process for pastoral selection does not compel the conclusion that a dispute over that process is reviewable …. Here … [the plaintiffs’] claims are inextricably intertwined with the selection of the church’s new pastor and the church’s expulsion of members—two issues long recognized to be inherently ecclesiastical and of prime importance to the exercise of religious liberty ….

In sum, although plaintiffs characterize their claims as purely secular because they rest on provisions of the church’s corporate documents, the trial court could not adjudicate this case without interfering in inherently ecclesiastical matters of pastoral selection and church discipline. Therefore, we hold that the trial court correctly concluded that it lacked jurisdiction over the case under the ecclesiastical abstention doctrine.

What this means for churches

This case is important because of the court’s conclusion that the ecclesiastical abstention doctrine applies to the interpretation of a church’s governing documents if doing so would implicate “ecclesiastical matters of prime importance to the exercise of religious liberty,” which the court concluded, include pastoral selection and the discipline of members. Moultin v. Baptist Church, 498 S.W.3d 143 (Tex. App. 2016).

Legal Developments

Court Rules First Amendment Bars Its Involvement in Defamation Claim Against Couple’s Former Pastor and Church

Case illustrates the reluctance of the civil courts to resolve internal church disputes involving the discipline or dismissal of members.

Richard R. Hammar, Attorney, CPA
Bio


Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding the members who are in good standing of a church.

The Minnesota Supreme Court ruled that it was barred by the First Amendment's guaranty of religious freedom from resolving a defamation claim brought by a married couple against their former pastor and church.

Prior to 2011, a married couple (the "plaintiffs") had been longstanding members of a Lutheran church affiliated with the Lutheran Church-Missouri Synod. On August 22, 2011, the plaintiffs received a letter signed by the church's pastors that contained several allegations regarding their conduct over the preceding two years, but focused on complaints that the plaintiffs had been engaged in "slander and gossip" against the leadership and ministry of the congregation. In addition to criticizing the plaintiffs' behavior, the letter advised them that they had "excommunicated themselves" from the church and informed them that their church membership had been terminated.

Subsequent to this letter the Lutheran Church-Missouri Synod advised the leadership of the plaintiffs' former church to hold a "special voters' meeting" so that the congregation could vote to affirm or reject the excommunication decision. The plaintiffs and approximately 89 church members attended the special voters' meeting, which was held on September 25, 2011. A pastor addressed the meeting, reading from a set of prepared remarks, and published the August 22 letter to those present at the meeting. According to the plaintiffs, the pastor's remarks and the letter contained several defamatory statements, including:

  • The plaintiffs were actively involved in slander, gossip, and speaking against the pastors and board of elders.
  • Plaintiffs had intentionally attacked, questioned, and discredited the integrity of the pastors and other church leaders.
  • Other people had observed the plaintiffs display anger and disrespect toward the pastor.
  • The plaintiffs had publicly engaged in "sinful behavior" inside and outside the church.
  • The plaintiffs had engaged in behavior unbecoming of a Christian.
  • The plaintiffs had engaged in a "public display of sin."
  • The plaintiffs had refused to meet for the purpose of confession and forgiveness.
  • The plaintiffs had "refused to show respect" toward church leaders.
  • The plaintiffs had led other people into sin.
  • The plaintiffs had engaged in slander and gossip and had refused to stop engaging in slander and gossip.
  • The plaintiffs had refused to follow the commands and teachings of God's word.

Following the pastor's remarks, ballots were distributed and the congregation voted to affirm the pastor's decision to terminate the plaintiffs' membership at the church. Following this meeting, a Missouri-Synod panel held a hearing to reconsider the plaintiffs' excommunication, and it also affirmed the plaintiffs' excommunication.

On August 16, 2013, the plaintiffs sued the pastor and church (the "defendants") claiming that many of the statements made about them were defamatory. The trial court concluded that the First Amendment deprived it of jurisdiction to resolve the defamation claim, and dismissed the plaintiffs' case. A state appeals court agreed with the trial court, and the case was appealed to the Minnesota Supreme Court. The court began its analysis by summarizing the leading decisions of the United States Supreme Court:

First, a court cannot overturn the decisions of governing ecclesiastical bodies with respect to purely ecclesiastical concerns, such as internal church governance or church discipline. Second, a court may not entertain cases that require the court to resolve doctrinal conflicts or interpret church doctrine. Finally, a court may decide disputes involving religious organizations, but only if the court is able to resolve the matter by relying exclusively on neutral principles of law, the court does not disturb the ruling of a governing ecclesiastical body with respect to issues of doctrine, and the adjudication does not interfere with an internal church decision that affects the faith and mission of the church itself.

The court noted that the plaintiffs had conceded that the majority of the statements detailed in their lawsuit could not serve as the basis for a defamation claim, since "adjudicating the truth or falsity of the statements would require the court to consider and interpret matters of church doctrine." For example, "a court could not decide whether the plaintiffs were engaged in a 'public display of sin' without interpreting the meaning of the word 'sin' as a matter of Lutheran doctrine—a determination that would clearly be unconstitutional."

But the plaintiffs insisted that four of the statements referenced in their lawsuit could be adjudicated without violating the First Amendment: (1) that the plaintiffs "perpetuated falsehoods" about the church and its pastors, (2) that the pastors had received numerous complaints about the plaintiffs' slander and gossip, (3) that the plaintiffs accused one pastor of stealing money from the church, and (4) that the plaintiffs committed "breaches of confidentiality." The plaintiffs argued that a court could use neutral principles of law to determine the truth of these statements and, consequently, adjudicating a claim based on these four statements would not lead to excessive entanglement with religion. The defendants countered that allowing a court to adjudicate a claim based on statements made during a church disciplinary proceeding would unduly entangle the court with religion and severely interfere with the ability of religious organizations to govern their own affairs. To begin with, the defendants pointed out that because the statements were made during the course of a church disciplinary hearing, each statement has some religious meaning and a court could not simply sort so-called "secular" statements from "religious" ones.

The court conceded that this argument had merit:

Many of the statements the plaintiffs identified in their complaint were obviously religious in nature. Although other statements seem more secular in nature, it would certainly be difficult to differentiate between secular and religious statements, especially when the context in which the statements were made was clearly religious. A statement-by-statement analysis would be, at best, a difficult endeavor and, at worst, a court might be forced to interpret doctrine just to determine whether or not a statement had a religious meaning. It is precisely this sort of complicated and messy inquiry that we seek to avoid by prohibiting courts from becoming excessively entangled with religious institutions.

The defendants further asserted that the plaintiffs' claims were nothing more than an attempt to circumvent Supreme Court rulings and obtain judicial review of the decision to excommunicate them. The court responded:

There is no doubt that the First Amendment protects the right of churches and religious organizations to make decisions regarding their membership. To some degree, the plaintiffs' defamation claims are a request to evaluate the accuracy of the facts used to support the church's decision to excommunicate the plaintiffs. Some courts that adopt an absolute position on adjudicating suits arising out of church disciplinary proceedings reason that "the First Amendment's protection of internal religious disciplinary proceedings would be meaningless if a parishioner's accusation that was used to initiate those proceedings could be tested in a civil court." Hiles v. Episcopal Diocese, 773 N.E.2d 929, 937 (2002).

In essence, the defendants argue that immunity from defamation suits based on statements made during church disciplinary proceedings must necessarily be included within a church's First Amendment right to make membership decisions, lest that right ring hollow. The defendants stress that this is particularly true because exposing these proceedings and their participants to civil litigation will lead to a chilling effect. If church disciplinary proceedings are not shielded from the scrutiny of civil courts, there is a very real risk that those who participate will censor themselves in order to avoid liability or the threat of a lawsuit … .

[W]e hold that the First Amendment prohibits holding an individual or organization liable for statements made in the context of a religious disciplinary proceeding when those statements are disseminated only to members of the church congregation or the organization's membership or hierarchy. As a result, the district court properly dismissed the claims brought by the plaintiffs against the church and its pastors.

What this means for churches

This case illustrates the reluctance of the civil courts to resolve internal church disputes involving the discipline or dismissal of members. This reluctance led the court to reject the plaintiffs' claim that they had been defamed by the church and its pastor. Some courts have concluded that defamation claims arising out of statements made in church disciplinary proceedings may be adjudicated by the civil courts if they can do so without interpreting or applying religious doctrine. But given the difficulty of this task, such a position remains a minority view. Pfeil v. Lutheran Church, 877 N.W.2d 528 (Minn. 2016).

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Legal Developments

Minnesota Court Rules on the Extent of First Amendment Protections for Church Discipline

Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes

Richard R. Hammar, Attorney, CPA
Bio

Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

Key point 10-15. The First Amendment limits, but does not eliminate, a church's liability for defamation.

A Minnesota court ruled that it was barred by the "ecclesiastical abstention" doctrine from resolving two church members' claims that they had been defamed by statements made about them in a church disciplinary meeting.

