Clergy - Removal

Legal Developments

The Ministerial Exception and Racial Discrimination

Civil courts are prevented from applying employment laws to ministers.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

The Ministerial Exception and Racial Discrimination

Civil courts are prevented from applying employment laws to ministers.

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

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 North Carolina federal court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a minister’s claim that his denomination engaged in unlawful racial discrimination in violation of Title VII of the Civil Rights Act of 1964. An African-American minister (the “plaintiff”) was employed by a state synod (“regional church”) as a missions director. He claimed that he was subjected to racial discrimination and a hostile work environment and that the conditions became so intolerable that he was ultimately forced to resign. He filed a claim of discrimination with the United States Equal Employment Opportunity Commission (EEOC), but the EEOC dismissed this claim on the basis of the so-called “ministerial exception” which prohibits civil courts and agencies from resolving employment disputes between churches and clergy. The plaintiff thereafter sued his denomination in federal court, alleging racial discrimination and hostile work environment under Title VII of the Civil Rights Act of 1964, as well as state law claims for constructive discharge, intentional infliction of emotional distress, and negligent infliction of emotional distress.

The court dismissed the plaintiff’s claims on the basis of the ministerial exception. It noted that his responsibilities as missions director were “directly involved in fulfilling the church’s purpose of receiving, establishing, and supporting congregations to bear witness to the Gospel and to carry out God’s mission. The specific responsibilities … include working to advance and spread the Gospel and assisting other individuals to carry on outreach work, which includes developing new congregations and supporting existing congregations and ministries.”

The court explained the ministerial exception “precludes application of Title VII to employment decisions relating to members of the clergy and others whose primary duties are religious in nature.” It quoted from an earlier federal appeals court ruling which it described as the “seminal case on the ministerial exception”:

The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister’s salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972).

The court noted that the ministerial exception has been applied not only to ordained ministers, but also by non-ordained individuals whose primary duties “consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” It concluded that the plaintiff was a minister for purposes of the ministerial exception, and as a result his lawsuit had to be dismissed:

As mission director, plaintiff’s duties clearly consisted of “teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” Moreover, many of his allegations relate to office space, meeting attendance, presentation of work plans, telephone messages, leadership selection, lack of communication, and the approval of religious groups. These allegations relate directly to internal church governance, which the First Amendment protects from outside interference. d in McClure,

The court again cited the McClure case:

An investigation and review of such matters of church administration and government as a minister’s salary, his place of assignment and his duty, which involve a person at the heart of any religious organization, could only produce by its coercive effect the very opposite of that separation of church and State contemplated by the First Amendment.

The court also ruled that the ministerial exception required a dismissal of not only the plaintiff’s Title VII claim, but also all of his state law claims.

In rejecting the plaintiff’s argument that the ministerial exception did not apply in this case because the court would not have to intrude upon the spiritual functions of the church in addressing his claims, the court observed: “It is not the court’s role to determine whether the church had a secular or religious reason for the alleged mistreatment of [plaintiff]. The only question is that of the appropriate characterization of [his] position.” Gomez, 2008 WL 3202925 (M.D.N.C. 2008).

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

Legal Developments

Defenses to Discrimination Lawsuits

Know how to defend your ministry in the event of a discrimination lawsuit.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Defenses to Discrimination Lawsuits

Know how to defend your ministry in the event of a discrimination lawsuit.

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

Key Point 8-12.8. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court’s decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws.

A federal court in New York dismissed an age discrimination claim against a church, and based its conclusion on the federal Religious Freedom Restoration Act rather than the so-called ministerial exception. A minister was forced into retirement at age 70 by a policy of his denomination. The minister sued his church and a denominational official for violating a federal age discrimination law making it unlawful for any employer with 20 or more employees that is engaged in commerce to discriminate in any employment decision on the basis of the age of any person who is at least 40 years of age. The minister asserted that the mandatory retirement policy was a “secular” matter that was not influenced by any religious considerations. He acknowledged that most courts refuse to intervene in employment disputes between churches and clergy as a result of the so-called “ministerial exception” to employment laws, but he insisted that the ministerial exception “should not insulate a church’s non-religious regulations that discriminate against ministers on the basis of age.” A federal district court dismissed the lawsuit on the basis of the ministerial exception.

A federal appeals court ignored the ministerial exception and ruled that the lawsuit was barred by the federal Religious Freedom Restoration Act (RFRA). It noted that the ministerial exception “has no basis in statutory text, whereas RFRA, if applicable, is explicit legislation that could not be more on point. Given the absence of other relevant statutory language, the RFRA must be deemed the full expression of Congress’s intent with regard to the religion- related issues before us and displace earlier judge-made doctrines that might have been used to ameliorate the age discrimination law’s impact on religious organizations and activities.”

RFRA provides: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability … [unless] it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest.” The court reasoned that RFRA was broad enough to apply to a minister’s lawsuit against a church “since it applies to all federal law and the implementation of that law.” This language “easily covers the present action.”

The court rejected the minister’s claim that RFRA is unconstitutional. It concluded that RFRA represents a constitutional exercise of congressional power as it applies to the federal government. The court remanded the case back to the district court for reconsideration based on RFRA.

The district court concluded that it was compelled by the appeals court’s ruling to apply RFRA, rather than the ministerial exception, in resolving the plaintiff’s age discrimination claim. It noted that the appeals court found RFRA to be “the full expression of Congress’s intent with regard to the religion-related issues before us and displaces earlier judge-made doctrines that might have been used to ameliorate the ADEA’s impact on religious organizations and activities,” including the ministerial exception.

The district court concluded that outcome in this case was the same whether RFRA or the ministerial exception was applied, even though the denomination allegedly had made an exception to its retirement policy in at least one prior case:

The fact that the defendants may have deviated from this policy on one occasion, does not detract from the principle that it must have the right to appoint ministers without interference from the civil courts. Thus, because application of the ADEA to the defendant’s mandatory retirement policy would interfere with its right to select its own clergy, it places a substantial burden on its right to manage its own internal affairs. This conclusion is supported by the “long line of Supreme Court cases that affirm the fundamental right of churches to ‘decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine ….'” We cannot conceive how the federal judiciary could determine whether an employment decision concerning a minister was based on legitimate or illegitimate grounds without inserting ourselves into a realm where the Constitution forbids us to tread, the internal management of a church.

Application. Churches and denominations that are sued for discrimination under any federal employment law should cite both the ministerial exception and RFRA as defenses. Hankins v. The New York Annual Conference, 516 F.Supp.2d 225 (E.D.N.Y. 2007).

This Recent Development first appeared in Church Law & Tax Report, September/October 2008.

Legal Developments

Former Pastor Sues Church for Breach of Compensation Agreement

Have all important documents reviewed by legal counsel.

Richard R. Hammar, Attorney, CPA
Bio

Key Point 2-03. Clergy compensation consists of a number of items that often are not well understood. Clergy compensation that is unreasonable in amount may jeopardize a church's tax-exempt status or trigger "intermediate sanctions" in the form of excise taxes that can be assessed against a recipient of unreasonable compensation.

Key Point 8-22. In most states, employees who are hired for an indefinite period are considered "at will" employees. This means that the employment relationship may be terminated at will by either the employer or employee, with or without cause, and with or without notice. The courts and state legislatures have created a number of exceptions to the at will employment rule. These exceptions limit the right of an employer to terminate an at will employee. Employees who are hired for a specific term are not at will employees, and they may be terminated only if the employer has "good cause."

An Indiana court ruled that a "compensation agreement" between a church and its new senior pastor was in effect a contract of employment that was violated by the church board.

In 1994, a church hired a new pastor (the "plaintiff") to succeed a former pastor who died after 54 years of service. The plaintiff served as the pastor from 1994 through the end of 1996 without a written contract of compensation. At the end of 1996, the church board adopted an agreement governing "the full and complete terms and agreement for the employment compensation of [the plaintiff]."

In 2001, the church board terminated the plaintiff's employment after a no confidence vote by the church's membership. The plaintiff sued the church, claiming that the termination of his employment constituted a breach of the compensation agreement. A jury ruled in favor of the plaintiff and awarded him $205,000 in damages.

On appeal, the church made two arguments. First, the agreement between the board and plaintiff was a compensation agreement, not an agreement for employment, and therefore the church could not be liable for wrongful termination of employment. Second, the church argued that even if the compensation agreement was an employment agreement, it specified an indefinite term of employment and therefore should be interpreted as establishing an employment at will relationship. The church noted that an employee at will may be terminated for any reason or no reason at all.

Was the compensation agreement an employment contract?

In responding to the church's first argument the court noted that "the words or labels of a contract are not conclusive but should be considered in connection with the provisions of the contract." In this case, the agreement was entitled "Compensation for Pastoral Services" between the church and plaintiff. The agreement provided in Article I ("Introduction") that it contained the "full and complete terms and agreement for [the plaintiff's] employment compensation" and that his compensation could be "terminated … with a 60 day notice." The agreement also specified that "employment shall be in accordance with the bylaws of the church." The court concluded that "it is apparent from the language of the agreement that although it is primarily a compensation agreement, it also covers terms of employment by incorporation of the church's bylaws. Thus, we cannot agree with the church's initial contention."

Employment at will?

In responding to the church's second contention, the court noted that the church bylaws stated that "the pastor is called for life and removable only by death." The church asserted that this provision was so indefinite that the relationship between the parties should be characterized as at will employment. The court disagreed: "Here, the church's bylaws, which were drafted by the church and were incorporated into the agreement … clearly state that a pastor is removable only by death. This provision is unequivocal and it negates the presumption that the plaintiff was an at will employee who could be terminated without cause."

