Court Allows Pastor’s Wrongful Dismissal Lawsuit to Proceed

What church leaders should note about this surprising decision by a federal court in Ohio.

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State: Ohio
Categories: Clergy - Removal

Key point 2-04.02. Some courts are willing to resolve disputes over the termination of clergy if they can do so without any inquiry into religious doctrine.

A federal court in Ohio refused to dismiss a minister’s legal challenge to his termination

since the termination may have been based on purely secular grounds and a court could potentially resolve the minister’s lawsuit without implicating church doctrine or polity.

This decision represents a surprising departure from numerous others made by state and federal courts, in which deference is shown to churches regarding pastoral dismissals based on constitutional considerations.

Churches contemplating the dismissal of a pastor should note this ruling and the important cautions and reminders it offers.

Pastor: Elders sought to alienate him from his church

In 2020, a pastor alleged that two church elders (the defendants) took it upon themselves to cost him his position by interfering with, and terminating his contractual relationship with, the church.

The pastor claimed that the defendants conspired to develop a scheme to alienate him from the church. Among other things, the pastor said the defendants allegedly arranged an unlawful meeting of select members to vote him out of his position and formally terminate his employment with the church.

The pastor asserted that the defendants did not have any authority under the church’s bylaws to call the election.

The pastor also said the defendants falsely asserted that they had obtained the requisite number and percentage of votes at the meeting to divest the pastor of his position with the church.

Background

The church hired the pastor in 2000.

On or about February 6, 2020, the defendants forwarded a letter to the pastor informing him that, as a result of the vote of the congregation, his employment relationship with the church had ended. The pastor asserted that the defendants provided the local police with a copy of the letter to serve as evidence that the pastor had been terminated.

The pastor claimed the defendants worked in concert and collaboration with the police department. The city assigned an off-duty police detail to accompany the defendants to a church service on February 9, 2020.

The pastor noted that before doing so, neither the city nor the police department sought or obtained a warrant to search the church.

When the defendants and police arrived at the church on February 9, 2020, the officers were dressed in their official police uniforms. The pastor claimed the defendants arranged for the church locks to be changed, and to restrict his access to the front entrance of the church (as well as prevent him from entering private areas inside the church, including his office).

According to the pastor, the church’s sound engineer was ordered to cut the microphone when the pastor began speaking to the congregation and the police officers threatened to arrest him “and have him dragged away in handcuffs” if he did not leave the pulpit because he was trespassing on church property.

The pastor agreed to leave and asked the defendants if he could quickly explain to the congregation why he would not be leading the services that day. This request was denied, and police officers escorted him from the church.

Pastor claimed wrongful dismissal

The pastor sued the defendants and the police officers, making a variety of claims pertaining to conspiracy and civil rights violations. The lawsuit also included a wrongful dismissal claim against the defendants. The defendants insisted that “multiple reasons existed for the termination of [the pastor].”

The court concluded:

Defendants . . . [assert] that the actions they took with respect to [the pastor] . . . were to save [the church] from financial ruin and foreclosure and not to violate [his] civil rights or participate in a conspiracy against him and, thus, there are no genuine issues of material fact regarding the attempt to terminate [him] and they are entitled to judgment as a matter of law.

However, the court noted that the defendants “provide alternative theories as to why [the pastor] was terminated,” precluding dismissal of the plaintiff’s claims.

The court therefore ordered the case to proceed to trial.

What this means for churches

Church leaders should note that this case deviates from the vast majority of rulings in which courts refuse to resolve internal church disputes involving the fitness or tenure of a pastor.

Most courts have concluded that the relationship between a church and its pastor inevitably implicates religious issues that are off limits to the courts due to First Amendment protections.

All courts would agree dismissed ministers seeking to challenge their dismissal cannot be adjudicated by the civil courts if doing so would involve interpretation of doctrine or polity, again due to First Amendment considerations.

While the decision by this court made it possible for this case to proceed, it remained to be seen whether a trial court ultimately could resolve this legal dispute without still running afoul of the First Amendment.

Nevertheless, this decision illustrates the caution church leaders must take when contemplating the dismissal of a pastor. The church’s bylaws must be reviewed to determine the proper process for a removal, since a failure to do so could offer a path for a court to decide if a dismissal was properly handled according to the church’s own governing documents.

Additionally, qualified local legal counsel should be consulted before pursuing a termination, both to ensure the church’s governing documents are followed and to ensure other neutral principles of law not invoking church doctrine or polity are correctly handled.

For additional insights on this topic, see the two case studies in “Civil Court Review of Clergy Termination Disputes—Limited Exceptions to the General Rule” in the Legal Library.

Couzens v. City of Forest Park, 2021 WL 2000399 (S.D. Ohio 2021).

Legal Developments

Board Possessed Legal Authority to Fire Its Pastor

State nonprofit corporation law factored heavily in the court’s ruling.

Richard R. Hammar, Attorney, CPA

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State: Maryland
Categories: Clergy - Removal, Officers, Directors, and Trustees

Key point 6-02.02. Churches are subject to the provisions of their governing documents, which generally include a charter and a constitution or bylaws (in some cases both). A charter is the state-approved articles of incorporation of an incorporated church. Most rules of internal church administration are contained in a constitution or bylaws. Specific and temporary matters often are addressed in resolutions. If a conflict develops among these documents, the order of priority generally is as follows—charter, constitution, bylaws, and resolutions.

A Maryland appeals court ruled that a church’s board of trustees had the legal authority to terminate a pastor even though this authority was not specifically mentioned in the church’s governing documents.

Background

In the summer of 2016, a man met with a pastor regarding his desire to start a church. During their discussions, it was agreed that the pastor’s son-in-law would serve as pastor of the new church. At a meeting in October 2016, the pastor and three additional parties signed articles of incorporation, which were submitted to the Maryland Department of Assessments and Taxation. The department accepted the new church’s articles of incorporation, thereby initiating its existence as a nonprofit corporation.

The first section of the church’s articles of incorporation provided that five named persons had been “elected by the members of the congregation . . . to act as trustees in the name and on behalf of said congregation. . . .”

The third section of the articles of incorporation defined the corporation’s purposes as follows:

The Corporation is organized as a church exclusively for religious, charitable, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States Revenue Law), including for such purposes, but not limited to, promoting the cause of Christ; advancing the kingdom of God; winning the unsaved; reaching the unchurched; encouraging the development of all members and others in Christian living; and engaging in any other activity that is in the furtherance of section 501(c)(3) tax-exempt purposes.

On November 27, 2016, the church held an “ordination and sending” service for its new pastor. On that same day, church members unanimously voted to install the church’s official constitution, which “made no mention of appointing or dismissing clergy but did provide that the officers of the church had the authority to conduct all of the business affairs of the church” (quoting a state appeals court).