An elderly married couple (the "plaintiffs") were longstanding members of a Lutheran church. The church leadership convened a special membership meeting to determine if the plaintiffs should be excommunicated. At this meeting, the pastor read from a prepared document and made numerous statements about the plaintiffs. These statements included:

  • The plaintiffs were "actively involved in slander, gossip, and speaking against the pastor, the pastor's wife, and the church, including the claim that the pastor was stealing money from the church."
  • The plaintiffs had "intentionally attacked, questioned, and discredited the integrity" of the pastor and other church leaders.
  • Members had seen the plaintiffs display "anger and disrespect" toward the pastor.
  • The plaintiffs had publicly engaged in "sinful behavior" inside and outside the church.
  • The plaintiffs had engaged in behavior unbecoming of Christians.
  • The plaintiffs had "refused to meet for the purpose of confession and forgiveness."
  • The plaintiffs had "refused to show respect" toward the church's leadership.
  • The plaintiffs had "led other people into sin."
  • The plaintiffs had engaged in "slander and gossip" and refused to stop.
  • The plaintiffs had "refused to follow the words and teachings of God."

During the same meeting, the pastor displayed a document containing additional statements about the plaintiffs. These referenced numerous alleged defamatory statements made by the plaintiffs against the pastor, and accused the plaintiffs of "breaches of confidentiality" and causing dissention among the membership.

The plaintiffs sued the pastor and church, claiming that their statements about the plaintiffs were defamatory and injured their character and reputation in their small community. The pastor and church asked the court to dismiss all of the plaintiffs' claims on the ground that they pertained to church governance, membership, and discipline and therefore the civil courts were barred by the First Amendment guarantee of religious freedom from resolving them.

The trial court concluded that because all of the alleged defamatory statements "were made in the context of internal church governance and involve the reasons and motives for disciplining the plaintiffs," the court lacked jurisdiction under the so-called "ecclesiastical abstention" doctrine to resolve the plaintiff's claims. The plaintiffs appealed.

A state appeals court began its opinion by noting:

Under the ecclesiastical abstention doctrine, courts lack subject-matter jurisdiction if the disputed topic is "strictly and purely ecclesiastical in its character, a matter over which the civil courts exercise no jurisdiction, a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them" (quoting the Supreme Court's decision in Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).)

The court referenced its previous decision in Schoenhals v. Mains, 504 N.W.2d 233, 235 (Minn. App. 1993). The Schoenhals case was based on a letter a married couple received from their pastor terminating their membership in their church. The pastor read the letter to the entire congregation and discussed it separately with the couple's son, who was also a member of the church. The letter set forth the following reasons for terminating the couple's membership in the church:

  • A lack of financial stewardship with consistency and faithful tithing and offering over a given period of time.
  • A desire to consistently create division, animosity, and strife in the fellowship.
  • Direct fabrication of lies with the intent to hurt the reputation and the establishment of the church.
  • Backbiting, accusations, division, and lying are some of the most serious sins found in the Bible.

The couple sued the church and its pastor alleging defamation, among other claims. The trial court dismissed the couple's claims on the basis of the ecclesiastical abstention doctrine, and a state appeals court affirmed this ruling since any examination as to the truth of the pastor's statements would "require an impermissible inquiry into church doctrine and discipline" in violation of the First Amendment.

The court acknowledged that one of the pastor's statements—the accusation that the couple had fabricated lies intended to hurt the reputation and establishment of the church—appeared unrelated to church doctrine. But it reasoned that the statement "related to the church's reasons and motives for terminating the couple's membership" and therefore any examination into those reasons and motives "would also require an impermissible inquiry into church disciplinary matters." In addition, the court noted that the letter "was disseminated only to other congregation members, which strengthened its conclusion that the pastor's statements were related and limited to internal church disciplinary proceedings."

The court concluded that the plaintiffs' statements, like the statements in Schoenhals, were all related to "the church's motives and reasons for excommunicating them," and that "any examination as to the truth of these statements would be an impermissible inquiry into church doctrine under the First Amendment. Adjudicating the truth of statements concerning sin and Christian doctrine cannot be done without impermissibly intruding on issues that are strictly and purely ecclesiastical in their character."

The plaintiffs' attorney conceded that the court could not examine the truth of the statements concerning "sin" and Christian doctrine without violating the First Amendment. Nevertheless, he argued that four categories of statements—the breach of confidentiality, lying or perpetuating false information, accusing the pastor of stealing money, and the reported complaints of other congregation members concerning the plaintffs' behavior—could be resolved by the court based on secular, legal principles. The court disagreed:

This argument overlooks why the statements were made and the context in which they were made. In Schoenhals, we declined to inquire into any statements that related to a church's reasons and motive for terminating membership, even if the alleged defamatory statements appear unrelated to church doctrine on their face. Likewise here, any examination into whether the statements were truthful would be an "impermissible inquiry into church doctrine and discipline, because the statements were directly related to the church's reasons for excommunicating the plaintiffs. Furthermore, these statements all occurred during the context of internal church disciplinary proceedings … that were specifically designed to determine membership status at the church.

The court concluded: "In concluding that the plaintiffs' claims must be dismissed, we do not minimize the concerns that brought them to court … . But the separation of church and state, a principle enshrined in the Minnesota and United States Constitutions, prevents a court from determining the merits of the plaintiffs' dispute with their former church. Our decision here does not excuse any defamatory behavior that may have occurred in a sacred setting; it merely honors the separation of church and state by avoiding secular intrusion into the heart of religious concerns: who may be a member of the church; what standards of behavior are required of them; and how and when members may be disciplined."

What this means for churches

This case illustrates what many courts call the "ecclesiastical abstention" doctrine. Under this doctrine the civil courts are barred by the First Amendment religion clauses from resolving most internal church disputes. While not using the terminology "ecclesiastical abstention," the United States Supreme Court described the basic principle in a 1976 ruling in which it noted that the civil courts lack jurisdiction over internal church disputes that are "strictly and purely ecclesiastical in [their] character … a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them." Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). The concept of ecclesiastical abstention prevented the Minnesota court from resolving the plaintiffs' defamation claims.

There is one additional point in the court's decision worth noting. In the court's previous decision in the Schoenhals case, it concluded that allegedly defamatory statements disseminated only to other congregation members "strengthens" the conclusion that such statements "are related and limited to internal church disciplinary proceedings" that are beyond the jurisdiction of the civil courts. For the greatest protection, statements concerning the discipline of members should be disclosed only to church members, since this may trigger the "qualified privilege" that protects the limited disclosure of statements pertaining to matters of "common interest" from defamation and similar claims. Pfeil v. St. Matthew Church, 2015 WL 134055 (Minn. App. 2015).

Legal Developments

Federal Court Barred from Resolving Dismissed Member’s Lawsuit

Ex-member unable to sue church leaders for misappropriation of church funds.

Richard R. Hammar, Attorney, CPA
Bio

Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

A federal appeals court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a dismissed church member's lawsuit accusing church leaders of financial improprieties and breach of their fiduciary duties. An individual (the "plaintiff"), on behalf of himself and all members of his church, filed a lawsuit in which he alleged that the pastor and board of trustees (the "defendants") were guilty of a misappropriation of church funds and a breach of their fiduciary duties. A federal district court dismissed the lawsuit on the ground that the pastor had dismissed the plaintiff's church membership, thereby depriving him of "standing" to sue the pastor or board. The plaintiff appealed.

A federal appeals court affirmed the district court's dismissal of the case. It began its opinion by noting:

The First Amendment "severely circumscribes" the role that civil courts may play in resolving disputes touching on matters of faith. Civil courts encroach on the autonomy of religious institutions when they inquire into ecclesiastical law and governance. The non-entanglement principle, anchored in First Amendment values, thus "requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization" (quoting the Supreme Court's decision in Jones v. Wolf, 443 U.S. 595 (1979). In so doing, civil courts accept decisions of the highest religious decision-maker as binding fact, so long as those decisions are not tainted by fraud or collusion.

When a church dispute "turns on a question devoid of doctrinal implications, civil courts may employ neutral principles of law to adjudicate the controversy." The court concluded that the present controversy over the plaintiff's membership in the church and his standing to pursue his claims in court could not be resolved solely with reference to neutral principles of law involving no consideration of church doctrine and therefore were not capable of civil court review. In particular the court noted that among the qualifications of membership recited in the church's bylaws was "a life being consistent with the doctrine of the [church]." This requirement "makes membership in the church an ecclesiastical matter, for it conditions an individual's membership on living in conformity with the doctrine of the church. We know of no neutral principle of law that could assist in evaluating whether a member lives his or her life in a manner consistent with church doctrine."