What this means for churches

This case is important for two reasons. First, it demonstrates that agreements may have legal significance that transcends the intention of church leaders. This is one reason why it is imperative for important documents to be reviewed by legal counsel. Second, the court concluded that a church bylaw provision defining the term of employment of a senior pastor as lasting until death made the relationship definite in length, which negated the employment at will doctrine. As a result, the church could not terminate the plaintiff's employment without cause.

Note that the church board based its decision to terminate the pastor's employment on the congregation's vote of confidence which revealed a lack of support for the pastor. Presumably, under the church's bylaws, such votes did not negate the "employment until death" provision. Such inconsistencies are common in church bylaws and are one reason why such documents should periodically be reviewed by an attorney with experience working with religious organizations. Trinity Baptist Church v. Howard, 869 N.E.2d 1225 (Ind. App. 2007).

Legal Developments

Former Organist Sues Church

Court rules that church organist is not a ministerial employee.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Former Organist Sues Church

Court rules that church organist is not a ministerial employee.

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 non establishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

Maryland’s highest state court ruled that it was not barred by the First Amendment guaranty of religious freedom from resolving a former church organist’s lawsuit against his former church, since he was not a “ministerial” employee. An 11-year-old boy (the “plaintiff”) began working for a church as its organist in 1958, and served until 1976. From 1976 to 1991 he pursued other employment, and then returned to the church as its organist from 1991 to 2001. During all of these years he served the church without a written employment contract. In 2001, the plaintiff entered into a two-year employment contract with the church to serve as its “organist/pianist/keyboard accompanist.” The contract described the plaintiff’s duties as follows:

  • To support the Gospel message through the music ministry of the church and to encourage the congregation to assume as active part in their musical participation at all liturgical parish functions.
  • To provide organ/piano/keyboard music and musical accompaniment to both the congregation and the choirs of the church at the 10:30 a.m., 12:00 noon and 1:15 p.m. Sunday services; to provide the same at the weekly Saturday 5:15 p.m. service; to provide same at special liturgical celebrations … to provide musical accompaniment for the congregation at the 7:00 p.m. Monday night weekly novena service.
  • To build and sustain congregational song at all liturgies.
  • To assist in selecting music associated with the worship at all liturgies in which he/she participates.
  • To assist in planning the music associated with the above mentioned liturgies.
  • To participate in special liturgical celebrations when requested, especially Christmas, Lenten and Easter liturgies, Confirmation, First Communion, and Reconciliation liturgies.
  • To work under the very general supervision of the choir directors of the Liturgical Choir and the Hispanic Choir.
  • To attend parish staff meetings when appropriate.

For the performance of these duties, the plaintiff was to receive an annual salary of $26,500, in addition to other benefits, including hospitalization insurance. The contract provided that the parties could terminate the employment contract “by mutual agreement” with 90 days advance notice.

In 2001, the plaintiff informed the pastor that he had been sexually abused by a parish choirmaster from 1958 to 1964. Immediately after reporting the sexual abuse, the plaintiff claimed that his employment situation began to deteriorate, as the pastor began to find fault with his performance. Prior to reporting the abuse, his performance record had been exemplary; he had never received a negative performance evaluation or warning during the some 29 years of employment with the church.

A few months later, the plaintiff was informed that he should retire from his position, and was offered up to $2,000 to seek psychiatric counseling. His employment was later terminated unilaterally by the church, without advance notice, based on his “apparent inability to work cooperatively.” The plaintiff later sued the church, alleging breach of contract, wrongful discharge, and emotional distress against the church, its pastor, and the archdiocese. The archdiocese asked the court to dismiss the lawsuit on the basis of the “ministerial exception.” This judge-made doctrine, which is based on the First Amendment guaranty of religious liberty, bars the civil courts from resolving employment disputes between churches and “ministers.” The archdiocese stressed that “music plays a vital role in a number of religious faiths,” including in the Catholic faith, and has deep religious significance. It cautioned that a judicial resolution of the plaintiff’s claims would endorse governmental interference with religion. A trial court agreed, and dismissed the lawsuit. The plaintiff appealed.

The Court of Appeals (the highest state court in Maryland) ruled that the ministerial exception did not apply to the plaintiff, and ordered the case to proceed to trial. It noted that for a church employee to be deemed a “minister” for purposes of the ministerial exception, his or her role must “consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision in religious ritual and worship.” The court concluded that “we simply are not convinced that plaintiff’s role was supervisory in any respect, involved any form of church governance, or directly required the teaching or the spreading of the religious faith.” It noted that the plaintiff “was not in absolute control of the music played, and he did not lead any choirs, teach any hymns, or control any part of the church services in which he participated. He was neither required to have specialized knowledge of the Catholic faith, nor expected to have any particular religious training. All he needed was knowledge of how to play an organ …. [T]he duties that [he] actually performed, while they occurred during church services, were not ministerial in any sense.”

The court stressed that the plaintiff did not lead the choir or congregation in song, but merely accompanied them. Nor did he “preach or inculcate values,” or “decide how the message was expressed. He was not … in a teaching role, in a position where his own beliefs affected his ability to perform his job …. He was not a music minister. He was not a pivotal figure at the church, did not plan any liturgies himself, and he was not in charge of the church’s musical life. He did not teach the choir any music, and he was not listed as parish staff.”

The court acknowledged that other courts had applied the ministerial exception to church music directors, but it concluded that each of these cases was distinguishable because of the nature of the tasks performed:

  • Assemany v. Archdiocese of Detroit, 434 N.W.2d 233 (1988). The ministerial exception applied to a church music director who was in charge of the Catholic liturgy in the church, and had a leadership role in the parish.
  • Egan v. Hamline United Methodist Church, 679 N.W.2d 350 (Minn. App. 2004). The ministerial exception applied to a church music director who was “responsible for managing and rehearsing the church choir, selecting and preparing music for regular Sunday services and other special services, playing the organ, and supervising other church music groups, such as the children’s choir and the handbell choir.”
  • Miller v. Bay View United Methodist Church, 141 F.Supp.2d 1174 (E.D. Wis. 2001). The ministerial exception applied to a church’s “music director and choir director” whose duties included “choosing appropriate musical selections for the Sunday worship services and preparing and directing the choirs in leading the congregation in song, researching the religious themes of the upcoming services in religious books and selecting music that coincided with the religious themes and meanings of that particular service as well as encouraging and promoting music ministry outreach.”
  • Starkman v. Evans, 198 F.3d 173 (5th Cir.1999). The ministerial exception applied to a church’s “choirmaster and director of music,” whose was required to have a masters in music and extensive study in church music, choral conducting, worship, choral vocal methods, hymnology, Bible, theology, Christian education, and church history and doctrine. The job description for this position stated that the person was responsible for planning worship liturgy, coordinating church and worship activities relating to the church’s music ministry, rehearsing with choirs and conducting those choirs, hiring musicians and lower level music ministry directors, and writing articles about the church’s music ministry for the weekly church bulletin, and introducing liturgical seasons for worship services. The music director acknowledged that for her and her congregation, music was a form of prayer and an integral part of worship services and Scripture readings.
  • Fassl v. Our Lady Perpetual Help Roman Catholic Church, 2005 WL 2455253 (E.D. Pa. 2005). The ministerial exception applied to a church’s director of music, whose job description included an ability to teach, to lead, and to encourage active participation of the congregation in liturgical celebrations and an ability to work with volunteers who participate in the church’s music ministry. The position required “a thorough understanding of and love for the liturgy of the church and the relationship of music to the liturgical life of the church.” The director of music directed three to five masses per weekend, planned music for liturgies, directed multiple church choirs, and prepared and played for penance services, all school liturgies, all other Holy Days, and contemporary and teen music groups.
  • Hope International University v. Superior Court, 14 Cal.Rptr.3d 643 (Cal. App. 2004). The court noted that “individuals whose function is essentially liturgical, that is, connected to the religious or worship service of the organization” are a “relatively easy case” of when the ministerial exception applies, and listed among the examples “music and choir directors.”

The court concluded that it was clear that the plaintiff failed to perform the kinds of duties mentioned in these cases, and therefore he was not a “minister” for purposes of the ministerial exception. As a result, the court rejected the request of the archdiocese to dismiss the lawsuit.

Application. This case will help church leaders know if the ministerial exception applies to their music minister or director. If the exception applies to a music minister or director, then the civil courts will not resolve that person’s employment-related claims.

Three judges dissented from the court’s opinion. They concluded that the plaintiff’s duties were sufficiently religious for the ministerial exception to apply. Archdiocese of Washington v. Moersen, 925 A.2d 659 (Md. 2007).

This Recent Development first appeared in Church Law & Tax Report, March/April 2008.

Legal Developments

Former Director of Evangelization Sues Diocese for Wrongful Termination

Courts generally cannot resolve church employment disputes.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Former Director of Evangelization Sues Diocese for Wrongful Termination

Courts generally cannot resolve church employment disputes.

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 Washington state appeals court ruled that the First Amendment prevented it from resolving a claim of wrongful termination by the former director of evangelization of a diocese. A Catholic diocese hired a man (“Bruce”) as director of evangelization. Bruce’s job description defined his duties to include the development and implementation of “evangelization adult formation programs in Christian discipleship, Scripture, the Catholic Faith as summarized in the Creed, Sacraments, Liturgy, Morality, Spirituality, Evangelization and Social Justice with the goal of preparing every Catholic for ministry in the Church and mission in society.” Bruce helped compile a handbook for the Deacon Formation Program and guidelines for the Parish Pastoral and Finance Councils. In this bishop’s opinion, Bruce’s job “was directly related to the teaching of the Catholic Faith and doctrine.”