The church board voted to remove the pastor

In late 2018 and early 2019, church trustees began discussing removal of the pastor due to his conduct, including:

“bringing a gun into the church and leaving it unattended and accessible to children”;

“resisting the creation of a school and summer camp”;

“a lack of organizational skills”; and

“attempting to organize a ‘bow shoot’ at [the church] despite being informed that [the church] was not insured for such activity.”

On March 3, 2019, the church’s board met and voted on the removal of the pastor:

[T]he Board of Trustees convened, with all seven elected board members and the pastor, a trustee by virtue of his position as pastor in attendance. Five elected board members voted to remove the pastor, and two trustees and the pastor voted in opposition. Following the meeting, the pastor was issued a letter instructing him to remain away from [the church] and to vacate the [parsonage] on or before April 5, 2019.

The church asked a local court to issue a non-adversarial “declaratory judgment” addressing the legal authority of the trustees to oust the pastor.

The pastor claimed that the church “trustees had no authority to remove him as pastor” since the state nonprofit corporation law contained “no language expressly authorizing the trustees to ‘control any operation of the church‘ aside from the church’s assets.”

The pastor also argued that the decision to remove him involved “ecclesiastical matters” that should have been left to the church to decide.

The church trustees claimed that the language of the state nonprofit corporation law was “not exhaustive and that the trustees acted within the scope of their corporate authority.”

The trustees had “the authority to terminate”

The trial court concluded that “the question of who possesses the authority under the relevant governing documents to authorize the removal [of a pastor], and the validity of those documents, is a non-ecclesiastical matter that the Court can resolve without trespass to the First Amendment.”

The court found that the church trustees acted within the scope of their corporate and statutory authority when they voted to end the pastor’s tenure. The pastor appealed.

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

Churches in Maryland formally organize as religious corporations and thus, the trustees, not the congregation, constitute the corporation. . . . “[T]he purpose of [religious] incorporations . . . [is] to enable the church to attend more readily and efficiently to their temporal affairs, without any power or authority to interfere with forms of worship, articles of faith, or any other matter, relating strictly to spiritual concerns.” . . . [The Maryland Religious Corporations Law] states: “[u]nless otherwise provided by law or its charter, a Maryland corporation has the general powers, whether or not they are set forth in its charter,” to perform “every other act not inconsistent with law which is appropriate to promote and attain the purposes set forth in its charter.” Thus, a corporation’s board of directors [including a religious corporation’s board] has the power to manage “[a]ll business and affairs of a corporation. . . .”

Here, while the church’s incorporation documents did not expressly provide for the appointment or removal of a pastor, the trustees were clearly the “body corporate” and there were no documents conferring any authority to the congregation.

The court also found that the church never adopted a new or different constitution, and therefore, “the authority to terminate [the pastor] was vested in the governing body, i.e., the trustees. . . . As such, the trustees properly acted in accordance with their corporate authority.”

In responding to the pastor’s argument that the trustees lacked authority to terminate him because the firing of a pastor is an ecclesiastical matter reserved to the church, not the trustees, the court noted: “[H]ere, there was simply no evidence that the Board’s decision was based on disputes regarding religious doctrine, biblical interpretations or other ecclesiastical matters.”

Rather, the court added, the pastor’s “‘personal behaviors, organizational shortcomings, inability to manage . . . drove’ the decision.”

The court concluded: “In sum, the [church’s] Board of Trustees, in accordance with its Articles of Incorporation and applicable statutes, had the authority to terminate [the] pastor.”

What this means for churches

There are three points to note about this case.

First, the court concluded that the civil courts do not necessarily have to refrain from resolving all internal church disputes. The resolution of such disputes is barred by the First Amendment only in disputes regarding “religious doctrine, biblical interpretations or other ecclesiastical matters.”

Second, the court applied state nonprofit corporation law in determining the procedure for removing the church’s pastor since the church had not addressed this issue in its governing documents.

This illustrates the basic principle that state nonprofit corporation law is a “gap filler.” An incorporated church is generally free to address issues of administration and governance in its articles and bylaws in any manner it chooses, free from state interference. But, if a church neglects to address an issue in its governing documents, then state nonprofit corporation law will provide the answer.

Third, the case illustrates the legal effect of incorporation. Does it make a church subordinate to state corporate law? No. The court explained:

Churches in Maryland formally organize as religious corporations and thus, the trustees, not the congregation, constitute the corporation. . . . “[T]he purpose of [religious] incorporations . . . [is] to enable the church to attend more readily and efficiently to their temporal affairs, without any power or authority to interfere with forms of worship, articles of faith, or any other matter, relating strictly to spiritual concerns.”

Once again, churches can revise their governing documents to provide for any contingency, including the removal of a pastor. Vaughn v. Faith Bible Church, 241 A.3d 1028 (Md. App. 2020).

Legal Developments

State Supreme Court Addresses Pastor’s Rescinded Resignation

The central issue was the pastor’s status, a question the court was barred from resolving by the constitutional protection of religious liberty.

Richard R. Hammar, Attorney, CPA

Bio

State: Alabama
Categories: Breach of Contract, Clergy - Removal, Judicial Resolution of Church Disputes

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

The Alabama Supreme Court addressed the question of whether a pastor who had resigned his position could later retract his resignation.

At a church business meeting in 1995, a church appointed a new pastor. The church operated with its new pastor for a number of years without conflict. By 2012, however, a rift had formed between the pastor and board of deacons which led to the pastor’s termination, as described in a letter to him from the board:

The listed deacons called the meeting for the purpose of informing the body of some of their concerns regarding the welfare of the church that need immediate attention. A few of the things that were discussed were the falling off of member attendance, the falling off of tithes and offerings, the incorporation of the church being ignored, your lack of spiritual and financial leadership, the $187,000 [of] steel that is lying in the parking lot, and your holding a grudge against us that has not been revealed to us. Your consistently refusing to meet with the board of deacons has brought us to where we are today.

After discussing these topics and a few others, there was a motion from the floor for your termination, which was seconded. After putting this to a vote, the majority present voted for your termination. Regretfully, this is to inform you that your services to St. Union as pastor are no longer needed as of Monday, August 13, 2012. We hope you will accept the majority vote and move on pleasantly.”

The pastor declined to leave his position, however, and, on October 13, 2012, held another church meeting at which he asked those present to vote whether they wanted “the pastor to stay” or “for the deacons to remain.” The minutes of that meeting indicate that 37 members voted for the pastor and 10 members voted for the deacons.

For two years this situation remained at a stalemate, with the pastor continuing to serve as pastor and the deacons continuing to perform at least some of their traditional duties. The conflict between them continued, however, and eventually the deacons, who continued to administer the church’s finances, at some point stopped paying the pastor’s salary. Thereafter, the pastor told the congregation that he would resign if he was paid the money he was owed consisting of the salary that had been withheld by the deacons. The pastor and board began negotiations, and, on November 30, 2014, the pastor submitted his resignation. The pastor signed an “agreement” with the church in which he agreed to resign as pastor of the church in exchange for $16,600. He thereafter negotiated a check in that amount issued to him by the church.