The church's bylaws confer upon the pastor the power to determine membership status, and to excommunicate members "for the good of the church." The court concluded that the pastor's authority to excommunicate members

falls squarely within the realm of matters insulated from civil court review. As codified in its central governance document, the church entrusts the [pastor] with power to decide when it is in the best interest of the congregation to terminate an individual's membership. Determining when excommunication is "necessary for the good of the church" undoubtedly involves a complex balancing of spiritual and pragmatic considerations, all properly left to the highest church authority, not civil courts. We are not competent to upset judgments made by the pastor in this doctrinally sensitive area, for there are no neutral principles of law that shed light on the membership composition necessary for the good of the church.

Lastly, the court rejected the plaintiff's claim that the pastor's attempt to terminate his membership was invalid because he failed to follow the church's bylaws. The court noted that "the Supreme Court held in 1976 that the First Amendment does not permit civil court review of the arbitrariness of ecclesiastical actions." Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

What this means for churches

This case illustrates the view of most courts: The First Amendment bars civil court review of church membership determinations that cannot be resolved with reference to "neutral principles of law" that do not implicate church doctrine or polity. Askew v. Trustees, 684 F.3d 413 (3rd Cir. 2012).

Legal Developments

Inspection of Church Membership Lists

When is a church required to turn over its membership list for inspection?

Richard R. Hammar, Attorney, CPA
Bio

Key point 6-03.4. Church donor and membership lists are subject to government inspection, so long as the government has a compelling interest in obtaining this information.

A federal bankruptcy court ruled that a creditor was not entitled to obtain the names of the members of a church that was in bankruptcy. A financial institution (the "creditor") loaned money to a church that later filed for bankruptcy. The creditor asked the court to compel the church to disclose the identities and residential addresses of all of its members. A court declined to order the church to turn over its membership list, for two reasons.

Relevancy

The court concluded that the church's membership list was irrelevant to the creditor's desire to assess the church's ability to pay its debts:

At the core, discovery must focus on relevant information. The court fails to see how a membership list is relevant to [the creditor's] purposes. There may be members included on the list who have not stepped foot in the door in a decade, while there may be faithful attendees who are not members. While the court would not challenge that numbers relating to the congregants may be material, including the number of members on the roll, the number of people attending services, the number of those people who are financially supporting the church, the court cannot conclude that the actual membership list is relevant.

First Amendment

The court also ruled that the First Amendment guaranty of religious freedom prevented the creditor from obtaining personally identifiable information about church members:

Fear of the consequences of the disclosure of one's religious affiliation may be palpable and real at a certain point in history. There is, therefore, in my view, implicit in the First Amendment's guarantee of religious freedom, the right to choose whether or not to disclose one's religious affiliation lest forced disclosure inhibit the free exercise of one's faith. I have to believe that, when a person provides her name and address to a church that has asked her to become a member, she reasonably expects that her name and address will be disclosed to other church members, used by the church to invite her to church functions, and used to solicit her contributions to the church's financial welfare. There is nothing I know of in the American experience that suggests to me that by giving one's name and address to a church one thereby agrees to the publication of one's religious affiliation to the whole world.

What this means for churches

This case will serve as a useful precedent to any church that is asked, in the course of litigation, to turn over information about its members. Doing so impinges not only on a church's constitutional right to the free exercise of religion, but also on church members' constitutional right to free association. As the court noted, "membership lists are generally subject to heightened protection by courts because of the potential chilling effect on the First Amendment right to freedom of association." In re Deliverance Church, 2011 WL 6019359 (N.D. Ohio 2012).

Legal Developments

Court Intervention in Church Legal Disputes

If religious doctrine is involved, courts typically won’t intervene in governance disputes.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Court Intervention in Church Disputes

If religious doctrine is involved, courts typically won’t intervene in governance disputes.

Richard R. Hammar, J.D., LL.M., CPA

Key point 6-12.4. Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church’s governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.

A Texas appeals court ruled that it was barred by the “ecclesiastical abstention doctrine” from resolving a lawsuit brought by former church members alleging that the church failed to follow its bylaws in various respects. Former members of a church (the “plaintiffs”) sued the church and its trustees (the “defendants”) alleging that they breached their obligations to the plaintiffs, as members of the church, by failing to conduct elections for trustees; improperly conducting general meetings without a quorum; adopting amendments to the bylaws in violation of those bylaws; disenfranchising numerous members of the church who were critical of the trustees’ policies and procedures; refusing to allow these disenfranchised members to participate in meetings and refusing to provide them copies of church documents; establishing a mandatory monthly membership fee of $30; refusing to honor the members’ petitions to call special meetings or place matters on the agenda for other meetings; and altering the trustee-nomination procedure and committee-appointment process so that only persons appointed by them could be eligible for appointment.

The plaintiffs asked the court for a declaration that the amended bylaws were of no effect, all disenfranchised members would be restored to full rights as members, and the $30 membership fee invalidated.

The defendants claimed that the “ecclesiastical abstention doctrine” applied to divest the court of jurisdiction to hear the plaintiffs’ claims. The trial court agreed with the defendants and dismissed the lawsuit. The plaintiffs appealed on the ground that a resolution of their claims was not barred by the First Amendment or the ecclesiastical abstention doctrine since a civil court could resolve all of the claims using “neutral principles of law” requiring no inquiring into church doctrine.

A state appeals court affirmed the trial court’s ruling dismissing the case. It noted that the ecclesiastical abstention doctrine is based on the First Amendment’s free exercise of religion clause, which prohibits “governmental action that burdens the free exercise of religion by encroaching on a church’s ability to manage its internal affairs.” However, the court acknowledged that the civil courts have the authority to resolve “purely secular disputes that do not require an inquiry into religious doctrine.”

The court noted that the plaintiffs’ primary argument was that the church’s bylaws were changed inappropriately. It noted that “the church’s failure to follow its bylaws on a matter of internal governance is a matter of internal church governance and ecclesiastical concerns, and the courts may not interfere with that decision.” The court concluded:

The neutral principles of law approach does not apply here because the plaintiffs complain about matters of internal church governance. The disputes in this case do not involve contract, property, or civil rights. Instead, the plaintiffs contend that the trustees failed to comply with the bylaws when they allegedly called for elections, conducted meetings, and amended the bylaws; disenfranchised members; refused to allow those disenfranchised members to participate in meetings; refused to provide disenfranchised members copies of church documents; and established a mandatory monthly membership fee. Whether a church failed to “follow its bylaws on a matter of internal governance is also a matter of internal church governance and ecclesiastical concerns,” and we may not interfere with that decision.

Nor do courts have jurisdiction to decide who may or may not be members of the church. We conclude that the trial court lacked jurisdiction to hear the plaintiffs’ claims because they involve matters of internal church governance.

What This Means For Churches:

All courts would agree that they are prohibited by the First Amendment from resolving any internal church dispute requiring an interpretation of church doctrine or polity. However, the courts interpret doctrine and polity differently. Some courts, such as this one, interpret the concepts of doctrine and polity broadly to include a church’s adherence to its bylaws on matters of internal church governance. But other courts have taken a narrower view of doctrine and polity and have been willing to resolve some disputes involving church governance, so long as no inquiring into doctrine or polity is involved. 2011 WL 2685969 (Tex. App. 2011).

This Recent Development first appeared in Church Law & Tax Report, July/August 2012.

Legal Developments

Court Intervention in Church Legal Disputes

Courts will not resolve disputes that involve church doctrine.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Court Intervention in Church Legal Disputes

Courts will not resolve disputes that involve church doctrine.

Richard R. Hammar, J.D., LL.M., CPA

Key point 6-06.1. Churches select their officers and directors in various ways. For example, it is common for members of a church board to be elected by the church’s membership, while officers are elected by the board. The civil courts generally refrain from resolving disputes involving the selection of church officers and directors on the ground that the First Amendment guaranty of religious freedom prevents them from becoming involved in ecclesiastical disputes.

Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes challenging a church’s discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

Key point 6-12.4. Most courts refuse to intervene in church disputes concerning the validity of a membership meeting that was not conducted in accordance with the procedural requirements specified in the church’s governing documents. However, some courts are willing to intervene in such disputes if they can do so without inquiring into religious doctrine or polity.

A Florida court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving an internal dispute involving an interpretation of a church’s articles of incorporation and bylaws, and applicable state nonprofit corporation law, because it could not do so without inquiring into religious doctrine. A church’s articles of incorporation provided for a seven-member board of directors to manage the “affairs of the corporation,” and director elections were to occur “annually at a meeting of the members of the corporation to be held without notice on the last Wednesday night of September each year.” The articles of incorporation further specified that “the bylaws of this corporation shall be made, altered, amended or rescinded by the board of directors of this corporation.”

The church’s bylaws addressed a number of governance issues, including the selection, authority, and discipline of members. With regard to discipline, the bylaws stated: “The church may, after due notice and consideration, terminate the membership of any member at the next scheduled business meeting or within 30 days by the vote of a simple majority.”