The diocese discovered pictures on a priest’s computer of naked adolescent boys on a beach. When confronted, the priest attempted suicide. In response, the diocese sent him to a psychiatric facility. The computer was turned over to state and federal prosecutors, but no charges were filed. The priest returned to the diocese and was assigned to a church that operated a parochial school. Bruce disagreed with the handling of the situation, and expressed his dissatisfaction in writing. Thereafter, his duties were cut back to the point that he was forced to resign. He later sued the diocese for retaliatory discharge.

A trial court dismissed Bruce’s lawsuit, and the case was appealed. A state appeals court ruled that the “ministerial exception” required it to affirm the dismissal of Bruce’s claims. The court, in explaining the ministerial exception, observed: “Secular courts must avoid controversies between a church and its minister because the introduction of government standards to the selection of spiritual leaders would significantly, and perniciously, rearrange the relationship between church and state. Moreover, an investigation and review of such matters of church administration and government as a minister’s salary, his place of assignment and his duty could only produce by its coercive effect the very opposite of that separation of church and state contemplated by the First Amendment.”

The court concluded that Bruce’s position was ministerial, though he was not ordained, and therefore the ministerial exception applied. It noted that “In determining whether an employee is considered a minister for the purposes of applying the ministerial exception, we do not look to ordination but instead to the function of the position,” and that the ministerial exception “encompasses all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission.” The court noted that the diocese hired Bruce as its director of evangelization, and that “evangelism by its very term means preaching the gospel.” Fontana v. Diocese of Yakima, 157 P.3d 443 (Wash. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, January/February 2008.

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Legal Developments

The First Amendment and Church Employment Disputes

Courts are generally barred from resolving ministers’ employment claims.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

The First Amendment and Church Employment Disputes

Courts are generally barred from resolving ministers’ employment claims.

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 Massachusetts court ruled that it was barred by the First Amendment from resolving a minister’s claim that his dismissal was unlawful. An Episcopal priest (the “plaintiff”) served as an interim priest until a new bishop was appointed for the diocese. The new bishop considered the plaintiff’s criminal record, information revealed in a background check, information the plaintiff volunteered about his previous employment, and knowledge of the plaintiff’s conduct as a priest to determine that the plaintiff could serve only as a supply, substitute, or assistant priest but not as an interim priest, priest-in-charge, or rector within the diocese. The plaintiff thereafter served various parishes in the diocese as a supply or assistant priest. The bishop later withdrew the plaintiff’s license to serve as a priest on the basis of complaints about the plaintiff’s conduct and performance; improper attempts by the plaintiff to obtain additional compensation from a church; inappropriate email communications from the plaintiff that were intercepted by the diocese; and other unspecified information obtained about the plaintiff’s behavior.

The plaintiff sued the diocese, claiming that he had been removed from his position as an interim priest, and denied any administrative or interim positions in the diocese since that time. He further claimed that he had been removed as a priest because of his efforts to pursue an audit of the church’s finances, and his filing of a written complaint with the Internal Revenue Service. He also claimed that his dismissal as a minister was due in part to unlawful “retaliation” against him for reporting child abuse. Specifically, he argued that he observed a church member transporting boy scouts in his motor vehicle though his driver’s license had been revoked or suspended for a conviction involving the member’s drunk driving and killing of a child with his vehicle. The plaintiff claimed that after reporting to the vestry and the diocese and being “rebuked,” he made a report to the local police pursuant to the state child abuse reporting law. He argued that the reporting law protects mandatory reporters of child abuse from retaliation by their employer for making a report of child abuse, and that the diocese violated this prohibition by revoking his ministerial status.

The court rejected this argument for three reasons. First, the plaintiff reported the alleged abuse to the police rather than to the Department of Social Services as required by the reporting statute. As a result, the anti-retaliation provision in the reporting law was not triggered. Second, the plaintiff reported the alleged abuse to the police in 2000, two years before clergy were added to the list of mandatory reporters in Massachusetts. As a result, the antiretaliation provision, which only protects mandatory reporters, did not apply. Third, the court considered it “doubtful” that the plaintiff had “reasonable cause to believe” that, as a result of the transportation arrangement, any of the boy scouts was a victim of child abuse, and therefore no report was required.

Application. This case is important for two reasons. First, the court concluded that the constitutional limitation on judicial intervention in clergy employment disputes applies to “whistleblowers.” Second, the court’s analysis of the anti-retaliation provision in the Massachusetts child abuse reporting law is instructive. Such provisions are common in child abuse reporting laws, but, as this court concluded, they may not protect clergy if (1) they report child abuse to the wrong person or agency; (2) they are not mandatory reporters under state law; or (3) they lacked reasonable cause to believe that child abuse had occurred. Gallagher v. Episcopal Diocese of Massachusetts, 864 N.E.2d 1260 (Mass. App. 2007).

This Recent Development first appeared in Church Law & Tax Report, January/February 2008.

Legal Developments

Determing Disability Discrimination

Most courts have concluded that they are barred by the First Amendment from resolving challenges by dismissed clergy to the legal validity of their dismissals.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Determing Disability Discrimination

Most courts have concluded that they are barred by the First Amendment from resolving challenges by dismissed clergy to the legal validity of their dismissals.

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 federal court in Iowa ruled that the First Amendment guarantee of religious freedom prevented it from resolving a rabbi’s claim that her dismissal violated the Americans with Disabilities Act and amounted to a breach of contract. A rabbi (“Beth”) entered into an employment contract with a Jewish congregation for a period of three years. The contract specified that it could be terminated by the congregation for gross misconduct or an ongoing inability to perform the duties described in the agreement. According to the agreement, Beth’s duties included leading religious services, serving as principal and teacher in the Hebrew school, visiting ill or confined congregants, satisfying pastoral needs of members, maintaining regular office hours, and writing newsletter articles.

Beth claimed that she suffered a physical disability related to a broken foot, which limited her ability to stand, walk, and move, and that she provided the congregation with a set of accommodations that would permit her to work. Despite her disability, she continued to perform her job duties in a manner that she believed met the congregation’s expectations.

In fact, some congregational leaders were dissatisfied with her communication with congregants, office hours, pastoral care, and religious services. The congregation gave Beth a written memorandum of concerns regarding her job performance and provided specific instructions for the timeliness of returning phone calls and number of visits to ill or confined congregants. She responded with a written memorandum, stating she had posted her office hours and made every reasonable effort to return congregants’ phone calls and messages. She also stated that the visitation requirements outlined in the memo were not reasonable, given her foot injury. A few months later, the congregation’s board of directors determined that Beth’s performance had not improved, and it voted to terminate her employment.

Beth insisted that she performed her job adequately at all times, despite her foot injury disability. She sued the congregation, claiming that its decision to terminate her violated the Americans with Disabilities Act and amounted to a breach of contract.

Americans with Disabilities Act

The Americans With Disabilities Act (ADA) prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of disability. The ADA defines a “disability” as a physical or mental impairment that substantially limits one or more major life activities. Beth claimed that her foot injury met this definition. The congregation conceded that after her injury Beth used crutches and a cane to assist her mobility.

The court noted that an analysis of Beth’s discrimination claim “quickly implicates whether the performance she was providing could meet her religious obligations. The issue is further complicated by the record of complaints regarding communication with congregants, pastoral care, religious services, and complaints … within and without the confines of the congregation. From this type of record, there understandably arises a reluctance of courts not only to avoid the ultimate entanglement but to avoid the essential inquiry.” The court cited the following cases as examples of a judicial reluctance to decide if a church’s decision to terminate a minister was discriminatory or based on legitimate performance-related concerns:

  • A federal appeals court held that a minister’s age discrimination claim was properly dismissed because “the First Amendment prohibits the government from regulating internal church decisions about the promotion of pastors, because churches have broad discretion in determining who may speak for the church.” The minister had asserted that since there was no church policy or doctrine in favor of age discrimination, there was no First Amendment implication in having a secular court decide his claim. The court concluded that it need not wade into the nuances of church policy, since as a determination of the church leader “is per se a religious matter. We cannot imagine an area of inquiry less suited to a temporal court.” Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (D.C.Cir. 1990).
  • A federal appeals court dismissed a pastor’s claims of racial and sexual discrimination in a church’s hiring process. The court found the constitutional questions mandated refrain from inquiry into clergy selection: “The right to choose ministers without government restriction underlies the well-being of religious community, for perpetuation of a church’s existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines.” The court held that any governmental attempt “to restrict a church’s free choice of its leaders thus constitutes a burden on the church’s free exercise rights.” Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985).
  • A federal appeals court ruled that the First Amendment precluded civil court review of a minister’s sex discrimination claim. Calling the relationship between church and clergy the “lifeblood” of the church, the court determined that matters affecting that relationship are “of prime ecclesiastical concern” and thus outside the purview of the secular courts. McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972).
  • A federal appeals court ruled that “the overwhelming weight of precedent going back over a century” precluded it from intervening in a minister’s race discrimination, sex discrimination and retaliation claims. The court concluded that a church’s selection of its clergy is “primarily an ecclesiastical matter” that is the exclusive province of the church. The court determined that the First Amendment prohibits civil court review of church procedures regarding clergy employment decisions. Young v. Northern Illinois Conference of United Methodist Church, 21 F.3d 184 (7th Cir. 1994).
  • A minister alleged several physical and mental conditions but claimed he was able to perform his ministerial duties with slight accommodations. He sued the church pursuant to the ADA, asserting the church failed to accommodate his disability and that the failure to make reasonable accommodations forced him to resign. The court held that it could not consider such a claim, as it “clearly fits into this long recognized category of ministerial personnel decisions exempt from consideration by the civil courts,” noting that the very act of decision was protected—even the reasoning behind such a decision was outside the legitimate purview of the court. Werft v. Desert Southwest Annual Conference of the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004).