A few weeks later, the pastor rescinded his resignation, stating that he was doing so at the request of the members of the church who had, he stated, told him that they would not accept his resignation. However, the pastor did not repay the $16,600 the church had paid him to resign. The next day, the church sent the pastor a letter reminding him of their agreement and advising him that legal action would be taken if he did not honor the agreement. On December 23, 2014, the threatened legal action was commenced when the church, acting through the five deacons who were now serving as its officers and directors, sued the pastor, alleging breach of contract and trespass and asking the trial court to issue a restraining order banning him from the church premises. On December 24, 2014, the trial court entered the requested restraining order. The court explained its judgment as follows:

The heart of the dispute and litigation in the present case is whether the pastor is or is not the pastor of the church. The choice of a pastor for a church is based wholly on Biblical principles for which a court cannot interfere without violating the United States Constitution and the Constitution of the State of Alabama. All cases adjudicated by the Alabama Supreme Court throughout its history have respected this principle. The congregation … by majority vote must choose or terminate its pastor. This court nor the legislature through its business organization statutes nor any church member or minority group of members can alter this principle.

The dispute over whether the pastor resigned or not and if he did whether he may be rehired as pastor is for the majority of the congregation to decide …. The central, substantive dispute is whether the pastor is or is not the pastor and such is wholly spiritual and ecclesiastical in nature and the court cannot interfere (emphasis added).

The state supreme court agreed with the trial court that the central issue was the pastor’s status, a question it was barred from resolving by the constitutional protection of religious liberty. It concluded: “As the trial court implicitly recognized … even if the pastor had resigned, there is still the question whether he could rescind his resignation or be rehired as pastor if that was the desire of the majority of the church’s members. Ultimately, only the congregation, not this court, can answer that question.”

The supreme court noted that the pastor had countersued the church for conversion, breach of fiduciary duty, unjust enrichment, breach of contract, and conspiracy, and sought an accounting of church funds from 2005 to the present, a temporary restraining order enjoining the church and its directors from expending any church funds, and an order requiring the church to turn over to the pastor all funds held on behalf of the church. The supreme court concluded that the gist of the pastor’s claims “is that the corporation and its directors have wrongfully refused him access to financial records of the church and to church funds, and he also makes vague allegations that the church and its directors have misused church funds. The church denies that the pastor has been refused access to any records, denies any misuse of church funds, and maintains that it is the proper party to control the church’s finances. Unlike the selection of a pastor, these are not ecclesiastical issues that a court lacks jurisdiction to consider.”

What this means for churches

Many courts have concluded that for-profit employers are under no legal obligation to rehire an employee who previously resigned his or her employment. Few courts have addressed this question in the context of church employment. This is one of the few courts to do so. The court’s conclusion was that the status of ministers, unlike most lay employees, implicates constitutional considerations, and that when a pastor resigns “there is still the question whether he could rescind his resignation or be rehired as pastor if that was the desire of the majority of the church’s members. Ultimately, only the congregation, not this court, can answer that question.”

It is possible, though unlikely, that one or more of the following resources may address an employee’s right to revoke a resignation, and so they should be consulted whenever a former employee seeks to revoke a prior resignation:

A church’s constitution, bylaws, or other governing document

The state nonprofit corporation law under which a church is incorporated

Robert’s Rules of Order Newly Revised

A policy manual

An employee handbook

One additional point: in order to avoid a discrimination claim under state or federal law, it is important for churches, like any employer, to treat members of a protected class under state or federal civil rights laws the same as other employees. So, for example, if a church has allowed some employees to revoke a resignation from employment, but has not offered this same accommodation to a member of a protected class, this could be the basis for an unlawful discrimination claim. St. Union Church v. Howard, 2016 WL 2848391 (Ala. 2016).

Legal Developments

The Liability of Knowing but Not Acting

Church Law and Tax Report The Liability of Knowing but Not Acting Key point 4-08.

State: Pennsylvania
Categories: Child Abuse Reporting, Clergy - Removal

Church Law and Tax Report

The Liability of Knowing but Not Acting

Key point 4-08. Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.

The Pennsylvania Supreme Court affirmed the felony conviction of a priest who worked in an administrative position with an archdiocese for “endangering the welfare of a child” for failing to take steps to protect children from a priest who had molested children. In 1992, a Catholic priest (the “defendant”) was appointed Secretary for Clergy for the Archdiocese of Philadelphia, where he served for 12 years, until 2004. As Secretary for Clergy, he was responsible for ensuring that parishes were filled with enough priests, resolving disputes among priests, and handling clergy sexual abuse issues. It was his responsibility to collect and assess information concerning allegations of sexual abuse against priests in the Archdiocese, discuss the allegations with the accused priests, participate in deciding how to address the allegations, and make recommendations to the Cardinal about the priests against whom allegations were made.

By his own account, the defendant was the sole “funnel” of information concerning instances of clergy sex abuse, and it was his office alone that was responsible for not only receiving the allegations and exploring them, but also for passing vital information about abusive priests and their young victims up the chain of command in the Archdiocese.

Although he could only independently remove a priest from a parish if that priest admitted that he had abused someone, it was the defendant’s responsibility to make recommendations about assignments to the Cardinal, who had the ultimate decision-making authority. For example, the defendant could make recommendations to place a priest on administrative leave or restrict a priest’s ministry by, for instance, prohibiting contact with the public or with children. In this respect, the defendant characterized protecting children as the most important part of his job, and explained that he worked “for” the children of the Archdiocese.

When the defendant first assumed the office of Secretary for Clergy in 1992, he collected information. In addition, his position authorized him to be one of the few officials within the Archdiocese of Philadelphia with access to the “Secret Archives.” The Secret Archives were located on the 12th floor of the Office of Clergy and maintained under lock and key; they contained information about “any kind of major infractions a priest would have,” and which only a “very, very limited number of people within the Archdiocese had access to or a key to.” The Secret Archives were largely in the defendant’s control as Secretary for Clergy, and he routinely consulted them to determine if there was already information relevant to a priest about whom he had received complaints.

In early 1994, after receiving accusations of inappropriate conduct by a priest in active ministry, the defendant consulted the Secret Archives and discovered documentation that this particular priest had engaged in serious sexual misconduct in the past. This discovery caused the defendant to become concerned that there were other priests in active service against whom allegations of abuse had been asserted, and this prompted him to conduct a comprehensive review of the Secret Archives to check for incidents of child sexual abuse among all priests in active ministry within the Archdiocese of Philadelphia.

This review encompassed 323 priests and resulted in a report created by the defendant that identified 35 priests in active service with previous complaints of sexual abuse of minors. The defendant placed each of these 35 priests on one of three lists: three priests were identified as “pedophiles;” 12 priests as “Guilty of Sexual Misconduct with Minors;” and 20 were included on a list titled “Allegations of Sexual Misconduct with Minors with No Conclusive Evidence.” Regarding the 12 priests that the defendant determined were guilty of sexual misconduct with minors, he considered it his job “to do something about them.”