The bylaws also provided that regular business meetings were to be held monthly, and that “a majority vote of all active members present, unless otherwise stated herein, shall decide all matters.” The bylaws stated that they could be amended “by a majority vote of all active members present, at the regular business meeting or a special called meeting after one week’s notice.”

In 2007, a small group within the church comprised of its lead pastor, and associate pastor, and a lay leader, began discussions with members about the wisdom of, and biblical justification for, changing the church’s governance structure from congregation led to elder led. In 2008, after a regular business meeting adjourned, the pastor again raised with the members in attendance his proposal for an elder-led form of governance. The proposal met with strong opposition from several individuals.

The pastor met with several of the dissidents about what he considered to be grounds for removing them as members of the church. He called two special meetings of the membership to take action on “disciplinary matters” involving four of the dissidents. At the next regular business meeting a majority of the members attending voted to terminate those individuals’ memberships. After the vote, the pastor directed the four ousted members to leave the premises, which they eventually did, taking more than twenty sympathizers with them. Thereafter, the membership voted to amend the church’s articles of incorporation and bylaws as necessary to transition from a congregational church to an elder-led church, and to take a final vote at a special meeting the following month. Members also voted to reduce the number of church officers from five to three (the pastor, associate pastor and one layman), and make the membership of the board of directors and the board of elders identical.

Several of the dissidents (the “plaintiffs”) filed a lawsuit in which they asked the court to undo the membership terminations of the four members; the election of the pastor, associate pastor, and one layman to the reconstituted three-member board of directors; and the adoption of revised articles of incorporation and bylaws. The dissidents claimed that the meetings in which these actions were taken were conducted without proper notice, rendering the actions taken null and void. They further alleged that:

(1) The pastor and associate pastor were concerned that the church’s congregation-led government was inconsistent with biblical teachings, and accordingly they “decided on a plan to supplant congregation governance with elder-governance” under which “three male elders would make all decisions” for the church.

(2) The pastor took offense to statements by members who “voiced opposition to elder leadership” and shortly thereafter, he called special meetings to oust from their leadership positions and membership in the church those expressly opposed to the governance change.

(3) The individuals removed from leadership positions and excluded from church membership received no notice, “written or otherwise,” of “the charges against them or the nature of the action to be taken against them” at the meetings.

(4) The pastor and associate pastor “did not establish that those to be excluded [from membership] had become an offense to the church and to its good name by reason of immoral or unchristian conduct, or by persistent breach of his or her covenant vows, which [the] church’s constitution and bylaws require for exclusion.”

The plaintiffs claimed that the pastor and associate pastor had breached their fiduciary duties to the church by removing certain members, electing new directors, and changing its governing documents” in violation of the mandate under the state nonprofit corporation law (under which the church was incorporated) that corporate actions be taken in accordance with the church’s articles of incorporation and bylaws. This, the plaintiffs claim, the church did not do.

The pastor and associate pastor asserted that the dispute was not a doctrinally neutral dispute regarding church governance (whether the church should be congregation led or elder led). Rather, it was entirely an ecclesiastical matter, and so the civil courts had no power to intervene.

A state appeals court began its opinion by noting that the First Amendment “prevents secular courts from reviewing disputes requiring an analysis of theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.” However, “the issue before us is whether the First Amendment prohibits judicial review of actions taken by a corporation allegedly in violation of its articles of incorporation and bylaws when the corporation is a church.” The court reasoned that “when a church-related dispute can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving a religious controversy, the civil courts may adjudicate the dispute.” But if a church dispute cannot be resolved without delving into church doctrine, then the civil courts may not intervene. The court concluded that even though this case appeared to involve a dispute over the interpretation of a church’s governing documents, the dispute was sufficiently entangled with doctrinal issues to prohibit civil court review. The court concluded:

[Plaintiff] asks whether the church, a corporate entity, complied with its articles of incorporation and bylaws in terminating corporate membership, electing directors, and amending corporate documents. Thus, it implicates … neutral legal tenets. However, even where neutral law applies, secular courts must not become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs …. First, the essential dispute in this case is not over property …. Rather, the controversy is solely over how the church should govern itself—an essentially religious matter. Second … [the church bylaws] detailed the procedure and grounds for terminating membership in the congregation. Consequently, any inquiry into whether the church adhered to its bylaws in excluding members necessarily entangles the court in religious matters protected by the First Amendment …. Finally, it is evident … that exercising jurisdiction in this instance would be tantamount to intervening on behalf of [a group] espousing particular doctrinal beliefs. We can discern no way under the facts of this case to draw a clean line between essentially religious matters protected by the First Amendment and matters of corporate law.

What This Means for Churches:

This case illustrates the important principle that the First Amendment bars civil court intervention in internal church disputes involving bylaw interpretations and compliance with applicable nonprofit corporation law, if a court’s resolution of the dispute might implicate church doctrine. Rosenberger v. Jamison, 72 So.3d 199 (Fla. App. 2011).

This Recent Development first appeared in Church Law and Tax Report, May/June 2012.

Legal Developments

Informing Church Members of Disciplinary Action

Court refuses to resolve expelled member’s defamation claim.

Richard R. Hammar, Attorney, CPA
Bio

Key point. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

A Tennessee court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a church member's defamation claims against his pastor based on a letter that was read to the congregation.

A man ("Owen") had attended the same church for 70 years and served as trustee for 30 years. Owen claimed that his pastor gave false information to an attorney about him, which the attorney placed in a letter that was sent to the pastor. The pastor read this letter to the entire congregation during a regular Sunday morning church service. While Owen was not identified as the subject of the letter at the reading, he believed that everyone knew the letter's remarks were about him. Owen later sued the pastor for defamation. The attorney's letter was attached to the lawsuit. The letter states, in relevant part:

I have been retained on behalf of the church to demand that you immediately cease abusive and threatening telephone calls, offensive language, threats of physical harm and other inappropriate contact to its members and board. As the church had to take the extraordinary measure of having to call the sheriff's department to have you removed from the premises, this letter is intended to make clear that you are not to come back onto the church property. Any attempt to come on the church property or on the pastor's residence for any reason will be viewed as criminal trespass. In such an event, the authorities will be contacted immediately and your arrest sought.

Moreover, you have and continue to make threatening and harassing phone calls to the pastor [and] members and deacons of the church. Please cease and desist all such harassing calls. Continued calls threatening the pastor's life, health or his family will be deemed harassment pursuant to [state law] and dealt with the to full extent as allowed by law. The church and [its pastor] desire to end this unfortunate turn of events peaceably. Therefore, they ask that you go your separate way and refrain from any future contact with the church, its pastor, deacons or members.

The act of informing the members of the church of disciplinary or expulsion actions is as much within the rights protected by ecclesiastical abstention as is the church's right to take such actions, even though it may carry some kind of negative implication about the expelled member.

Owen's lawsuit alleged that these statements were false and defamatory. According to the complaint:

My reputation for good character in the community and in the church has been damaged or destroyed by the false accusations made by the pastor against me. Indeed, the pastor caused me to be expelled from my lifelong church. The attorney's letter to me, which the pastor read to the church congregation ordered me not to come back upon church property and stated that if I did so the pastor would be arrested for the crime of trespassing.

The trial court dismissed the lawsuit on the basis of the so-called ecclesiastical abstention doctrine, which generally bars the civil courts from resolving internal church disputes over matters of doctrine or the qualifications of members. Owen appealed. A state appeals court affirmed the trial court's dismissal of Owen's lawsuit. The court explained the ecclesiastical abstention doctrine as follows:

The overriding rule remains that courts cannot intrude into purely religious decisions. Thus, as with any other claim brought in the context of an intrachurch dispute, the question is whether the defamation claims can be determined without running afoul of the First Amendment. That means, can the specific defamation claim alleged herein be adjudicated "without extensive inquiry … into religious law and polity" and "without resolving underlying controversies over religious doctrine?" That includes inquiry into religious law, court examination of religious belief, or court review of the correctness of the church tribunal's decision.

If, to resolve the particular claim brought, a court would need to resolve underlying controversies over religious doctrine, then the claim is precluded [citing the United States Supreme Court's 1976 ruling in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976)]. Where the allegedly defamatory statements refer to or are based upon religious doctrine or church governance, resolution of the truth or falsity of those statements, a determination critical to a defamation action, would require courts to inquire into and resolve issues of church teachings and doctrine, clearly matters of ecclesiastical cognizance.

The court concluded that "it is clear that the exclusion of a member is an intricate part of church governance and, as such, the courts will not interfere." Owen insisted that the ecclesiastical abstention doctrine was inapplicable since he is not challenging or seeking compensation related to the decision to exclude him from membership in the church but, rather, is seeking compensation for the defamatory statements in the letter. The court disagreed, noting that "the ecclesiastical abstention doctrine does not cloak only the disciplinary or expulsion decision itself, but also statements made attendant to the decision." It continued:

The protection afforded by the First Amendment to church disciplinary proceedings applies to statements made after the church's decision if the statements or actions are merely implementation of, still part of, inextricably related to, or a consequence of the decision …. Thus, the church's communication of the fact and reason for excommunication are protected from judicial inquiry and review.