Beth insisted that judicial resolution of a minister’s disability discrimination claim is a neutral act involving no analysis of religious doctrine. The court disagreed, noting that “it is the very inquiry into those decisions that constitutes excessive entanglement with a church’s internal affairs.” The court noted that a resolution of Beth’s claim would pit her theory of disability discrimination against the congregation’s view that her termination was solely related to unsatisfactory performance of her religious duties. Resolving these competing claims would invite “improper scrutiny by the court of the congregation’s expectations as a religious institution. Any such investigation presses the civil court to become excessively entangled in internal church affairs and is prohibited by the First Amendment.” As a result, the court dismissed Beth’s disability discrimination claim.

breach of contract

The court concluded that Beth’s claim for breach of contract “similarly raises the compelling question of whether religious determinations are at issue or whether this is merely a civil contract dispute defined by the terms the congregation sought. Though the congregation’s insistence on a contract document increases the stark nature of the legal collision, the result ultimately is the same.”

Beth argued that the court should entertain her breach of contract claims because the congregation made numerous secular legal references in drafting the employment agreement, including (1) health and disability insurance, (2) the Internal Revenue Code, (3) insurance coverage by the congregation, (4) termination based upon gross misconduct, and (5) termination based on an inability to perform duties. In addition, the contract had an addendum which referred to certain statistics published by the U.S. Department of Labor regarding the calculation of Beth’s annual compensation adjustment.

The court concluded: “Had Beth brought a claim for breach of contract based on the congregation’s refusal to provide the agreed-upon insurance coverage or failure to make the annual compensation adjustment, it may well be that the court could adjudicate those claims by factual determinations that do not involve the court in internal, ecclesiastical matters. However, the congregation claims to have discharged her pursuant to misconduct and an inability to perform her duties. As the above analysis has repeatedly noted, the ability of church members to obtain clergy of their choosing is a matter of prime constitutional consideration and outside the proper inquiry of a civil court.”

Application. This case is important for two reasons. First, it extends the so-called “ministerial exception” to ministers’ claims of employer discrimination under the Americans with Disabilities Act. Second, the court concluded that the ministerial exception prohibits the civil courts from inquiring into the reason why a church dismissed a minister. The very act of deciding if a church’s decision to terminate a minister was legitimately related to job performance, or illegitimately based on discriminatory intent, would impermissibly entangle a court in a matter of “prime ecclesiastical concern.” Leavy v. Congregation Beth Shalom, 490 F.Supp.2d 1011 (N.D. Iowa 2007).

Legal Developments

Counseling and Clergy Malpractice

Most courts have rejected clergy malpractice as a basis for liability in all cases.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Counseling and Clergy Malpractice

Most courts have rejected clergy malpractice as a basis for liability in all cases.

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

Key point 4-05. Most courts have rejected clergy malpractice as a basis for liability in all cases. A few courts have found clergy guilty of malpractice for engaging in sexual misconduct with an adult or minor, or if they engage in “non-religious” counseling.

* A Utah court ruled that a counselee’s lawsuit against a pastoral counselor had to be dismissed on the ground that it was in essence a claim of “clergy malpractice” that the civil courts could not resolve without violating the First Amendment. An adult male church member alleged that during a pastoral counseling session a pastor breached his fiduciary duty and intentionally inflicted emotional distress on him. The member sued the church, and a trial court dismissed the lawsuit. A state appeals court affirmed the dismissal. The appeals court noted that the state supreme court previously ruled that claims for clergy malpractice or similar claims are not recognized in Utah since recognition of such claims “would require an unconstitutional evaluation of religious philosophy and teachings, contrary to the First Amendment’s non-establishment of religion clause.” The state supreme court also noted that, regardless of the title of a claim, it “will not survive constitutional scrutiny if an adjudication of the claim would foster an excessive governmental entanglement with religion in violation of the First Amendment.” The appeals court concluded that “when a claim for breach of fiduciary duty in an ecclesiastical setting is, in essence, a claim for clergy malpractice or would otherwise require excessive entanglement with religion, the claim is barred.”

The court noted that “the plaintiff’s claim for breach of fiduciary duty in an ecclesiastical setting is, in essence, a claim for clergy malpractice. He asserts that [the pastor] breached a duty owed as part of his role as a cleric—essentially the same elements as clergy malpractice. Even if not identical to a clergy malpractice claim, the claim would require the same excessive entanglement in evaluating standards and duties in a religious setting, and would thus lead to the same violation of the First Amendment. Accordingly, the trial court correctly dismissed the plaintiff’s claim for breach of fiduciary duty.”

The court also rejected the plaintiff’s claim that the pastor intentionally inflicted emotional distress. It noted that such a claim requires proof of conduct that “may reasonably be regarded as extreme and outrageous,” and concluded that “there is nothing so shocking in [the pastor’s] conduct that evokes outrage or revulsion, or shows that the conduct was extreme.” Lowery v. Cook. 2007 WL 772782 (Utah App. 2007)

Legal Developments

Unlawful Termination

The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

Richard R. Hammar, Attorney, CPA
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Unlawful Termination

The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

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.

Key point 8-06. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

* An Ohio court ruled that it was barred by the First Amendment from resolving the claims of two former church employees that their church acted unlawfully in terminating their employment. A church terminated the employment of two employees (the plaintiffs). The plaintiffs sued the church for wrongful dismissal and for unlawfully retaliating against them for criticizing what they believed to be a discriminatory employment practice. The trial court dismissed the lawsuit on the basis of the so-called ministerial exception to state and federal employment laws which “precludes any inquiry whatsoever into the reasons behind a church’s ministerial employment decision.”

The trial concluded that both plaintiffs were ministers, and so the ministerial exception applied. The court noted that one plaintiff had been employed by the church as its staff development director, which required her to oversee the spiritual well-being of the staff. She had been responsible for administering a “spiritual assessment” to applicants for employment with the church. The assessment examined an applicant’s faith journey and spiritual development. She had been charged with evaluating an applicant’s answers to the assessment to determine whether the candidate should advance within the hiring process. She had implemented the church’s hiring policy, which mandated staff members’ agreement with the church’s statement of faith and guiding principles.

The trial court found that the other plaintiff had been employed by the church as an associate pastor, charged with “providing leadership, vision, values and direction; ensuring spiritual health and growth of attendees, maintaining Biblical Integrity among staff and leaders, supervising staff and directing the ministry areas toward the fulfillment of the Vision/Mission.” This plaintiff had been a member of the church’s senior leadership team, a body that developed the church’s spiritual direction.

The trial court also noted that the church had issued ministry licenses to both plaintiffs. The ministry licenses stated that each of them was certified “as a minister of the Gospel of Jesus Christ [and has] completed all the studies and has met all the requirements of this body for recognition of such office; further, by rite of license, he or she is duly licensed to perform all ministerial functions without limit as accorded by the laws of the land and in compliance with the ordinances of God’s holy church as set forth in God’s Holy Word.” Both plaintiffs were certified by the state of Ohio as ministers authorized to solemnize marriages.

For federal income-tax purposes, both plaintiffs received a housing allowance from their church, which is only available to “a minister of the gospel.”

A state appeals court agreed that the plaintiffs were ministers, and that the ministerial exception barred any review of their claims. It began its opinion by observing: “While we agree that matters regarding who should preach from the pulpit are fundamentally and unquestionably beyond the jurisdiction of secular courts … the cases demonstrate that all matters of the propriety of internal church discipline … whether taken against a clergyman or a church member, are beyond the jurisdiction of secular courts.”

The court agreed with the plaintiffs that the church’s “internal characterization” of them as “ministers” was not dispositive of their status for purposes of the ministerial exception, but if found “somewhat disingenuous” their argument that they were not ministers. The court noted that the trial court “did not rely solely on the church’s labeling of [the plaintiffs]. Instead, in making its determination that [they] were ministers, the trial court considered their actual duties within the church, as well as their licensing as ministers with both the church and the state, and their utilization of ministerial tax exemptions.”

Application. This case is important because of the court’s practical approach to defining “ministers” for purposes of the ministerial exception. In agreeing with the trial court that the plaintiffs were ministers, the court stressed that a church’s characterization of a person as a minister does not necessarily trigger the ministerial exception. Instead, a court must consider the functions the employee performs. The court listed three of them: (1) The plaintiffs’ duties directly furthered the church’s core mission and purposes. (2) The church had issued ministerial credentials to the employees, thus enabling them to perform the rites and ordinances of the church. (3) The plaintiffs were authorized by the state of Ohio to perform marriage ceremonies. (4) The church treated the plaintiffs as ministers for purposes of the housing allowance. Horine v. Vineyard Community Church, 2006 WL 3690309 (Ohio App. 2006).

Legal Developments

Racial Discrimination

A federal district court in Georgia ruled that it was barred by the “ministerial exception” from resolving a dismissed minister’s claim that his dismissal was a result of unlawful racial discrimination.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Racial Discrimination

A federal district court in Georgia ruled that it was barred by the “ministerial exception” from resolving a dismissed minister’s claim that his dismissal was a result of unlawful racial discrimination.

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.