The first name on the defendant’s list of priests whom he considered to be guilty of sexual misconduct with minors was Father Jones. The defendant was personally familiar with Jones due to previous investigations into allegations of alcoholism and the molestation of an 11-year-old boy. Jones had built a trusting relationship with this minor in his church, groomed him with attention outside of the church, and, on several occasions supplied him with alcohol and engaged in inappropriate sexual conduct. Jones often invited several boys to spend the night in his home, where he provided them with alcohol and wrestled with them. According to the victim, Jones continued this pattern of inviting him to participate in seemingly innocuous activities, and then groping him when vulnerable.

After the victim revealed the details of his sexual abuse to the defendant, Jones was sent to a mental health facility for six months for evaluation and treatment. His first post-discharge assignment was as a hospital chaplain. Despite his treating therapist’s concerns about the existence of other victims, and his recommendation that Jones be kept away from minors, Jones was allowed to reside in a nearby rectory owned by a church that operated a grade school. The defendant never shared with anyone his concern that Jones was guilty of sexual misconduct with minors, while housing him where he had access to grade school children.

Soon after moving into the rectory, Jones met a 10-year-old altar boy who assisted with religious services at the church. Following one service, and after everyone had left, Jones made the boy strip naked to music while telling him that “this is what God wants.” He then engaged in multiple sex acts with the boy. The effect of this abuse was devastating. The boy became withdrawn and began using drugs, which developed into a heroin addiction by age 17.

Ultimately, due to these and other wrongful acts, the Archdiocese of Philadelphia removed Jones from active ministry and rectory living, “or any other living situation in which he would have unrestrained access to children now or in the future.”

A district attorney in Philadelphia began to investigate the Archdiocese for clergy sex abuse. In 2002, a grand jury was empanelled at the request of the district attorney to investigate the Archdiocese’s treatment of allegations of such abuse. The grand jury subpoenaed documents from the defendant pertaining to priests accused of sexual abuse, and the defendant was summoned to testify repeatedly. In 2011, the district attorney charged the defendant with two counts of “endangering the welfare of a child” (EWOC), under a state law that provided, in part: “A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.”

The defendant sought to quash the charges of EWOC on the ground that he had “no connection whatsoever” to the children whose welfare he was accused of having endangered. The court rejected the defendant’s position, and the criminal prosecution against him proceeded to trial. The state introduced extensive evidence that the defendant’s handling of Father Jones’ case was not an anomaly, but was in accord with his established practice for dealing with sexually abusive priests. The evidence demonstrated that “he violated his duty to prevent priests from sexually molesting children in order to protect their reputations in furtherance of his objective to conceal the misconduct and to protect instead the reputation of the Archdiocese,” and that “evidence in the files of other priests revealed that the defendant routinely failed to act in his supervisory capacity to protect the welfare of children when faced with reports of priests who were raping, molesting, and acting immorally with these children, repeatedly [making] transfers to facilities where clergy could continue abusing children when trouble arose, and permitting abusing priests to continue in the ministry while keeping parents and law enforcement ignorant of the peril.”

After several months of testimony, the jury found the defendant guilty of EWOC on the ground that his frequent failure to remove pedophile priests constituted “knowing endangerment of the welfare of children” in violation of the statute. The conviction and sentence were reversed by a state appeals court, but were reinstated by the Pennsylvania Supreme Court in a ruling in 2015. The court concluded that one can commit the crime of EWOC without any direct supervisory responsibility over a child if his conduct knowingly endangers the welfare of children. The court concluded:

The Commonwealth’s evidence established that despite being responsible for responding to sexual abuse allegations against priests for the purpose of protecting the welfare of children, the defendant mollified victims of sexual abuse by falsely telling them their allegations were being seriously investigated and that the particular priest would never again be assigned around children, despite knowing that the priests under his supervision would merely be reassigned to another parish with no ministry restrictions on contact with children; he informed parishioners that the priests he transferred were moved for health reasons, leaving the welfare of children in jeopardy; he routinely disregarded treatment recommendations for priests; he failed to inform the relocated priest’s new supervisor about abuse allegations; he took no action to ensure that the abusive priest was kept away from children at his new assignment; he suppressed complaints and concerns by the colleagues of the priests; all with the knowledge that sexually abusive priests rarely had only one victim and that all of these actions would endanger the welfare of the diocese’s children. Finally, and even more egregiously, when the defendant was contacted by law enforcement, he misrepresented facts to thwart their investigation of these priests, and their crimes.

The plain reading and common sense of the phrase “supervising the welfare of a child” leaves little doubt that the defendant’s actions constituted endangerment of children. Further, the broad protective purpose of the statute, the common sense of the community, and the sense of decency, propriety, and morality which most people entertain, coalesce and are actualized in our conclusion that the defendant’s particular conduct is rendered criminal in accord with the EWOC statute … . The Commonwealth proved beyond a reasonable doubt that as Secretary for Clergy the defendant’s day-to-day responsibilities involved receiving allegations of clergy sexual abuse and reacting to them for the protection of the children of the Archdiocese from harm by sexually abusive priests over whose assignments he exercised significant influence. He endangered the welfare of [children] whose well-being he supervised, when he placed Father Jones in a position to have access to them.

What This Means For Churches:

This case is significant for one reason: it demonstrates the potential criminal liability that may befall a minister or denominational leader who fails to (1) take steps to protect minors from ministers who are known or reasonably suspected of having molested children, and (2) report such individuals to civil authorities pursuant to the state child abuse reporting law. Commonwealth v. Lynn, 2015 WL 1888582 (Pa. 2015).

Legal Developments

Churches and Revoking Pension

Church Law and Tax Report Churches and Revoking Pension Key point 2-04.1. Most courts have

State: Delaware
Categories: Clergy - Removal, Compensation and Benefits, Employment Practices

Church Law and Tax Report

Churches and Revoking Pension

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

A federal bankruptcy court in Delaware ruled that it was barred by the “ministerial exception” from resolving a dismissed priest’s claim that his diocese acted unlawfully in revoking his pension benefits based on his sexual abuse of minors. A Catholic diocese filed for bankruptcy protection under Chapter 11 of the bankruptcy code. The diocese had been named as a defendant in 131 child molestation claims involving several priests. The diocese entered into a settlement with the abuse victims in the bankruptcy proceedings. The settlement contained a provision stating that eight priests who had been dismissed by the diocese for abusing minors would be ineligible for benefits of any kind arising on or after the date of the bankruptcy petition, including benefits under the diocese “clergy pension plan.” One of the priests objected to the revocation of his benefits, claiming that this amounted to a breach of contract that could be adjudicated by the court without delving into religious doctrine.