Announcing an expulsion or disfellowship to the members of a church is part of the disciplinary proceedings, particularly where instruction to church members regarding the expelled party is part of the church's belief and practice. Thus, the act of informing the members of the church of disciplinary or expulsion actions is as much within the rights protected by ecclesiastical abstention as is the church's right to take such actions, even though it may carry some kind of negative implication about the expelled member.

Statements to church members in regard to disciplinary actions against other members are privileged for the same reasons that the membership decision is protected [quoting Anderson v. Watchtower Bible & Tract Society, 2007 WL 161035 (Tenn. Ct. App. 2007)].

What this means to the church

This case illustrates the reluctance of the civil courts to resolve internal church disputes involving the discipline or dismissal of members. This reluctance led the court to reject Owen's claim that he had been wronged despite the fact that the pastor read the attorney's letter to the congregation. 2009 WL 3518184 (Tenn. Ct. App. 2009).

Legal Developments

Expelled Church Members Sue Church, Directors and Officers

Court agrees to resolve former members’ complaint.

Richard R. Hammar, Attorney, CPA
Bio

Key point. According to the minority view, the civil courts may engage in "marginal review" of disputes involving the discipline of a church member, in a few limited circumstances if they can do so without inquiring into religious doctrine or polity. For example, a few courts have been willing to review membership dismissals in one or more of the following limited circumstances: (1) the church interfered with a member's civil, contract, or property rights; (2) the disciplining body lacked authority to act; (3) the church failed to comply with its governing documents; (4) the church's decision was based on fraud or collusion; or (5) interpretation of contested terminology in the church's governing documents.

A Hawaii court ruled that it was not barred by the First Amendment from resolving a complaint by several expelled church members challenging the legality of their expulsion.

A group of church members (the "plaintiffs") sued their church, and its directors and officers, alleging that the church was operated for profit, and that church funds and assets had been misused for the pastor's personal benefit. They also asked the court to recognize their legal right, under the state nonprofit corporation law, to inspect the church's financial records. The plaintiffs' lawsuit contained the following allegations:

The church was a nonprofit corporation that had been granted a charter of incorporation by the state on the condition that it was "not organized for profit, that no part of [the church's] assets, income, or earnings shall be withdrawn or distributed to any of its members, and that officers, employees, or members of [the church] would not be paid for services that were not rendered or to be rendered to [the church]."

  • The church paid for various properties being used by the pastor and his family members as personal residences.
  • During a two year period the pastor and his family had been paid nearly $500,000 in compensation and benefits by the church.
  • The church authorized the pastor and members of his family to lease expensive automobiles.
  • The church breached its fiduciary duties, obtained secret profits, wasted corporate assets, jeopardized its tax-exempt status, and conducted a faulty election of the church's directors in violation of the church bylaws.
  • There existed various other accounting discrepancies and financial irregularities pertaining to the governance of the church.

Following the filing of the lawsuit, the church expelled 156 of its members, including the plaintiffs. The church then asked the court to dismiss the lawsuit on the ground that the plaintiffs were no longer members and therefore lacked standing. The church also insisted that under the so-called "ecclesiastical abstention doctrine" the court had no jurisdiction to resolve what amounted to an internal church dispute.

The plaintiffs asserted that by incorporating under the state nonprofit corporation law the church voluntarily submitted itself to the jurisdiction of the civil courts; and, that because the church's act of expelling them from the congregation was not "fair and reasonable" as required by the nonprofit corporation law and violated the Church's own bylaws, they had standing to bring their lawsuit. Further, they claimed that since they were never lawfully expelled from the church, they were still members and had the right to under the state nonprofit corporation law to inspect the church's financial records.

The plaintiffs claimed that the ecclesiastical abstention doctrine did not prevent the court from resolving their claims since (1) they were alleging "secular causes of action and not non-reviewable matters of church polity or doctrine"; and (2) a determination that the church violated its bylaws, and state law, in expelling the 156 members would not require the court to make "any constitutionally prohibited inquiry into doctrinal matters or religious law."

The appeals court began its opinion by noting that it had to decide "whether the expelled church members can use the Hawaii Nonprofit Corporations Act as a vehicle for enforcement of the church's bylaws despite the constitutional doctrine of ecclesiastical abstention." The court concluded that the ecclesiastical abstention doctrine did not prevent it from resolving the plaintiffs' wrongful expulsion claim, or from recognizing their legal right to inspect church records.

The court made a distinction between hierarchical and congregational churches. Hierarchical churches have their own established rules for discipline and internal government, and tribunals "tied to and based on ecclesiastical law developed over long periods of time …. To delve into the decision-making processes of these bodies would entangle a court into the religious thicket."

But, in a congregational church there is no body of ecclesiastical law to invoke, no internal tribunal to appeal to. A member of a congregational church, seeking the aid of the court in protecting his civil and property rights, may appeal only to the simple and fundamental principles of democratic government which are universally accepted in our society. These principles include the right to reasonable notice, the right to attend and advocate one's views, and the right to an honest count of the votes.

Such rights are fundamental to our notions of due process. They are neutral principles of law, applicable not only to religious bodies, but to public and private lay organizations and to civil governments as well. Courts must apply them every day, and can do so without any danger of entering a religious thicket. Therefore, the authorities which preclude the courts from examining whether an hierarchical church correctly followed its own internal procedures, or correctly applied its canon law, are inapposite to the question before us.

Similarly, the ecclesiastical abstention doctrine did not prevent the court from enforcing the plaintiffs' right, under the state nonprofit corporation law, to inspect the church's financial records since such a decision "would not involve any religious or ecclesiastical matter." Baldonado v. Way of Salvation Church, 185 P.3d 913 (Hawaii App. 2008).

Legal Developments

Woman Sues Pastor for Divulging Confidential Information

Court rules that the First Amendment prevents it from resolving case.

Richard R. Hammar, Attorney, CPA
Bio

Key Point 6-10.1 According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the first amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

The Texas Supreme Court ruled that the First Amendment guaranty of religious liberty prevented it from resolving a dismissed church member's claim that her pastor committed "professional negligence" by using information she shared with him in confidence as the basis for disciplining her.

A church endeavored to operate according to biblical principles and practices as described in the church's constitution and statement of faith. The church required all membership applicants to affirm their willingness to abide by the church's constitution, which contains the following disciplinary policy:

We believe that one of the primary responsibilities of the church is to maintain the purity of the Body. We are directed by God to be holy. In recognition of the importance of this obligation, the elders will biblically and lovingly utilize every appropriate means to restore members who find themselves in patterns of serious misconduct. When efforts at restoration fail, the elders will apply the Biblical teaching on church discipline, which could include revocation of membership, along with an appropriate announcement made to the membership (Matthew 18:15-17; 1 Corinthians 5:1-5; Galatians 6:1, Galatians 6:2; 2 Thessalonians 3:6).

The church's constitution provided that, if a member engaged in conduct that "violates Biblical standards, or which is detrimental to the ministry, unity, peace or purity of the church," and the member is unrepentant, "the elders will follow our Lord's instructions from Matthew 18:15-20," which states: "If your brother sins, go and show him his fault in private; if he listens to you, you have won your brother. But if he does not listen to you, take one or two more with you, so that by the mouth of two or three witnesses every fact may be confirmed. If he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, let him be to you as a Gentile and a tax collector."

If a member remained unrepentant and chose not to resign, the constitution instructed the church elders to revoke the person's membership and announce his or her removal to the congregation. The church's stated goal is "to encourage repentance and restoration of fellowship with the Lord and His people."

A woman (the plaintiff) became a member of the church. In applying for membership, she signed an application in which she expressed her agreement with the church's beliefs and affirmed her willingness to abide by the church constitution.

The plaintiff separated from her husband, and thereafter the couple participated in a series of weekly counseling sessions at the home of their pastor, who was also a licensed professional counselor. The plaintiff alleged that the Bible was not discussed in these sessions and she considered them to be a professional counseling relationship with the pastor in his role as a licensed professional counselor.

The plaintiff later informed the pastor that she had decided to divorce her husband, and that she had engaged in an extramarital sexual relationship. When the pastor informed her that her extramarital sexual relationship would trigger the church's disciplinary process, she informed him that she was resigning her membership.

A few days later the pastor and church elders wrote a letter to the church membership concerning the plaintiff. The letter explained to the congregation that the plaintiff intended to divorce her husband, there was no biblical basis for the divorce, she had engaged in a "biblically inappropriate" relationship with another man, and she had rejected efforts to bring her to repentance and reconciliation.

Describing the disciplinary process as one of "tough love," the letter encouraged the congregation to "break fellowship" with her in order to obtain her repentance and restoration to the church body. The letter admonished the congregation to treat the matter as a "members-only issue, not to be shared with those outside the congregation."