Key point 8-06. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

* A federal district court in Georgia ruled that it was barred by the “ministerial exception” from resolving a dismissed minister’s claim that his dismissal was a result of unlawful racial discrimination. A church hired a music minister (the “plaintiff”) whose duties included the oversight of the church’s music ministry, as well as the production of CDs, videos, and other audio-visual products. The church later terminated the plaintiff’s employment based on overall dissatisfaction with his work. The plaintiff sued the church, claiming that his dismissal amounted to unlawful discrimination based on race.

The court ruled that the ministerial exception prevented it from resolving the plaintiff’s claim. It explained the ministerial exception as follows: “The First Amendment prohibits a church from being sued by its clergy for decisions relating to its internal management and administration …. The relationship between an organized church and its ministers is its lifeblood, and thus an attempt by the government to regulate the relationship would infringe upon the church’s right to be the sole governing body of its ecclesiastical rules and religious doctrine.”

The court noted that the ministerial exception is not limited to ordained clergy, but also extends to any church employees whose primary duties consist of “teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship,” or whose position is “important to the spiritual and pastoral mission of the church.” The court noted that music ministers or directors have been deemed “ministers” under this expanded definition of “minister,” thereby resulting in a dismissal of their employment-related legal claims. It concluded:

There can be little doubt that plaintiff’s position … falls within the ambit of the ministerial exception. It is clear … that his position … is important to the spiritual and pastoral mission of the church. His primary duties, which include supervising the worship arts department and directing the musical affairs of the church, involve church governance or supervision or participation in religious ritual and worship, and are thus ecclesiastical in nature. As such, his race discrimination claim … would require this court to encroach into the internal affairs of church management and is thus barred by the ministerial exception of the First Amendment.

The court added that any resolution of the plaintiff’s claims would force it to determine the validity of the senior pastor’s distaste for plaintiff’s music, and whether he was motivated by a genuinely religious or a racially discriminatory intent in terminating him. Indeed, “his opinion concerning the suitability of plaintiff’s music could propel the court into a controversy … over what is suitable music for worship services … The First Amendment forbids that inquiry.” Ross v. Metropolitan Church of God, 471 F.Supp.2d 1306 (N.D. Ga. 2007).

Legal Developments

Lawsuits by Dismissed Clergy

A Texas court ruled that it was barred by the First Amendment from resolving a lawsuit brought against a church by a dismissed youth director.

Richard R. Hammar, Attorney, CPA
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Lawsuits by Dismissed Clergy

A Texas court ruled that it was barred by the First Amendment from resolving a lawsuit brought against a church by a dismissed youth director.

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 non-establishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

* A Texas court ruled that it was barred by the First Amendment from resolving a lawsuit brought against a church by a dismissed youth director. Randy was employed as a church’s Director of Youth Ministries. In that position, he was responsible for “the administration and organizing of recreational events for the youth, such as camping outings and other social gatherings; he coordinated the transportation, oversaw the logistics, and served as a chaperone.” He also “managed the budget for the youth program, recruited adult and youth participants, registered the attendees at events, collected participation fees from attendees, and performed fundraising duties.”

Another associate pastor at Randy’s church had a conversation with a pastor of the church where Randy had previously been employed concerning Randy’s continued employment. The pastor of Randy’s former church recounted allegations that Randy had upset congregation members by dating certain women and by putting his arm around girls at church. He also described a rumor that Randy had used internet pornography as being “unsolicited, anecdotal, and unsubstantiated.”

After this conversation, the associate pastor at Randy’s church shared these rumors with another pastor who met with the Staff Parish Relations Committee (“SPRC”) and recommended that Randy be terminated from his position as Director of Youth Ministries. In a subsequent letter to two concerned members of the congregation, the SPRC chairwoman wrote: “Please know that this committee and your pastors share your concern for the youth program. A search for a new youth director will begin after the first of the year. Before any action was taken, the pastors discussed the situation with the District Superintendent and sought the backing of the SPRC, which unanimously voted to accept the recommendation to support the decision. I can assure you that we approached this decision prayerfully and in the best interests of the church.”

Randy claimed that the SPRC chairwoman told a member of the congregation who asked about his termination that, “It is really bad,” “We had to get him out before something happened at our church,” and that “Randy knows why he was fired” and “he wouldn’t want anyone else to know.”

Randy sued the church, claiming it was liable for defamation and interference with an employment contract. A trial court dismissed the lawsuit on First Amendment grounds, and Randy appealed.

A state appeals court began its opinion by summarizing two important principles rooted in the First Amendment guaranty of religious freedom. The ecclesiastical abstention doctrine prevents secular courts from reviewing many types of disputes that would require an analysis of “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required.” In cases relying on the ecclesiastical abstention doctrine, courts consider the substance and nature of a plaintiff’s claims to determine whether the First Amendment prevents civil court jurisdiction. The second, and more narrow, principle is the so-called ministerial exception which prevents the civil courts from resolving employment disputes between a church and its ministers. If the employee is a minister, then the ministerial exception applies, “preventing secular review of the employment decision without further question as to whether the claims are ecclesiastical in nature.” The reason for this special rule for employment decisions about ministers is because:

The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern …. [Inquiry into a church’s decision regarding the] employment relationship existing between a church and its minister would result in an encroachment by the state into an area of religious freedom which it is forbidden to enter by the principles of the free exercise clause of the First Amendment. McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972).

In summary, if Randy’s position was ministerial, “then, pursuant to the ministerial exception, his claims for defamation and interference are not subject to secular review.”

The court concluded that an employee’s position will be considered “ministerial” if his or her “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship” or if the “position is important to the spiritual and pastoral mission of the church.” In deciding if an employee’s primary duties are ministerial in nature, the court referred to the following three factors: (1) “whether employment decisions regarding the position at issue are made largely on religious criteria,” (2) “whether the plaintiff was qualified and authorized to perform the ceremonies of the church,” and (3) “probably most important whether plaintiff engaged in activities traditionally considered ecclesiastical or religious.” Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999). The Starkman court held that it is “sufficient” to deem an employee’s function “ministerial” if only the third prong is satisfied (choir director was a minister because religious music “constitutes a form of prayer that is an integral part of worship”).

The court noted that Randy’s position as Director of Youth Ministries included many administrative duties, such as coordinating the transportation, logistics, and other travel arrangements for youth outings and gatherings. Also, the court pointed out that he was not ordained, and, as Director of Youth Ministries, did not participate in worship services or ceremonies, had no responsibility for the music or liturgy, did not assist with the confirmation of youth, and was not required to teach religious classes or have religious training. On the other hand, the court noted:

Randy was responsible for “organizing” these events, meaning that he made decisions on behalf of the church about what activities the members of its youth ministry would participate in. The purpose of a church organizing a youth-group retreat is to bring people together in fellowship, often coupled with religious worship or reflection. Even if he was not teaching the doctrine himself, he testified that he was actively participating as a chaperone. Organizing and chaperoning these events for the youth ministry are activities that furthered the church’s mission, which went beyond purely secular tasks such as booking a chartered bus, collecting payments from the participants, or reserving cabins for a retreat. Furthermore, he “managed the budget for the youth program.” Had he been responsible merely for accounting, this function might be viewed as solely secular because he would not have any discretion over the use of church funds. But, as the director of the program who “managed” the budget, he was authorized to decide how the church’s money was best used in furtherance of ministering to its youth. Because he was responsible for deciding what activities the church’s youth group would participate in and how the program’s money would be spent, he was “answerable to the religious authorities for providing, in a myriad of ways not reducible to a listing of tasks, ‘spiritual leadership in and for the [youth ministry].'”

Notably, Randy’s affidavit also states that he “performed fund-raising duties” and “recruited participants” for the program. There is no question that asking people to give their time and money to support activities of the youth ministry is a function that is “important to the spiritual and pastoral mission of the church,” especially in light of the fact that he was also responsible for deciding how to use that money and how to organize those events. In fulfilling these duties, he would be directly communicating the mission of the program to individuals and encouraging them to participate either financially or physically.

Thus … it is apparent that he was acting both as the “voice” of the youth ministry and serving as a “primary agent” of the church. Determining whose voice speaks for the church is per se a religious matter, and determining who will serve as a “primary agent by which a church seeks to fulfill its purpose” is precisely the type of ecclesiastical decision that the First Amendment intends to protect. Considering the Starkman “primary duties” test, then, (1) the church’s employment decision regarding Randy’s position would be based largely on religious criteria, and (2) his organizing of—as well as his budgeting, fund-raising, and recruiting participants for—youth ministry activities are things “traditionally considered [to serve an] ecclesiastical or religious” purpose. Accordingly we hold that, as Director of the Youth Ministry Randy functioned in a ministerial capacity.

The court rejected Randy’s argument that some of his defamation claims could be addressed because they were based on statements made about him by church officers after he was dismissed. In particular, the chairwoman of the SPRC allegedly told members that “it is really bad” and “we had to get him out before something happened at our church.” Although such statements “do not, on their face, implicate religious doctrine, a determination of the truth or falsity of these statements would require an inquiry into the church’s reasons for terminating Randy from his position as the Director of Youth Ministries,” and this is “precisely the type of inquiry protected from secular review by the ecclesiastic abstention doctrine.”

Application. This case is important for two reasons. First, it applies the ministerial exception to a youth pastor who was not ordained, and who “did not participate in worship services or ceremonies, had no responsibility for the music or liturgy, did not assist with the confirmation of youth, and was not required to teach religious classes or have religious training.” The court concluded that Randy was nonetheless a “minister” for purposes of the ministerial exception because (1) he was actively involved in organizing and chaperoning events for the youth ministry that furthered the church’s mission and “went beyond purely secular tasks”; (2) he was authorized to decide how the church’s money was best used in furtherance of ministering to its youth; (3) he performed fundraising duties and recruited participants for the youth program; (4) he acted both as the “voice” of the youth ministry and served as a “primary agent” of the church.