In rejecting the priest’s claim, the court relied on the so-called “ministerial exemption” which generally bars the civil courts from resolving employment disputes between churches and clergy. The court quoted from a 2012 United States Supreme Court ruling that recognized and affirmed the ministerial exemption:

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012).

The Supreme Court concluded that an award of any relief, such as frontpay, backpay, compensatory and punitive damages, or attorney’s fees, would “operate as a penalty on the church for terminating an unwanted minister,” and was prohibited by the First Amendment.

The diocese argued that under the Hosanna-Tabor ruling, the bankruptcy court was barred from granting the priest any relief on account of his removal from ministry. The court agreed.

Hosanna-Tabor has made it clear that the Establishment Clause and the Free Exercise Clause bar the government from interfering with the decision of a religious group to fire one of its ministers. In the same vein, the Court is unable to require a church to “accept or retain an unwanted minister, or punish … a church for failing to do so.” Awarding any relief that would “operate as a penalty on the church for terminating an unwanted minister” is equally prohibited by the First Amendment, seeing as the award of such relief would depend on a determination that the church was wrong to have relieved the minister in question … .

Much like how awarding [the plaintiff] in Hosanna-Tabor with any relief (of frontpay, backpay, compensatory and punitive damages, or attorney’s fees) would operate as a penalty on the church for terminating an unwanted minister, awarding [the priest in this case] with relief for his claim of pension and sustenance would likewise effectively create a penalty or punishment upon the diocese for the removal of the priest from ministerial duties … . The court is barred, by the ministerial exception, from forcing the dismissed priest’s reinstatement into ministry, or awarding any form of relief that would come at the diocese’s expense on account of his removal … .

The ministerial exception exists in order to ensure that “the authority to select and control who will minister to the faithful … is the church’s alone.” The diocese (through the Bishop) chose to remove eight priests from ministry, and that decision remains the diocese’s alone. The granting of any claims for pensions, sustenance, or other forms of relief against the diocese would create a determination that the diocese was wrong to have relieved the ministers of their positions—a decision that the Supreme Court has already declared “strictly ecclesiastical,” and off-limits for the courts.

What This Means For Churches:

This case illustrates how some courts have construed the ministerial exception broadly to apply not only to cases involving termination of clergy, but also to collateral issues. As the Supreme Court noted in the Hosanna-Tabor case, the ministerial exception bars civil courts from awarding damages to dismissed clergy if doing so would have the effect of punishing a church for its decision to terminate a minister. In re Catholic Diocese, 513 B.R. 639 (D. Del. 2014).

Legal Developments

Churches’ Right to Remove Clergy

Church Law and Tax Report Churches’ Right to Remove Clergy Key point 2-04.1. Most courts

State: Texas
Categories: Charters, Constitutions, and Bylaws, Clergy - Removal

Church Law and Tax Report

Churches’ Right to Remove Clergy

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

A Texas court ruled that the civil courts are barred by the “ecclesiastical abstention doctrine” from resolving church disputes over the dismissal of ministers. In September of 2013 a pastor telephoned several church members to call a meeting for that evening. During the meeting the pastor confessed that he had taken money from the church to pay expenses for his sick mother. He asked the members if they wanted to retain him as pastor, and according to one of the attendees, most of the members present at the meeting agreed to forgive him and retain him.

One member disagreed, claiming that members had not received proper notice of the meeting. Ultimately, the pastor decided that a second meeting should be held the next evening. At the meeting the members again voted to retain him. The pastor believed that any issues related to his misappropriation of money had been resolved during these two meetings. But the following Saturday, as he arrived at church to prepare for the Sunday morning service, he was handed a letter stating that the church was terminating him for embezzling church funds. The letter was signed by two of the three board members listed in the church’s 2010 articles of incorporation filed with the Texas Secretary of State.

The pastor sued the two board members (the “defendants”), claiming that they had changed the church’s locks and unlawfully excluded him. He asked the court to issue an injunction restraining the defendants from interfering with his duties as minister. He claimed that neither defendant had the power to fire him because (1) one of the defendants had resigned from the church board, and the other had been removed, and (2) the church’s bylaws did not confer upon the directors the authority to terminate the minister.

The trial court determined that the two meetings called by the pastor did not comply with the church bylaws’ notice requirement, and that a special meeting complying with the bylaws’ notice requirement should be held. The pastor appealed.

A state appeals court noted that the so-called “ecclesiastical abstention doctrine” prevents the 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 noted that the church bylaws “contain provisions regarding the notice required for special meetings of members and directors, requiring that seven days’ notice be given at a regular worship service of the congregation or printed in the bulletin for special meetings of members.” The court noted that “no provision in the bylaws governs the basis for or manner in which a minister may be terminated,” and that “the bylaws did not specifically authorize directors to remove the minister.”

The court concluded: “The bylaws contain no provisions regarding termination of a minister. Thus, we cannot merely construe the bylaws under neutral principles of law to resolve the parties’ dispute … . Accordingly, we hold the trial court lacked jurisdiction over this dispute under the ecclesiastical abstention doctrine.”

What This Means For Churches:

The court referred to a recent ruling by the Texas Supreme Court, Masterson v. Diocese of Northwest Texas, 422 S.W.3d 594 (Tex. 2013). In Masterson, the Texas Supreme Court concluded that “whether a church’s vote to disassociate from a diocese complied with the church’s bylaws was reviewable using neutral principles of law to determine whether the church or the diocese owned the church building.” Masterson “reaffirmed that courts should defer to religious entities’ decisions on ecclesiastical and church polity questions,” but held that “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.” After Masterson, “it is unclear whether the propriety of the termination of a minister, which older cases seemed to suggest was a categorically unreviewable ecclesiastical question, may now be reviewed applying neutral principles of law in cases in which the question turns on the substance of a document to which neutral principles of law may be applied, such as an incorporated church’s bylaws.”

In this case the church bylaws were silent on how the pastor could be removed, and so the court could not apply neutral principles of law to interpret them. Anderson v. Truelove, 446 S.W.3d 87 (Tex. App. 2014).

Legal Developments

Seminary Professor Unable to Sue for Racial Discrimination

Ministerial exemption keeps court from getting involved in discrimination claims.

State: Kentucky
Categories: Clergy - Removal, Employment Practices

Church Law and Tax Report

Seminary Professor Unable to Sue for Racial Discrimination

Ministerial exemption keeps court from getting involved in discrimination claims.

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

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

The Kentucky Supreme Court ruled that the “ministerial exception,” which bars the civil courts from resolving employment discrimination claims between churches and clergy, prevented a seminary professor from suing his seminary for racial discrimination, but did not prevent him from suing the seminary for breach of contract. Founded in 1865, originally as the College of the Bible on the campus of Transylvania University, Lexington Theological Seminary is “an accredited graduate theological institution of the Christian Church (Disciples of Christ).” The stated mission of the Seminary is “to prepare faithful leaders for the church of Jesus Christ and, thus, to strengthen the church’s participation in God’s mission for the world.” In executing its mission, the aim of the Seminary is “to prepare women and men of varied backgrounds and traditions for ordained and other forms of ministry.” Consistent with this mission and the tenets of the Christian Church (Disciples of Christ), the Seminary is intentionally ecumenical with nearly half of its enrollment coming from other Christian denominations.