The plaintiff sued the pastor, church, and church elders alleging defamation, professional negligence, breach of fiduciary duty, and emotional distress. The professional negligence claim was based on the pastor's breach of an alleged "secular duty" to refrain from disclosing confidential information shared with him during counseling sessions.

The church defendants claimed that the plaintiff's claims all arose in the context of a church disciplinary matter which the First Amendment placed beyond the jurisdiction of the civil courts. A trial court agreed with the church defendants, and dismissed the lawsuit. The plaintiff appealed, but only with respect to her claims against the pastor. A state appeals court affirmed the dismissal of all of the plaintiff's claims except for her professional negligence claim which the court concluded could be resolved without violating the First Amendment. The pastor appealed to the Texas Supreme Court.

The church autonomy doctrine

The court began its opinion by acknowledging that "when a pastor who holds a professional counseling license engages in marital counseling with a parishioner, the line between the secular and the religious may be difficult to draw."

The court noted that "while it might be theoretically true that a court could decide whether the pastor breached a secular duty of confidentiality without having to resolve a theological question, that doesn't answer whether its doing so would unconstitutionally impede the church's authority to manage its own affairs.

Churches have a fundamental right to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." The court stressed that "it is a core tenet of First Amendment jurisprudence that, in resolving civil claims, courts must be careful not to intrude upon internal matters of church governance. It quoted from a landmark decision of the United States Supreme Court:

The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it.

But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872).

As a result, "the autonomy of a church in managing its affairs and deciding matters of church discipline … or the conformity of the members of the church to the standard of morals required of them" has long been afforded broad constitutional protection."

The neutral principles exception

The court acknowledged that the United States Supreme Court has recognized a narrow exception to the church autonomy doctrine when "neutral principles of law" may be used to resolve disputes over ownership of church property. The plaintiff asked the court to apply the neutral principles exception to her professional negligence claim, claiming that it could be resolved under neutral legal principles without resorting to or infringing upon religious doctrine.

Specifically, she asserted that the primary focus of her complaint was not the letter the church sent to the congregation or the church's disciplinary process. Rather, it was the pastor's disclosure to the church elders of confidential information he obtained during the marital counseling sessions, which she claimed constituted a breach of professional counseling standards. The court was not persuaded that her claim could be resolved without implicating religious considerations:

It is true that the plaintiff pins the pastor's liability … on his breach of a secular duty by disclosing confidential information to the church elders. However, this disclosure cannot be isolated from the church-disciplinary process in which it occurred, nor can [it be resolved] without examining what effect the imposition of damages would have on the inherently religious function of church discipline.

Subjecting the pastor to liability for engaging in the disciplinary process that the church requires would clearly have a chilling effect on churches' ability to discipline members and deprive churches of their right to construe and administer church laws …. In sum, while the elements of the plaintiff's professional negligence claim can be defined by neutral principles without regard to religion, the application of those principles to impose civil liability on the pastor would impinge upon the church's ability to manage its internal affairs and hinder adherence to the church disciplinary process that its constitution requires.

The court concluded

The secular confidentiality interest the plaintiff's professional negligence claim advances fails to override the strong constitutional presumption that favors preserving the church's interest in managing its affairs. She voluntarily became a member of the church body and agreed to abide by the church constitution; indeed, she expressed that she did so willingly. That constitution outlined the disciplinary process that would be followed if a member engaged in conduct that the church considered inappropriate. The pastor … assumed an obligation to the plaintiff and to the congregation to follow the church's constitution. Although the plaintiff contends pastoral counseling is not at issue because she did not receive marital counseling from the pastor in his capacity as a member of the clergy, the publication about which she complains was made in the course of the church disciplinary process and communicated by the pastor pursuant to the requirements of that process.

Even if the pastor's dual roles as secular counselor and pastor could be distinguished, which is doubtful, he could not adhere to the standards of one without violating the requirements of the other. Any civil liability that might attach for his violation of a secular duty of confidentiality in this context would in effect impose a fine for his decision to follow the religious disciplinary procedures that his role as pastor required and have a concomitant chilling effect on churches' autonomy to manage their own affairs. The result would be interference by the civil courts in the relationship among the church, its pastor, and the church members, which the First Amendment prohibits.

Resignation from church membership

The plaintiff claimed that her resignation from the church after she revealed confidences to the pastor "precluded any argument that he was performing a pastoral function in disseminating confidential information to the church."

The court disagreed. It noted that the church's constitution required the discipline of members to follow the procedure laid down in Matthew 18:1-35. According to this procedure, if a member sins and does not heed the counsel of church leaders, then the matter must be "told to the church." The court concluded that the church's decision to proceed with the formal discipline of the plaintiff following her resignation "was based on its interpretation of Matthew 18:15-20, an inherently ecclesiastical matter. We hold that court interference with that decision through imposition of liability in this case would impinge upon matters of church governance in violation of the First Amendment."

What this means for churches

What is the relevance of the Texas Supreme Court's decision to other churches? Obviously, the court's decision is binding only upon churches in the state of Texas. Nevertheless, the case represents one of the most extensive discussions of church discipline by any court, and as a result may be given special consideration (and no doubt be followed) by the courts of other states. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

  • This is one of the few courts to address the question of whether a minister can be liable for divulging confidential information. The court concluded that a pastor was not liable for divulging confidential information to his congregation regarding a member's confession of marital infidelity since the disclosure occurred in the context of administering discipline pursuant to the church's constitution.
  • The most significant church discipline ruling up until now has been a 1989 decision of the Oklahoma Supreme Court. Guinn v. Church of Christ, 775 P.2d 766 (Okla. 1989). In the Guinn case, the court reached the following conclusions: (1) The discipline of church members (i.e., persons who have not withdrawn from membership) is a constitutionally protected right of churches. (2) Discipline of persons who have withdrawn their church membership is not a constitutionally protected activity, and a church that engages in such conduct can be sued under existing theories of tort law. (3) Church members have a constitutional right to withdraw from church membership unless they have waived that right. (4) Statements by church leaders to church members concerning the discipline of current members are conditionally privileged—meaning that the disciplined member cannot successfully sue the church for making such disclosures unless the church acted maliciously (i.e., it either knew that the disclosures were false or made them with a reckless disregard as to their truthfulness).

It is important to note that the Texas Supreme Court deviated in two significant ways from the Guinn ruling: First, the court rejected the conclusion that the discipline of persons who have resigned their church membership is not a constitutionally protected activity, and a church that engages in such conduct can be sued under existing theories of tort law. The court stressed that the church's decision to proceed with the discipline of the plaintiff following her resignation "was based on its interpretation of Matthew 18:15-20, an inherently ecclesiastical matter," and that "court interference with that decision through imposition of liability would impinge upon matters of church governance in violation of the First Amendment."

Second, the Guinn court noted that a "qualified" or "conditional" privilege protects churches from liability for disclosing confidential information to members, but it concluded that this privilege does not apply to disclosures made to non-members. The Texas Supreme Court ignored this issue. It simply noted that the church sent a letter "to the congregation," without any indication if the recipients included both members and nonmembers. Perhaps the court concluded that its ruling did not require a discussion of the qualified privilege. That is, since the church's disclosure of the plaintiff's marital infidelity was constitutionally protected, it didn't matter to whom the disclosure was communicated. Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007).

Legal Developments

Membership and Reviewing Church Records

The Alabama Supreme Court ruled that church members who lost their membership lost their right as members to inspect church records.

Richard R. Hammar, Attorney, CPA
Bio

Key point 6-03.1.Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

The Alabama Supreme Court ruled that church members who lost their membership for violating a church bylaw ban on suing the church lost their right as members to inspect church records, and that the civil courts have the limited authority to determine if the church bylaws were duly adopted.

A dispute arose among the members of a church, which divided the congregation into two factions. One faction included the board of deacons (the "defendants"). An attorney for the other faction (the "plaintiffs") wrote a letter to the defendants, informing them that his clients wanted to exercise their legal right as members to inspect and copy the complete books, records, accounts and minutes of the church, including (1) church budgets; (2) all checking and savings accounts; (3) check registers; (4) bank statements; (5) certificates of deposit, money market funds, and other investments; (6) minutes of meetings of the trustees and deacons; (7) records of deposits, offerings collected at church services; and (8) donations, endowments or other records indicating sources of income. This request for inspection was prompted by the defendants' concern that various financial and property transactions entered into by the pastor and board of deacons had not been properly authorized by the church membership.