Second, the court concluded that the ministerial exception barred resolution of defamation claims arising from post-termination statements if “a determination of the truth or falsity of these statements would require an inquiry into the church’s reasons for terminating [the minister] from his position,” since this is “precisely the type of inquiry protected from secular review by the ecclesiastic abstention doctrine.” Patton v. Jones, 212 S.W.3d 541 (Tex. App. 2006).

Legal Developments

Age and Disability Discrimination

Most courts have concluded that they are barred by the First Amendment from resolving challenges by dismissed clergy to the legal validity of their dismissals.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Age and Disability Discrimination

Most courts have concluded that they are barred by the First Amendment from resolving challenges by dismissed clergy to the legal validity of their dismissals.

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 non-establishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.

* A New Mexico court ruled that it was barred by the First Amendment guaranty of religious freedom from resolving a rabbi’s claim that a synagogue unlawfully dismissed him on the basis of his age and Parkinson’s disease. A Jewish synagogue hired a rabbi (David) for a term of thirty years. During the term of his employment David developed Parkinson’s disease and his symptoms became progressively more apparent. His wife was diagnosed with breast cancer, and some of the synagogue’s board members came to believe that her condition distracted David from his rabbinical duties. David claimed that the synagogue had engaged in an “ouster campaign” against him that involved both a willful failure to pay him the compensation called for by his employment contract, and an attempt to get him to release the synagogue from the thirty-year contract through a campaign of “false promises, harassment, ridicule, and intimidation, including publishing one-sided and negative information about him to congregation members and other members of the public in an effort to ensure that in the event he did not resign, the synagogue would have the congregation members’ votes to terminate his employment.” This negative information included statements accusing David of a poor work ethic, having no concern for congregation members, and performing poorly as a rabbi by failing to return telephone calls, failing to work adequate hours, and failing to make hospital visits.

David asserted that the synagogue’s motivation for conducting this campaign was due to his Parkinson’s disease, his age, his wife’s medical condition and his complaints about the synagogue’s failure to compensate him in accordance with his contract. He sued the synagogue and several board members on the basis of several grounds, including unlawful age and disability discrimination and a breach of various fiduciary duties. The trial court dismissed David’s lawsuit on the basis of the First Amendment guaranty of religious freedom. David appealed.

A state appeals court affirmed the trial court’s dismissal of the lawsuit. It relied on the “church autonomy doctrine,” which “prevents civil legal entanglement between government and religious establishments by prohibiting courts from trying to resolve disputes related to ecclesiastical operations.” The basis for this doctrine is a decision by the United States Supreme Court. In an 1871 case, the Court observed: “The rule of action which should govern the civil courts Â… is, that, whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” Watson v. Jones, 80 U.S.(13 Wall.) 679 (1871).

The New Mexico court concluded that the dispute in the present case was “precisely the type of religious debate that the church autonomy doctrine is intended to protect from judicial review.” The court was sympathetic to David’s claim that his struggles with Parkinson’s disease played a role in his termination, but was “not persuaded that this circumstance justifies judicial intervention into how [a synagogue] treats and selects its ecclesiastical leaders.”

The court quoted with approval from a federal appeals court decision: “The relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection.” McClure v. Salvation Army, 460 F.2d 553 (5th Cir.1972).

Application. This case illustrates once again the reluctance of the civil courts to interfere with employment decisions between religious organizations and clergy. The court in this case was not persuaded that a rabbi’s claims of disability and age discrimination were sufficient to justify its intervention. Celnik v. Congregation B’Nai Israel, 131 P.3d 102 (N.M. 2006).

Legal Developments

Defamation and Church Clergy

A church’s protection from defamation lawsuits.

Richard R. Hammar, Attorney, CPA
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Defamation and Church Clergy

A church’s protection from defamation lawsuits.

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.

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

* An Oklahoma court ruled that the First Amendment guaranty of religious liberty, as well as the concept of “qualified privilege,” protected a church from being sued for defamation as a result of the senior pastor’s statement to a church member that a former youth pastor had been dismissed because he had been “questioning his sexuality.” A church board voted to dismiss the church’s youth pastor (Pastor Eric). Pastor Eric later sued the senior pastor of the church, and the church and a regional church, for defamation based on the senior pastor’s statement to members of the church and local community that Pastor Eric had been dismissed because he was “questioning his sexuality.” Pastor Eric claimed that these statements constituted slander, and he asked the court to award him both actual and punitive damages. The church defendants insisted that the pastor’s alleged statement was made to only one person (a church member), and concerned the discipline of a youth pastor, and therefore was shielded from liability by the First Amendment guaranty of religious freedom as well as the “qualified privilege” that protects statements of “common interest” that are shared between church members.

Pastor Eric pointed to minutes of a church board meeting indicating that he had been fired for violating church policy in the conduct and financing of youth activities, and therefore the pastor’s subsequent statements regarding his sexuality did not concern the imposition of discipline for violation of any ecclesiastical doctrine of the church and were not protected by the First Amendment. In addition, Pastor Eric alleged that the senior pastor’s statement regarding his sexuality was made to a church member in the presence of two other church members. A trial court dismissed the lawsuit, concluding that the senior pastor’s statement was made “to a church member about a terminated staff member, who was also a church member; accordingly, the alleged statement is constitutionally protected.” Pastor Eric appealed.

First Amendment

A state appeals court began its opinion by defining defamation as a false statement about another that is communicated to other persons. It noted that the First Amendment to the United States Constitution “guarantees a church the right, without fear of judicial interference, to impose on its members discipline for breach of ecclesiastical doctrine so long as the member remains a member of the church.” Consequently, “the First Amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline,” and “within the context of ecclesiastical discipline, churches enjoy an absolute privilege from scrutiny by the secular authority.”

The court rejected Pastor Eric’s claim that the First Amendment offers no protection to defamatory statements unrelated to church discipline. It observed, “The statement of which plaintiff complained related to the ostensible reason for his termination, conveyed from the pastor to a member of the congregation concerning the conduct of another member. At least one court has specifically held that statements by and between church members relating to the church’s reasons and motives for terminating a person’s membership require an impermissible inquiry into church disciplinary matters,” and that the First Amendment “precludes a member’s defamation claim which clearly involves an internal conflict within the church. We are persuaded that examination of [the senior pastor’s] statement in the present case likewise requires an impermissible inquiry into church disciplinary matters, barred by the First Amendment.”

Qualified privilege

The court concluded that the church defendants also were protected by a qualified privilege, which it defined as follows:

A church or other religious organization ordinarily bears no tort liability for statements by or between church officers or members concerning the conduct of other officers or members, because communications between members of a religious organization concerning the conduct of other members or officers in their capacity as such are qualifiedly privileged as matters affecting a common interest or purpose. This is especially so where the publication is made in response to a request rather than volunteered by the publisher. So, where the alleged defamatory statements are exchanged by or between members of the congregation during or as result of either a church’s decision to employ, retain or terminate a clergyman or lay employee, or a church’s review of the performance of a clergyman or lay employee, the conditional privilege shields the church from liability for defamation.

A qualified privilege is “qualified” in the sense that it will not apply if the person making an allegedly defamatory statement does so with “malice.” In this context, malice means either a knowledge that the statement was false, or a reckless disregard as to its truthfulness.

The court quoted with approval from a 1929 decision by the New Hampshire Supreme Court:

The idea that the conduct of a minister should be mentioned unfavorably only at church meetings, or before tribunals having authority in the premises, suggests an undesirable departure from the usual course of events …. Individual church members are not accustomed to bring the various items of gossip which may be in circulation about the minister to the attention of the governing boards of the church, nor is it desirable that they should do so …. Instances in which charges are presented and heard by the constituted church authorities evidence the culmination of considerable periods of private discussion amongst the members of the congregations involved. Any rule designed to penalize the formation of public sentiment in such cases by arresting the preliminary sifting of reports through private discussion, free from the taint of malice and for a proper purpose, is without justification and would be foredoomed to practical failure as an attempt to decree that men and women shall not act like human beings. Slocinski v. Radwan, 144 A. 787 (1929)

The court noted that a church member had asked the senior pastor why Pastor Eric had been terminated, which amounted to a request for information “concerning [his] conduct or qualifications for office.” The allegedly defamatory statement occurred in the course of the pastor’s response to this inquiry, that is, “during an exchange between one member of the congregation and another member of the congregation concerning the acts of a third member of the congregation.” The court concluded that “the unconverted evidence thus demonstrates publication of the complained-of statement occurred on a conditionally privileged occasion, and the record contains no evidence even remotely suggesting the destruction of the conditional or qualified privilege by abuse or malice.”

Application. This case contains an excellent description of the qualified privilege. Church leaders should be familiar with this concept. Note, however, that in recent years some courts have limited the First Amendment and qualified privilege defenses to statements made about a staff member prior to his or her termination. This is an important qualification to bear in mind.

Also note that the minutes of the church board were cited by Pastor Eric as proof that he had been terminated for non-doctrinal reasons. This illustrates an important point. Church board members should recognize that the minutes of their meetings are accessible in the event of future litigation, and as a result they should be prepared with this possibility in mind. If in doubt, have a local attorney review minutes before they are formally approved. Trice v. Burress, 137 P.3d 1253 (Okla. App. 2006).

* See (1) “Defamation,” Trice v. Burress, 137 P.3d 1253 (Okla. App. 2006); (2) “Sexual misconduct by clergy, lay employees, and volunteers,” 2006 WL 1009283 (W.D. Wash. 2006), in the recent developments section of this newsletter.