The Seminary’s Faculty Handbook detailed the procedure for termination of tenured faculty. Proceedings to dismiss a tenured professor could only be instituted by the president, the dean, or a member of the faculty. “The only grounds for dismissal of a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in this Handbook, or conduct detrimental to the Seminary.” Employed on an annual probationary basis, non-tenured faculty members may only be dismissed for cause, as well.

The Seminary began experiencing severe financial problems in 2009 amidst a nationwide economic downturn. During the period of July 2007 to January 2009, the Seminary saw its endowment shrink from roughly $25 million to $16 million. At that time, the Seminary had 10 full-time professors, 21 other full-time staff members, and a number of part-time instructors. To survive this “tsunami of economic disasters,” the Seminary decided to abolish a number of faculty and staff positions. The Board of Trustees approved eliminating tenured faculty. One of these was a tenured professor (the “plaintiff”) who had taught at the seminary for 15 years. Before terminating his employment, the Seminary offered him a severance package which offered an additional year’s employment with a year’s salary, conditioned upon the release of all potential claims against the Seminary. The plaintiff declined the offer. The Seminary restructured its curriculum and mission in an attempt to weather the financial chaos, opting to “emphasize practical training for clergy in areas such as financial management, conflict resolution and the use of technology … rather than … theology and biblical studies.”

Following his termination in 2009, the plaintiff sued the Seminary for breach of contract, breach of the implied duty of good faith and fair dealing, and discrimination based on race. The trial court dismissed all claims on the ground that they were barred by the “ministerial exception.” A state appeals court agreed, and the plaintiff appealed to the state supreme court.

The ministerial exception
The court began its ruling by affirming the ministerial exception: “Simply stated, the ministerial exception is a judicially created principle whereby the secular courts have no competence to review the employment-related claims of ministers against their employing faith communities.” The court noted that the ministerial exception has been applied to lay employees, seminary professors, hospital workers, press secretaries, musicians, and many others. It further noted that the United States Supreme Court, in a case unanimously affirming the ministerial exception in 2012, declined “to adopt a rigid formula for deciding when an employee qualifies as a minister.” Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012). The Court concluded that a called teacher in a Lutheran school was a minister under the ministerial exception in light of “the formal title given her by the church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the church.”

The plaintiff was a ministerial employee to whom the ministerial exception applied
In deciding whether the plaintiff was a ministerial employee, the court applied the four-factor test applied by the United States Supreme Court in the Hosanna-Tabor case:

1. the formal title given by the religious institution,
2. the substance reflected in that title,
3. her own use of the title, and
4. the important religious functions performed for the religious institution.

The court declined to “adopt a categorical rule regarding Seminary professors or any other class of individuals who may be considered ministers under the ministerial exception.” But, it concluded that the plaintiff was a minister: “[The plaintiff] is not ordained … but that is not dispositive. Given his extensive involvement in the Seminary’s mission, religious ceremonies, and the subject matter of his teaching, it is clear that he is a ministerial employee.” The court pointed to the following facts:

As a member of the faculty, the plaintiff was tasked with carrying out the mission of the Seminary to prepare students for the ministry of Jesus Christ.
The plaintiff’s teaching focused on “helping students understand what the basic socio-ethical issues are and the nature of the Christian (or Christ-like) response.” Some of the courses he taught included “Introduction to Christian Social Ethics,” “The Church and the Urban Poor,” “The Cultural Context of Ministry,” and “The Black Religious Experience in America.”
During his employment at the Seminary, the plaintiff participated in chapel services, convocations, faculty retreats, and other religious events. He preached on numerous occasions at both his own CME congregation and various Christian Church (Disciples of Christ) congregations.

The court concluded that the plaintiff “was closely connected to the tenets of the faith espoused by the Seminary and actively involved in the promotion of the Seminary’s mission. As a professor at an ecumenical Seminary, instructing on Christian principles, he served as a representative of the Seminary’s message. He has, on multiple occasions, served as the Seminary’s official representative, ambassador, and voice to the faithful.”

Discrimination claim
The court concluded that the ministerial exception barred the plaintiff’s race discrimination claim: “In Hosanna-Tabor, the Supreme Court made clear that the ministerial exception bars employment discrimination suits. And, in addition, the pre-Hosanna-Tabor case law regarding the interplay between anti-discrimination statutes and the ministerial exception is clear: these claims are barred. As a result, the plaintiff’s claim [of race discrimination] ends with the determination that he is a ministerial employee.”

The court observed, “Employment discrimination laws require employers to meet certain fairness standards in hiring and firing employees. Enforcing these laws on religious institutions, possibly against the religious institution’s sincerely held beliefs, goes to the core of the purpose behind the ministerial exception because the government would deprive the church of control over the selection of those who will personify its beliefs. A religious institution may hold beliefs that are discriminatory under a particular anti-discrimination statute and the ministerial exception acts to protect the religious freedom of those institutions no matter how distasteful society may find it or how strong the societal interest may be.”

Breach of contract claim
The court ruled that the plaintiff could pursue his breach of contract claim against the Seminary since: “(1) the enforcement of the contractual arrangement between the Seminary and the plaintiff does not arouse concerns of government interference in the selection of ministers, and (2) the contract does not involve any matters of ecclesiastical concern that would otherwise bar the suit under the ecclesiastical abstention doctrine.”

The court noted that “when deciding whether a claim is barred by the ministerial exception, it is important to remain mindful of the ministerial exception’s underlying purpose: to allow religious institutions, free from government interference, to exercise freely their right to select who will present their faith tenets. Although state contract law does involve the governmental enforcement of restrictions on a religious institution’s right or ability to select its ministers, those restrictions are not governmental restrictions. Simply put, the restrictions do not arise out of government involvement but, rather, from the parties to the contract, namely, the religious institution and its employee.”

The court stressed that “we are not presented with a situation where the government is inappropriately meddling in the selection of who will minister to the congregation. Limits on a religious institution’s ability to choose—or the criteria for choosing—who will minister to its faithful are not being foisted on the religious institution. The government had no role in setting the limits on how the Seminary’s tenured professors may be terminated. Instead, this is a situation in which a religious institution has voluntarily circumscribed its own conduct, arguably in the form of a contractual agreement, and now that agreement, if found to exist, may be enforced according to its own terms. That cannot breach church autonomy. Arguably, instead, this exemplifies religious autonomy because religious institutions are free to set forth policies that align with their respective mission.”