The defendants ignored this request to inspect records, which prompted the plaintiffs to ask a court to compel the defendants to respond. The defendants claimed that the First Amendment prevented the court from intervening in what amounted to an internal church dispute. While this case was pending, the board of deacons (who were members of the "defendant" faction) passed the following two resolutions which were then added to the church's "Standard Operating Procedures" (SOP):

Resolution #1. "Pursuant to biblical doctrine enumerated and commanded in 1 Corinthians 5:12 through 6:10 any and all members who bring or who are a party to a lawsuit, civil or otherwise, against the church or its leadership … shall be immediately placed on probation, without any further notice, and said probation shall operate as a removal from the membership rolls and an abolition of all memberships rights and privileges and shall not be allowed back to the church unless the pastor makes distinct stipulations otherwise."

Resolution #2. "Pursuant to Psalm 133:1-3, Proverbs 16:28, Proverbs 20:19, Proverbs 21:23, Proverbs 25:9, Romans 15:5-6, and in order to protect the unity and privacy of the church membership all church records shall remain confidential and shall not be distributed, inspected, viewed, copied, or otherwise viewed by any member, attendee, their agent, or any person without the express consent of both the pastor and deacons' board. The pastor and the deacons' board are the sole arbitrators of whether or not there is a proper purpose to grant an exception to this church rule. This section does not exclude or prohibit the pastor and deacons' board from viewing, distributing, or utilizing said records in the manner they believe necessary and proper for the pastor and the deacons' board to effectively operate the church in accordance with the Word of God."

A trial court ruled that the plaintiffs were members of the church, and that they had a legal right under the nonprofit corporation law to inspect the records of the church. The Alabama Nonprofit Corporation Act, under which the church had been incorporated, states: "All books and records of a corporation may be inspected by any member, director or officer, or his agent or attorney, for any proper purpose at any reasonable time." Ala. Code 10-3A-43. The Act defines a "member" as "one having membership rights in a corporation in accordance with the provisions of its articles of incorporation or bylaws." Ala. Code 10-3A-2(8). The court rejected the defendants' position that according to resolution #1 the plaintiffs no longer were members of the church because of the lawsuit they filed, and therefore they had no legal right to inspect church records. The case was appealed to the state supreme court.

The state supreme court noted that the Nonprofit Corporation Act (quoted above) "allows a nonprofit corporation to set forth, either in its articles of incorporation or in its bylaws, rules and procedures governing membership in the corporation." The church's constitution did not address membership qualifications. However, the defendants insisted that the church's "Standard Operating Procedures" constituted the church's bylaws, and that this document, as amended by the inclusion of resolution #1 (see above) effectively removed the plaintiffs as members of the church because of the lawsuit they filed.

The court agreed with the defendants' argument, assuming that the SOPs constitute the church's bylaws. But, it was not convinced that the SOPs in fact were the equivalent of bylaws. It pointed out that the plaintiffs alleged that (1) the SOPs were not the same as the church's bylaws, and (2) even if they were, the board of deacons did not have the authority to make membership termination decisions in the SOP. The court observed that "by claiming that the SOPs are not in fact the bylaws of the church and that resolution #1 was not validly passed, the plaintiffs are asserting that their membership has not been terminated by the appropriate authority in the church." The court conceded that "under limited circumstances" it could "review the actions of churches in expelling members [and] one of those circumstances is when a church member challenges whether her expulsion was the act of the authority within the church having the power to order it." The court concluded: "In this case, the court has jurisdiction for the limited purpose of determining whether the appropriate authority in the church has terminated the membership of the plaintiffs."

However, assuming that the SOPs amounted to the church's bylaws, the court concluded that the plaintiffs were no longer members and therefore had no right under the Alabama Nonprofit Corporation Act to inspect church records.

What this means for churches

This case demonstrates that there are some exceptions to the unwillingness of the civil courts to resolve internal church disputes. The court concluded that the state Nonprofit Corporation Act gave church members a legal right to inspect church records, but it noted that the Act defined a "member" according to the provisions of a church's articles of incorporation or bylaws. The main issue in this case was whether the church's SOP, as amended by resolution #1, constituted the bylaws of the church, and if so, if it was duly enacted. The court concluded that the civil courts could engage in this very limited review, consistently with the First Amendment guarantee of religious freedom.

Ex parte Board of Trustees, 2007 WL 1519867 (Ala. 2007).

Legal Developments

Accusations of Defamation

Statements concerning the discipline of members cannot be defamatory unless made with malice.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Accusations of Defamation

Statements concerning the discipline of members cannot be defamatory unless made with malice.

Richard R. Hammar, J.D., LL.M., CPA

Key point 4-02.03. A number of defenses are available to one accused of defamation. These include truth, statements made in the course of judicial proceedings, consent, and self-defense. In addition, statements made to church members about a matter of common interest to members are protected by a “qualified privilege,” meaning that they cannot be defamatory unless they are made with malice. In this context, malice means that the person making the statements knew that they were false or made them with a reckless disregard as to their truth or falsity. This privilege will not apply if the statements are made to nonmembers.

* A Kentucky court ruled that two dismissed church members could not sue the church and board of deacons for defamation as a result of statements made about them in the course of a disciplinary proceeding, since such statements were protected by a “qualified privilege.” A church established a “disciplinary committee” comprised of the deacons and senior pastor to address disciplinary matters involving members. If the disciplinary committee was unable to resolve an issue, the matter was referred to the congregation. The congregation could either admonish the offender or strip the offender of church membership.

A group of church members formed a “concerned members” group after a female member alleged that she had an extramarital affair with the pastor. The group wrote letters to the disciplinary committee demanding action, held meetings, and sent letters to members of the church. The disciplinary committee called a membership meeting to address the pastor’s alleged affair, and to recommend that the congregation terminate the membership of two members of the “concerned members” group. The disciplinary committee claimed that these two members spearheaded the “concerned members” group; encouraged the woman involved in the affair with the pastor to expose the relationship; and sent unauthorized mailings to church members. At the membership meeting, the deacons also made allegations of financial impropriety against the two members. The membership voted to expel the two members. In addition to holding the congregational meeting, the disciplinary committee sent out a letter to every person on the church’s mailing list containing the allegations made against the two members in the meeting.

The two dismissed members sued the church, the senior pastor, and the deacons, for defamation. A trial court dismissed the lawsuit, and the dismissed members appealed.

The appeals court began its opinion by noting that “issues of faith, internal organization, and church discipline are governed by ecclesiastical rule, custom, and law, and civil courts generally have no role in deciding such ecclesiastical questions.” The court also ruled that the “qualified privilege” that applies to statements made in the context of church discipline was recognized under Kentucky law. It quoted from an earlier Kentucky case: “Words spoken or written in the regular course of church discipline, or before a tribunal of a religious society, to or of members of the church or society, are as among the members themselves privileged communications, and are not actionable without express malice …. The courts appear to agree that in the absence of malice, members may discuss the character of their pastor, communicate rumors of misconduct to each other, and prefer charges whenever there appears to be any foundation therefor.”

The two dismissed members insisted that the oral and written statements concerning them were not privileged because they did not involve any church doctrine. The court disagreed: “This case involves statements made by the church’s disciplinary committee in the course of a church disciplinary matter. Specifically, this controversy requires the interpretation of the Discipline section of the church’s bylaws. Therefore, this controversy rests upon the interpretation of ecclesiastical matters, and thus the statements are privileged communications if made in the absence of express malice.”

The court noted that the qualified privilege does not confer absolute protection for statements made in the course of disciplinary matters. Rather, it protects statements only if they are not made with “malice.” In this context, malice means actual knowledge that a statement was false, or a “reckless disregard” regarding its truth or falsity. The two dismissed members asserted that the statements made by the disciplinary committee were malicious since they were designed to “send a warning of silence to other members of the church who were questioning the actions of the pastor.” The court concluded that the dismissed members “presented no evidence, apart from conclusory allegations based on suspicion and conjecture, indicating that the defendants were motivated by malice.”

Application. Many states recognize the qualified privilege defense to defamation. As this court noted, this defense applies to statements concerning the discipline of members. The court applied the defense to statements made by the disciplinary committee in the membership meeting as well as in letters sent to active voting members. According to the qualified privilege, statements concerning the discipline of members cannot be defamatory unless made with malice. This is a very difficult standard to prove, which means that communications addressing such matters generally will be defamatory only in exceptional cases. Note that several courts have restricted the qualified privilege to statements made to members, and that the privilege is lost if statements are made in a meeting or mailing to persons who are not members in good standing. So, to ensure the maximum application of the qualified privilege, church leaders should take steps to ensure that any statements concerning the discipline of a member are directed only to members, either in a membership meeting or in letters. If statements are communicated via letter, the letters should be addressed to active voting members on the church’s official membership roll; the envelope and letter should include the words “privileged and confidential”; and the letter should include a warning that the contents are to be read only by the member to whom it is addressed, and are not to be shared by the member with any non-member. Cargill v. Greater Salem Baptist, 2006 WL 1950663 (Ky. App. 2006).

Legal Developments

Inspecting Church Records

Most state nonprofit corporation laws give members a legal right to inspect corporate records for a “proper purpose.”