Legal Developments

Disability Discrimination

The application of the ministerial exception to FMLA claims.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Disability Discrimination

The application of the ministerial exception to FMLA claims.

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.

Key point 8-06. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

* A federal court in Pennsylvania ruled that it was barred by the First Amendment from resolving a church music director’s claims that her employing church discriminated against her on the basis of her disabilities, and violated the Family Medical Leave Act. A woman (Ann) performed ministerial responsibilities as the director of music for a church. As its director of music, the church considered Ann to be a non-ordained liturgical minister who was an integral part of the pastoral and spiritual mission of the church and not simply a member of the custodial, clerical, or office personnel. Ann herself repeatedly referred to her employment as her ministry, and, eventually, she admitted that her responsibilities were ministerial in nature.

Ann claimed that she had a neurological disorder, and, as a result of her condition, was experiencing physical difficulties and decreased stamina and energy. She claimed that she approached the senior pastor of the church and requested a break from her employment as director of music. The pastor reportedly denied her request after she informed him that she did not know how long of a break she would need. Ann claimed that at that point she had no choice but to resign from her position, which she did in writing. Later, she requested reinstatement, which was denied. She then filed a “Charge of Discrimination” with the Equal Employment Opportunity Commission (EEOC), and later sued the church in federal court. She eventually dropped her disability claim, and proceeded with her Family Medical Leave Act (FMLA) claim. The church asked the court to dismiss the case on the basis of the so-called “ministerial exception,” which exempts employment relationships between religious institutions and their ministers from various federal employment laws. Ann argued that the ministerial exception did not apply to FMLA claims.

The court concluded that Ann’s duties as director of music made her a “minister” for purposes of the ministerial exception, and that the ministerial exception applied to FMLA claims. As a result, the court dismissed Ann’s FMLA claim.

The church sought a court order compelling Ann to pay its attorneys’ fees. It based this request on Title 28, section 1927 of the United States Code, which specifies that “any attorney who multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses and attorneys’ fees reasonably incurred because of such conduct.” Specifically, the court noted that there must be “willful bad faith, which is evident when claims advanced were meritless, that counsel knew or should have known this, and that the motive for filing the suit was for an improper purpose such as harassment.” The court concluded that the behavior of Ann’s attorney was not “of an egregious nature, so stamped by bad faith that is violative of recognized standards in the conduct of litigation.” It conceded that Ann’s attorney “initially and obdurately refused to acknowledge that she was a minister in the church in the face of a significant evidentiary array that she was a minister and so considered herself, he ultimately acted reasonably by stipulating to that fact and by voluntarily dismissing the ADA claim.”

Application. This case is significant because it is the first court to address the application of the ministerial exception to FMLA claims. The court concluded that the exception applies. This ruling will be directly relevant to any church or denominational agency having 50 or more employees (the minimum number of employees required for FMLA coverage). Fassl v. Our Lady of Perpetual Help Roman Catholic Church, 2005 WL 3135921 (E.D. Pa. 2006).

* See also (1) “Defamation,” Trice v. Burress, 137 P.3d 1253 (Okla. App. 2006); (2) “Sexual misconduct by clergy, lay employees, and volunteers,” 2006 WL 1009283 (W.D. Wash. 2006), in the recent developments section of this newsletter.

Legal Developments

Age Discrimination and Denomination Policy

A minister’s age discrimination lawsuit challenging a denominational policy requiring the retirement of ministers at 70 years of age was barred by the federal Religious Freedom Restoration Act.

Richard R. Hammar, Attorney, CPA
Bio

Church Law & Tax Report

Age Discrimination and Denomination Policy

A minister’s age discrimination lawsuit challenging a denominational policy requiring the retirement of ministers at 70 years of age was barred by the federal Religious Freedom Restoration Act.

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

Key point 8-06. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

Key point 13-02.2. Congress enacted the Religious Freedom Restoration Act to prevent the government from enacting any law or adopting any practice that substantially burdens the free exercise of religion unless the law or practice is supported by a compelling government interest. The compelling government interest requirement applies to any law, including neutral laws of general applicability. The objective of the Act was to repudiate the Supreme Court’s decision in the Smith case (1990) in which the Court ruled that neutral laws of general applicability that burden the free exercise of religion do not need to be supported by a compelling government interest in order to satisfy the First Amendment. In 1997, the Supreme Court ruled that the Act was unconstitutional. However, other courts have limited this ruling to state and local legislation, and have concluded that the Act continues to apply to federal laws.

* A federal appeals court ruled that a minister’s age discrimination lawsuit challenging a denominational policy requiring the retirement of ministers at 70 years of age was barred by the federal Religious Freedom Restoration Act. A minister was forced into retirement at age 70 by a policy of his denomination. The minister sued his church and a denominational official for violating a federal age discrimination law making it unlawful for any employer with 20 or more employees that is engaged in commerce to discriminate in any employment decision on the basis of the age of any person who is at least 40 years of age. The minister asserted that the mandatory retirement policy was a “secular” matter that was not influenced by any religious considerations. He acknowledged that most courts refuse to intervene in employment disputes between churches and clergy as a result of the so-called “ministerial exception” to employment laws, but he insisted that the ministerial exception “should not insulate a church’s non-religious regulations that discriminate against ministers on the basis of age.” A federal district court dismissed the lawsuit on the basis of the ministerial exception.

A federal appeals court ignored the ministerial exception and ruled that the lawsuit was barred by the federal Religious Freedom Restoration Act (RFRA). It noted that the ministerial exception “has no basis in statutory text, whereas RFRA, if applicable, is explicit legislation that could not be more on point. Given the absence of other relevant statutory language, the RFRA must be deemed the full expression of Congress’s intent with regard to the religion-related issues before us and displace earlier judge-made doctrines that might have been used to ameliorate the age discrimination law’s impact on religious organizations and activities.”

RFRA provides: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability … [unless] it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling governmental interest.” The court reasoned that RFRA was broad enough to apply to a minister’s lawsuit against a church “since it applies to all federal law and the implementation of that law.” This language “easily covers the present action.”

The court rejected the minister’s claim that RFRA is unconstitutional. It concluded that RFRA represents a constitutional exercise of congressional power as it applies to the federal government.

One dissenting judge argued that RFRA has no application to disputes between private parties, such as the present case, and that the case should have been dismissed on the basis of the ministerial exception.

Application. This case suggests that the Religious Freedom Restoration Act can be used by churches to defend against discrimination claims under federal employment laws. This is the first court to reach such a conclusion. Other courts, and the dissenting judge in this case, apply the “ministerial exception” to such disputes. Hankins v. Lyght, 441 F.3d 96 (2nd Cir. 2006).

* See also (1) “Clergy—removal,” Fassl v. Our Lady of Perpetual Help Roman Catholic Church, 2005 WL 3135921 (E.D. Pa. 2006); (2) “Clergy—removal,” Celnik v. Congregation B’Nai Israel, 131 P.3d 102 (N.M. 2006), in the recent developments section of this newsletter.

Legal Developments

Clergy—Removal

A federal district court in Georgia fined a pastor for filing frivolous lawsuits against his denomination relating to his dismissal.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Courts may respond to a plaintiff's repeated, frivolous lawsuits by imposing various sanctions.

A federal district court in Georgia fined a pastor for filing frivolous lawsuits against his denomination relating to his dismissal, and issued an order prohibiting him from filing additional lawsuits.

The court noted that the pastor had filed previous lawsuits against the denomination, all of which had been dismissed, and that none of his lawsuits raised new and valid arguments. The court dismissed the latest lawsuit, enjoined him from filing any more lawsuits, fined him $500 for being a "litigation menace," and published its opinion "to enable any church affiliates not involved in this case to discover this injunction and move this court to impose criminal contempt sanctions against him for any future violations of this injunction." Baker v. African Methodist Episcopal Church, 2005 WL 1400750 (S.D. Ga. 2005).

Legal Developments

Court Rules Members Had Legal Authority to Retain or Remove Pastor

An Indiana court ruled that a majority of a “congregational” church’s members had the legal authority to determine whether or not to retain their pastor.

Richard R. Hammar, Attorney, CPA
Bio

• Key point 2-04.2. Some courts are willing to resolve disputes over the termination of clergy if they can do so without any inquiry into religious doctrine. Termination

• Key point 6-06.2. Officers and directors must be legally authorized to act on behalf of their church. Legal authority can be express, implied, inherent, or apparent. In addition, a church can ratify the unauthorized actions of its officers or directors, but this is not required. Church Officers, Directors, and Trustees

• Key point 6-09.2. Church members have such legal authority as is vested in them by their church's governing documents, and in some cases by state nonprofit corporation law. Church Members

An Indiana court ruled that a majority of a "congregational" church's members, rather than the church's board of trustees, had the legal authority to determine whether or not to retain their pastor. A church's board of trustees sent a "notice of termination" to the pastor. The trustees took this action without providing notice to the church congregation or seeking its approval. The pastor refused to relinquish his position, and the congregation convened a special business meeting at which it ousted the trustees and replaced them with a new board. The original trustees filed a lawsuit in the name of the church asking a court to recognize their removal of the pastor. The court refused, noting that the trustees had no authority to bring the lawsuit in the name of the church and that they failed to present any evidence that the pastor was a danger to the church's property or congregation. The trustees appealed, claiming that the first amendment guaranty of religious freedom prevented the civil courts from resolving internal church disputes such as this one. A state appeals court acknowledged that the "civil courts are precluded from resolving disputes involving church affairs if resolution of the disputes cannot be made without extensive inquiry into religious law and polity." However, "the courts do not inhibit free exercise of religion merely by opening their doors to disputes involving property, as there are neutral principles of law, developed for use in all property disputes, which can be applied without establishing churches to which property is awarded. Therefore, the first amendment commands civil courts to decide church property disputes without resolving underlying controversies over religious doctrine and practice."