The court concluded:

The Seminary “willingly made a decision to offer tenure—a wholly secular concept—in exchange for professorial services. Providing substance to the offer of tenure, the Seminary explicitly stated in writing that it would only terminate a tenured professor on three grounds: (1) “moral delinquency,” (2) “unambiguous failure to perform the responsibilities outlined in [the Faculty] Handbook,” and (3) “conduct detrimental to the Seminary.” Of course, under the First Amendment, and the ministerial exception for that matter, the Seminary enjoys the right to excuse ministers as it sees fit. But here, the Seminary circumscribed its right to excuse faculty, ministers or not. The Seminary agreed to only express its First Amendment right under limited conditions.”

While the court permitted the plaintiff to pursue his breach of contract claim, it stressed that “reinstatement is an unavailable remedy because that would entail a secular court deciding who speaks for the church. That we cannot do.”

What This Means For Churches:

This case is relevant for two reasons. First, the court applied a four-factor test, first announced by the United States Supreme Court in the Hosanna-Tabor case, in determining if a person is a “minister” to whom the ministerial exception applies.

Second, the court concluded that while the ministerial exception bars discrimination claims by current or dismissed ministers, it does not bar breach of contract claims. The court concluded that the provisions of the Seminary’s Faculty Handbook pertaining to tenured positions was a “contract” between the plaintiff and Seminary, and the Seminary could be liable on the basis of breach of contract for violating its provisions. This, the court concluded, was not a matter of a civil court meddling in employment decisions between a Seminary and its faculty. Instead, it was simply a civil court enforcing the agreement privately entered into between the Seminary and plaintiff.

Not all courts will agree that breach of contract claims between churches and clergy are not barred by the ministerial exception. But, this possibility will exist in some states, which makes it imperative for church leaders to obtain legal review of employment handbooks and other contractual documents to ensure that they will not give rise to breach of contract claims that the civil courts may agree to adjudicate. Through careful drafting, this risk can be significantly reduced, if not eliminated. Kirby v. Lexington Theological Seminary, 426 S.W.3d 597 (Ky. 2014).

Legal Developments

Ministerial Exemption Prevents Court from Resolving Lawsuit

Texas court claims they’re unable to resolve wrongful dismissal claim.

State: Texas
Categories: Clergy - Removal, Employment Practices

Church Law and Tax Report

Ministerial Exemption Prevents Court from Resolving Lawsuit

Texas court claims they’re unable to resolve wrongful dismissal claim.

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

A Texas court ruled that the so-called “ministerial exception” prevented it from resolving a dismissed pastor’s lawsuit claiming that he had been wrongfully dismissed by his church. In 2009, a pastor entered into an employment agreement with a church. The agreement provided that the pastor would serve as pastor of the church for a five-year period with the possibility of two additional five-year terms. In 2011 the church terminated the pastor’s employment.

The pastor sued the church, and both state and national denominational agencies (the “church defendants”) for breach of contract and infliction of emotional distress. He sought damages for loss of future and past wages, punitive damages, and attorney’s fees. The trial court dismissed the pastor’s lawsuit on the basis of the “ministerial exception” which holds that the First Amendment guaranty of religious freedom prohibits the civil courts from resolving employment disputes between churches and clergy.

A state appeals court affirmed the trial court’s dismissal of the case. The court noted that the First Amendment’s guaranty of religious freedom “precludes, among other things, government action that burdens the free exercise of religion by encroaching on the church’s ability to manage its internal affairs.” To enforce this constitutional provision, “the courts have utilized the ecclesiastical abstention doctrine and the ministerial exception.” The ecclesiastical abstention doctrine “prohibits civil courts from exercising jurisdiction over matters concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” The ministerial exception “provides that civil courts lack subject matter jurisdiction to decide cases concerning employment decisions by religious institutions concerning a member of the clergy or an employee in a ministerial position.” The court noted that the United States Supreme Court unanimously affirmed the ministerial exception in 2012. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012).

The court concluded: “The pastor claims that the church harmed him by terminating his employment. To determine the efficacy of his claims, the courts would have to decide whether the termination of his employment was wrongful or premature. The free exercise clause of the Constitution prohibits the courts from reviewing employment decisions regarding ministers.” The court quoted from the Supreme Court’s decision in the Hosanna-Tabor case:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The court noted that if it were to second guess the church’s decision to terminate the pastor it would “deprive the church of its right to shape its own faith and mission by imposing an unwanted minister … . Further, any monetary award by the court would operate as a penalty on the church for terminating an unwanted minister. Clearly, failure to extend Hosanna-Tabor to the present case would result in the untenable consequence of the court establishing religion and preventing the free exercise thereof in violation of the First Amendment.”

What This Means For Churches:

This case illustrates the unwillingness of the civil courts to review decisions by churches to terminate ministers. It also demonstrates that this unwillingness extends not only to wrongful termination claims, but also related claims including defamation and emotional distress. Reese v. General Assembly of Faith Cumberland Presbyterian Church in America, 425 S.W.3d 625 (Tex. Ap. 2014).

Legal Developments

Ministerial Exemption Bars Court’s Ruling in Music Director’s Dismissal

Federal Court unable to resolve claim that director’s dismissal was based on age or disability.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Clergy - Removal, Employment Practices

Church Law and Tax Report

Ministerial Exemption Bars Court’s Ruling in Music Director’s Dismissal

Federal Court unable to resolve claim that director’s dismissal was based on age or disability.

Richard R. Hammar

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

A federal appeals court ruled that it was barred by the “ministerial exception” from resolving a church music director’s claim that he was dismissed in violation of federal laws prohibiting employment discrimination based on age or disability. A church’s music director (the “plaintiff”) oversaw the music department’s budget and expenditures, managed the sound systems and maintained the sound equipment, music room, and music area in the sanctuary, and rehearsed with members of the choir and accompanied them on the piano during services while running the soundboard. The plaintiff’s employment was terminated by the church, and he filed a lawsuit claiming that his termination was in violation of the Age Discrimination in Employment Act and the Americans with Disabilities Act. The church asked the court to dismiss the lawsuit on the basis of the ministerial exception, which generally bars the civil courts from resolving employment disputes between churches and clergy. A federal district court agreed that the ministerial exception applied, and it dismissed the case.

A federal appeals court affirmed the dismissal of the plaintiff’s claims. It relied on a 2012 ruling by the United States Supreme Court unanimously affirming the ministerial exception. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012). In the Hosanna-Tabor case, the Supreme Court ruled that “there is a ministerial exception” that “bars the government from interfering with the decision of a religious group to fire one of its ministers.”

The Starkman Test

In Hosanna-Tabor, the Supreme Court specifically declined to adopt a “rigid formula” for determining when an employee is a minister within the meaning of the ministerial exception, concluding instead that “all the circumstances of employment” must be considered.

In 1999, a federal appeals courtadopted a three-part test for deciding if a church employee was a minister for purposes of the ministerial exception. Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999):

First, this court must consider whether employment decisions regarding the position at issue are made largely on religious criteria … . Second, to constitute a minister for purposes of the “ministerial exception,” the court must consider whether the plaintiff was qualified and authorized to perform the ceremonies of the Church … . Third, and probably most important, is whether [the employee] engaged in activities traditionally considered ecclesiastical or religious, including whether the plaintiff attends to the religious needs of the faithful.