Richard R. Hammar, Attorney, CPA
Bio


Key point 6-03.1. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A New York court ruled that members of churches incorporated under the state nonprofit corporation law have a legal right to inspect church records so long as they act in good faith and for a proper purpose, and their request pertains to records that are relevant and necessary to the proper purpose.

A church member asked to inspect certain church records. When his request was denied, he asked a court to compel the church to turn over the records pursuant to a provision in the state nonprofit corporation law giving "any person who shall have been a member of record of the corporation for at least six months immediately preceding his demand" to have access to the records of the corporation. A trial court denied the member's request, but this ruling was reversed on appeal.

A state appeals court noted that while the member was no longer a member of the church's board of deacons, his status as a member of the congregation during the six months preceding his request to inspect church records was sufficient to trigger the right of inspection. The court further noted that the nonprofit corporation law permitted members to inspect corporate records only when acting in good faith and for a "proper purpose." The court concluded that both of these requirements were met in this case.

However, the court concluded that the member's description of the records he wanted to inspect was vague, and that "to the extent that the demand is over-broad, the [trial court] may exercise its discretion to narrow its focus so that the church is required to produce only those records that are relevant and necessary for [the member's] purposes.

What this means for churches

This case illustrates three important points. First, most state nonprofit corporation laws give members a legal right to inspect corporate records for a "proper purpose." As a result, members of churches that are incorporated under such a law have a legal right to inspect specified records. Second, a right of inspection only applies to members. The New York law confers a right of inspection only on persons who have been church members for the six months preceding their request for inspection. Third, a request for inspection will be denied, or limited, if it is "over-broad." That is, the church is only required to disclose records that are relevant and necessary to the request for inspection.

Smith v. Calvary Baptist Church, (N.Y.A.D. 2006).

Legal Developments

Disruptive Church Members

An adult male who exhibited bizarre behavior in his church and community could not be involuntarily committed to a psychiatric hospital since he was not a danger to himself.

Richard R. Hammar, Attorney, CPA
Bio


Key point 7-17. Churches do not have to tolerate persons who disrupt religious services. Church leaders can ask a court to issue an order barring the disruptive person from the church’s premises. If the person violates the order, he or she may be removed from church premises by the police, and may be found to be in contempt of court.

An Oregon court ruled that an adult male who exhibited bizarre behavior in his church and community could not be involuntarily committed to a psychiatric hospital since he was not a danger to himself.

A man (Don) went to church wearing underwear on the outside of his pants and either shirts or underwear wrapped around his head. He initially believed that he was to marry the pastor’s daughter that day, but after arriving at the church, he asked a number of other women to marry him. He became angry in response to church members’ reactions to him. He was taken to the hospital by members of the church. At the hospital, Don became belligerent and had to be forcibly taken to the floor by security guards and placed in restraints.

Don had a history of difficulties arising from his mental disorder. After having been stable for a number of years, his condition began to deteriorate after he stopped taking several medications that had been prescribed. Just prior to the incident at church, Don was involuntarily committed after he physically intimidated and threatened to kill his father and proclaimed that he was the savior and that he planned to be crucified in public.

Don was committed to a psychiatric hospital pursuant to a state law authorizing the civil commitment of persons who either cannot meet their basic needs or are a danger to themselves. A state court ruled that Don had been improperly committed since there was insufficient evidence that he met either ground for involuntary commitment. It concluded: “The record establishes at most a pattern of odd behavior suggesting that, unless Don received appropriate medical care, he was likely to engage in similar behavior again in the future. But there is no evidence that any of the events that made up that pattern of behavior actually led to or even were likely to lead to him being harmed in any way. Consequently, there is no reason to believe that, if he continued to behave in similar ways, his behavior was likely to result in harm to him.” 135 P.3d 397 (Ore. App. 2006).

Posted:

Legal Developments

Can a Church Dismiss Members Who Sue the Church?

Court refused to issue an order prohibiting the church from conducting a meeting to dismiss the 75 members for suing the church.

Richard R. Hammar, Attorney, CPA
Bio

Can a church dismiss members who sue the church? That was the issue before an Ohio court.

A local Baptist church experienced an ongoing internal dispute over whether or not to build a new sanctuary. A group of 75 members sued the church, pastor, and board of deacons, challenging certain decisions that had been made. The board of deacons later voted (9 to 5) in favor of recommending to the congregation that the membership of all 75 dissidents be terminated.

A congregational meeting was called to vote on the issue, but the dissidents immediately sought a court order preventing the meeting from occurring. The dissidents argued that their church membership was a valuable right (some of them were fifth generation members of the church) that was being denied by the church’s action. They also claimed that the church bylaws did not authorize the board to dismiss members for suing the church. The church bylaws did authorize discipline or dismissal on the basis of “immoral or un-Christian conduct,” but the dissidents argued that this language did not extend to lawsuits brought against the church. They stressed that the right to go to court for the redress of grievances is a fundamental civil right that was not specifically restricted by the church bylaws.

On the other hand, the church vigorously maintained that members who sue the church are guilty of “un-Christian” behavior since “there is a basis in Scripture for the exclusion from church membership of those who take church disputes outside the church for resolution.” The court agreed with the church, and refused to issue an order prohibiting the church from conducting a meeting to dismiss the 75 members for suing the church.

The court based its decision on a 1976 decision of the United States Supreme Court, in which the Supreme Court concluded that the civil courts must accept the decisions of hierarchical churches concerning discipline of members and clergy. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). The Ohio court acknowledged that a Baptist church is “congregational” rather than hierarchical in structure, and accordingly the Supreme Court’s 1976 decision did not directly apply in this case. However, the court concluded that there should be no distinction between congregational and hierarchical churches regarding the effect of their decisions to discipline members. The court observed:

Creating a different standard for civil court review of church disputes for hierarchical and congregational churches would create differing levels of government intrusion into church affairs, presumably with more intrusion in the congregational houses of worship. But courts and government, under the first amendment, are required to treat all religious faiths equally and neutrally …. In light of this fundamental principle of neutrality, a civil court could not allow the decisions of a hierarchical church to go unchallenged while making detailed inquiries into the practices of a congregational church. Accordingly, the [the Supreme Court’s Serbian decision] should extend to congregational churches …. A secular court should not resolve disputes over who can be a member of a particular church regardless of whether that church is hierarchical or congregational.

The court also relied on the following language from an 1871 decision of the United States Supreme Court:

All who unite themselves to such a body [the general church] do so with an implied consent to its government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. Watson v. Jones, 80 U.S. 679 (1871).

The Ohio court further observed that “recent cases from other jurisdictions support the concept that congregational churches are free from secular court scrutiny of their internal practices and discipline.” Noting that civil court review of church property disputes is very limited, the court concluded: “The first amendment concerns which militate against court entanglement with property disputes of religious groups would be even more strongly applicable to membership problems within churches. The question of who is one’s co-religionist is more nearly central to issues of faith and practice revered by the first amendment than secular concerns such as who has the deed to the house of worship.”

What this means for churches

This case is important because it supports the right of churches to dismiss members for suing their church. Further, the court conceded that the 75 members who sued their church had violated a church bylaw prohibiting “un-Christian” conduct. A church wishing to impose discipline on members who sue the church should amend its bylaws to clarify that suing the church will be deemed unscriptural and unacceptable conduct. Appropriate scriptural references (e.g., 1 Corinthians 6:1-8) should be cited. Alexander v. Shiloh Baptist Church, 592 N.E.2d 918 (Ohio Com. Pl. 1991).

Legal Developments

Bankruptcy

Is it appropriate for a creditor to persuade church elders to excommunicate a church member

Richard R. Hammar, Attorney, CPA
Bio

Is it appropriate for a creditor to persuade church elders to excommunicate a church member who declared bankruptcy?

No, ruled a federal appeals court. A church member filed a bankruptcy petition, resulting in a court order prohibiting any attempts by any creditors to collect their debts against him. One creditor contacted the member's church elders and attempted to persuade them to excommunicate the member for filing the bankruptcy petition (which the creditor claimed to be unscriptural conduct).

The debtor sued the creditor for violating the court's prohibition of any effort to collect the debt, and the court awarded punitive damages to the church member. Federal law permits a bankrupt debtor to sue creditors who violate such court orders, and punitive damages may be awarded in appropriate circumstances. The court had "no trouble" in awarding punitive damages against the creditor in this case.

"In particular, we point to the efforts by the creditor … to have the debtor excommunicated from his church. Thus, the creditor not only willfully failed to fulfill its obligations under the [bankruptcy] code, it brazenly attempted to punish the debtor for pursuing his rights given by the code. Such reprehensible conduct more than adequately proves the 'appropriate circumstances' necessary for punitive damages." This case illustrates the danger that creditors face when they attempt to collect a debt from a bankrupt debtor by seeking the help of church leaders. In re Knaus, 889 F.2d 772 (8th Cir. 1989).

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