The court noted that for churches of "congregational" polity, "the religious organization is represented by a majority of its members," and therefore "when presented with a dispute within a church of congregational polity, our courts will uphold the majority's decision, whether that is to purchase property or even remove the minister, unless the church has established its own decision-making body with the power to override the will of the majority." Without such a presumption, the court concluded, there would be chaos because members would have no avenue to resolve the dispute.

The court ruled that the dispute in this case was not a controversy over church doctrine or practice involving the interpretation of church doctrines. Rather, "this is simply a case where the trustees in a congregational church found themselves in the minority." As a result, the dispute had to be resolved according to the will of the majority of church members. The court noted that the members had voted not to recognize the authority of the trustees to fire the minister. The trustees insisted that the presumption of majority rule was rebutted by two provisions in the minister's original contract. One provision specified that "church delegated leaders" could terminate the contract without cause, and the other said that the "church delegated leaders" were the "only overseers of the church" and were "responsible for all of the affairs of the church … and "all ministers serve the congregation under the total oversight of and in partnership with the church delegated leaders to accomplish such purposes and objectives as are set forth in the scriptures."

The court rejected the trustee's claim that these provisions in the pastor's employment contract defeated the presumption of majority rule. It noted that only four of the "church designated leaders" had signed the contract; that the church leaders were referred to as "delegated"; and, that "despite the language in the contract, such leaders were still answerable to the majority will from which they obtained their authority" to enter into the employment contract.

Application. This case illustrates two important points. First, a majority of the members of a "congregational" church generally will decide how internal church disputes are resolved, unless the church's organizational documents or other controlling authority vests this authority in another person or group. Second, this case demonstrates the potential relevance of employment contracts in resolving questions over the status of a pastor or other church employee. In this case, the trustees insisted that they had the sole authority to determine whether or not the minister should be retained because of language in the minister's employment contract that seemed to give them extensive authority. While the court rejected the trustee's argument, the fact remains that it was a close question that could have been decided either way. The lesson is clear. If a congregational church's governing documents give the church membership the authority to select and remove a pastor, then the language in a pastor's contract of employment should not suggest that a church board has this authority. Cole v. Holt, 725 N.E.2d 145 (Ind. App. 2000).

© Copyright 2000 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m31 c0101

Legal Developments

Court Concluded That a Motion to Fire a Minister Was Invalid Because of Improper Notification

Can a minister be voted out of office at a congregational meeting if the notice

Richard R. Hammar, Attorney, CPA
Bio

Can a minister be voted out of office at a congregational meeting if the notice of the meeting did not indicate that there would be a vote on the minister's continued employment? That was the difficult question before a Louisiana state appeals court in a recent decision.

A Baptist church convened a special meeting of the congregation. Notice of the meeting consisted of announcements from the pulpit on the three consecutive Sundays prior to the meeting. These announcements did not indicate that a vote would be taken on the minister's continued employment. At the meeting, a motion was made from the floor to terminate the minister's services. The minister, acting as chairman of the meeting, ruled the motion out of order since there had been no prior notice that such a vote would be taken. A deacon then proceeded to conduct a vote over the minister's objection, and the members present voted to terminate the minister's services.

The ousted minister attempted to return to the pulpit on the following Sunday, but was prevented from doing so. The church later obtained a court order prohibiting the minister from attempting to occupy his former position.

The minister appealed this decision to a state appeals court, arguing that the church had improperly fired him since it had not given proper notice of the business to be transacted at the congregational meeting. The appeals court agreed. It began its opinion by observing that neither the church's charter nor bylaws specified the type of notice needed for special meetings.

Since the charter and bylaws were silent concerning the proper form and manner of notice, the state nonprofit corporation law under which the church was incorporated had to be consulted. A provision in the nonprofit corporation law specified that "unless otherwise provided in the [charter] or bylaws … the authorized person calling a members' meeting shall cause written notice of the time, place and purpose of the meeting to be given to all members entitled to vote at such meeting, at least ten days and not more than sixty days prior to the day fixed for the meeting."

Notice of the church's special congregational meeting was defective since it was not in writing (it had been announced from the pulpit), and it failed to specify the purposes of the meeting. "The notice of the meeting was clearly deficient," concluded the court, "and the meeting was therefore invalid."

This case is significant for two reasons:

First, it emphasizes the significance of giving proper notice of church business meetings. Procedural defects, such as defective notice, can render a meeting invalid. It is essential that clergy and church boards be familiar with the wording of their own church charters and bylaws regarding the matter of notice.

Second, the case illustrates the principle (which is followed in many states) that an incorporated church may be governed by state nonprofit corporation law in the event that it fails to address certain matters of administration and operation in its charter or bylaws. Of course, churches in such states are free to adopt provisions contrary to the nonprofit corporation law in their own charter or bylaws, and such provisions will be controlling. But in the event that they fail (for whatever reason) to address certain issues of church administration in their organizational documents, state law may step in to "fill the void." Bethlehem Missionary Baptist Church v. Henderson, 522 So.2d 1339 (La. App. 1988).

Legal Developments

Court Was Able to Rule in a Church Issue Involving Church Funds and the Appointment of a New Minister

Removal

Richard R. Hammar, Attorney, CPA
Bio

What legal recourse does a church have if a minister refuses to honor a congregational vote removing him from office? An Illinois appeals court addressed this difficult question.

Here are the facts. Rev. Smith started a church in 1937, and served as its pastor up until the time of her disability in 1985. In 1958, she appointed a Rev. Sims to serve as "financial secretary" and pulpit minister of the church. As pulpit minister, Rev. Sims sat on the pulpit during each service, and conducted services on the fourth Sunday of each month. Following Rev. Smith's disability in 1985, the church's board of trustees took action requiring two authorized signatures on church checks, and removed Rev. Sims' name from the list of authorized signers.

A few months later, the congregation elected Rev. Wing as pastor of the church. Rev. Sims refused to recognize Rev. Wing's appointment, or the authority of the church trustees, and began disrupting worship services. During one service the church was forced to contact the police, and Rev. Sims was physically evicted from the premises. The church later obtained a court order permanently prohibiting Rev. Sims from interfering with church services, publicly asserting her alleged authority to act as minister, or exercising any authority over the church's funds.

In direct violation of this order, Rev. Sims withdrew $25,000 from the church's bank account. The church sued to recover the money, and Rev. Sims responded by alleging that a civil court has no jurisdiction over "an ecclesiastical matter." The state appeals court agreed that "when matters of religious doctrine or practice are at issue in property disputes involving hierarchical church organizations, civil courts must defer to any resolution of those issues reached by the highest authority within the church organization." However, "as long as no consideration of doctrine is involved in the dispute," a civil court is free to intervene.

The issues involved in this case, observed the court, did not involve "matters of religious doctrine or practice," and so it was appropriate for a civil court to intervene. The only issues present were (1) whether the trustees had the authority to restrict access to church funds, and (2) whether the church followed its bylaws in the election of Rev. Wing. Such issues involved no impermissible inquiries into religious doctrine, the court concluded.

Finally, the court noted that Rev. Sims had a legal right to "lobby in a proper forum and speak to others regarding the church." Therefore, the lower court's injunction permanently forbidding her to speak out regarding her claimed authority to act as minister was overly broad. While such an order may have been appropriate if it limited Rev. Sims' activities only on the church's premises, it was not so limited. Accordingly, it had the effect of impermissibly restricting Rev. Sims' right of free speech in forums other than the church.

The appeals court sent the case back to the trial court with instructions to rewrite the injunction so as to recognize Rev. Sims' legal right "to lobby in a proper forum and speak to others regarding the church."

This case illustrates that (1) the power of the state is available to assist a church in dealing with disruptive behavior, even if such behavior is on the part of a former minister, and (2) church officers can be held accountable in the civil courts for misappropriation of church funds.

Lily of the Valley Spiritual Church v. Sims, 523 N.E.2d 999 (Ill. App. 1st Dist. 1988)

Legal Developments

Court Upheld the Validity of Proxy Votes in Church Business Meetings

During a regular church business meeting, a member moved to terminate the services of the

Richard R. Hammar, Attorney, CPA
Bio

During a regular church business meeting, a member moved to terminate the services of the church's minister. Of the members present, 42 voted to retain the minister, and 32 voted to remove him. In addition, one of the 32 dissidents produced a list of 57 proxy (absentee) votes to remove the minister from office. The moderator of the business meeting refused to recognize the proxy votes, and the attempt to remove the minister failed.

The dissident members thereafter filed a lawsuit seeking a court order upholding the validity of proxy votes in church business meetings. A state trial court ruled against the dissidents, and the case was appealed directly to the Alaska Supreme Court.

In an important decision, the court reversed the trial court and held that the proxy votes should have been counted. It based its decision on the provisions of the Alaska Nonprofit Corporations Act (under which the church had incorporated) which authorized proxy voting by members of nonprofit corporations absent a contrary provision in an organization's charter or bylaws.

The court rejected the church's claim that requiring it to recognize proxy votes violated the constitutional guaranty of religious freedom.

Finally, the court observed that a church could easily avoid the recognition of proxy votes by simply amending its charter or bylaws to so state. Herning v. Eason, 739 P.2d 167 (Alaska 1987).

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