This three-part test became known as the “Starkman test” for determining ministerial status, and it was applied by several other courts. The court in the church music director’s case concluded that this test was no longer viable in light of the Hosanna-Tabor case:

Reviewing the arguments advanced by the parties … we conclude that the Supreme Court’s decision in Hosanna-Tabor at most invalidates and at least modifies Starkman‘s three-part test … . The Hosanna-Tabor Court engaged in a fact-intensive inquiry and explicitly rejected the adoption of a “rigid formula” or bright-line test. In light of this, Starkman‘s three-part test cannot survive in its precise form. First, given the totality-of-the-circumstances analysis in which the Hosanna-Tabor Court engaged, limiting the inquiry in ministerial exception cases to a three-part test is invalid … . Some of the facts the Hosanna-Tabor Court underscored may not be able to be considered under Starkman‘s three prongs, which would not be permissible. Second, because the Supreme Court eschewed a “rigid formula” in favor of an all-things-considered approach, courts may not emphasize any one factor at the expense of other factors. Thus, Starkman‘s “most important” factor—whether the plaintiff “engaged in activities traditionally considered ecclesiastical or religious”—may no longer serve as the gravamen of a ministerial exception case. However, this is not to place too great an emphasis on Hosanna-Tabor. Any attempt to calcify the particular considerations that motivated the Court in Hosanna-Tabor into a “rigid formula” would not be appropriate.

We are mindful of the benefit that clear standards provide to lower courts and religious employers seeking to structure their actions in accordance with the law. However, Hosanna-Tabor‘s rejection of a bright-line test likely reflects the diversity of religious practice in this country; given the pluralism of religious thought for which America is known and celebrated, it may not be possible to develop a one-size-fits-all approach to the ministerial exception … . Following the example of the Hosanna-Tabor Court, it is enough for us to conclude that, under the circumstances [the plaintiff] falls within the ministerial exception.

The Plaintiff’s Ministry

The crux of the plaintiff’s argument was that he merely played the piano during church services and that his only responsibilities were keeping the books, running the sound system, and doing custodial work, none of which was religious in nature. However, the court noted that “the performance of secular duties may not be overemphasized in the context of the ministerial exception.”

“The Hosanna-Tabor Court engaged in a fact-intensive inquiry and explicitly rejected the adoption of a ‘rigid formula’ or bright-line test. In light of this, Starkman’s three-part test cannot survive in its precise form.”

The church focused on the important role music plays in worship. It introduced evidence that all musicians, regardless of whether they are professional or volunteer or work full- or part-time, “exercise a genuine liturgical ministry.” An expert on canon law testified:

The church believes that music in the liturgy is sacred and has ritual and spiritual dimensions. Music enhances the prayer that occurs in the Catholic Mass by enriching its elements. It also draws the congregation closer to Christ, and allows the congregation to act together in celebration by singing praises and hymns to the Lord, which in turn strengthens the faith that is in them. Music is a part of the celebration and prayer that is occurring at the Mass and enhances the liturgy.

The court concluded that the plaintiff was a “minister” for purposes of the ministerial exception since playing the piano during worship “furthered the mission of the church and helped convey its message to the congregants.”

The plaintiff also insisted that he could not be considered a minister since he was not ordained and he did not conduct Mass, deliver a sermon, or write the music or lyrics for the ceremony, and lacked the education, training, and experience to be considered a minister. The court rejected this reasoning:

[The plaintiff’s] lack of formal training in Catholic doctrine is immaterial; this is because the ministerial exception does not apply only to those who are ordained. Moreover, the church introduced evidence, prepared by the United States Conference of Catholic Bishops and intended to aid in the preparation and celebration of the liturgy, that “as a matter of both religious belief and canon law, the Church considers music in the liturgy to be sacred, with ritual and spiritual dimensions; and a church musician to be a minister who shares faith, serves the community, and expresses the love of God and neighbor through music.” For Appellees, the argument is simple: Mass is the center of the Catholic faith, and the plaintiff was at the center of Mass.

The court noted that the Supreme Court in Hosanna-Tabor observed that “the heads of congregations themselves often have a mix of duties, including secular ones, such as helping to manage the congregation’s finances, supervising purely secular personnel, and overseeing the upkeep of facilities.” Accordingly, “that the plaintiff lacked the religious training present in Hosanna-Tabor is insufficient to insulate him from the application of the ministerial exception, particularly in light of the important part his ostensibly secular duties—working on the music department budget, managing the sound system, running the soundboard during Mass, maintaining the music room, rehearsing with choir members and cantors, and playing piano during services—played in furthering the mission and message of the church at Mass.”

What This Means For Churches:

This case is important for two reasons. First, the court rejected the three-part Starkman test for determining ministerial status in applying the ministerial exception, noting that it could not survive the “facts and circumstances” approach articulated by the Supreme Court in Hosanna-Tabor. Second, the court emphasized the significance of music in the ministry of a church, and therefore those who are integrally involved in music ministry should be deemed “ministers” covered by the ministerial exception. Cannata v. Catholic Diocese, 700 F.3d 169 (5th Cir. 2012).

Church Law & Tax Report

Dismissing a Minister for Wrongdoing

Take care when terminating staff over moral conduct.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court’s ruling

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

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

Statements made after termination

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

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

“Secular” Inquiries

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

Application. Consider the following points:

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

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

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

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

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

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

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

Pastor: Elders sought to alienate him from his church

Background

Pastor claimed wrongful dismissal

What this means for churches

Background

The church board voted to remove the pastor

The trustees had “the authority to terminate”

What this means for churches

What this means for churches

The Liability of Knowing but Not Acting

What This Means For Churches:

Churches and Revoking Pension

Churches’ Right to Remove Clergy

What This Means For Churches:

Seminary Professor Unable to Sue for Racial Discrimination

What This Means For Churches:

Ministerial Exemption Prevents Court from Resolving Lawsuit

What This Means For Churches:

Ministerial Exemption Bars Court’s Ruling in Music Director’s Dismissal

The Starkman Test

The Plaintiff’s Ministry

What This Means For Churches:

What This Means For Churches:

Who Is Considered a Minister?

1. employment decision made largely on religious criteria

2. qualified and authorized to perform the ceremonies of the Church

3. engaged in activities traditionally considered ecclesiastical or religious

What This Means for Churches:

Incorporated Arbitration Clauses

Termination of a “Whistleblower”

Court May Resolve Pastor’s Breach of Employment Claim

The Ministerial Exception and Sex Discrimination

Minister’s Racial Discrimination Claim Dismissed

The Ministerial Exception and Disability Discrimination

Dismissing a Minister for Wrongdoing

The court’s ruling

Statements made after termination

“Secular” Inquiries