Editor’s Note: On March 3, 2023, a Georgia federal district court denied the plaintiffs the ability to bring their lawsuit against Ravi Zacharias International Ministries, Inc. as a class action. Instead, the plaintiffs can only bring individual claims. The court noted:
None of the donors were actually harmed by their contributions to RZIM, and it appears from the face of the [complaint] that only a very small amount of the money contributed to RZIM was actually used to facilitate or cover up the sexual misconduct of [Ravi] Zacharias. Therefore, a class-wide damages award (even if possible) of all contributions would be inequitable and implausible. …
Church Law & Tax will continue to monitor the case, including whether the class-action decision gets appealed.
Key point. Churches and other religious ministries may be liable on various grounds for using designated funds for undesignated purposes. Those grounds include unjust enrichment and violation of a state Fair Business Practices Act.
A federal court in Georgia ruled that it was not barred by the ecclesiastical abstention doctrine from resolving a lawsuit by donors to a religious ministry claiming fraud based on the ministry’s use of designated offerings for unrelated purposes.
Ravi Zacharias, who died in May 2020, was a well-known Christian apologist and evangelical minister who founded the Ravi Zacharias International Ministries, Inc. (“RZIM”) in 1984. The organization’s stated “vision” is “to build a team with a fivefold thrust of evangelism, apologetics, spiritual disciplines, training, and humanitarian support.”
RZIM works toward this vision through conferences, lectures, and seminars held around the world; it also produces podcast and radio shows as well as online videos which featured Zacharias. For many years, these programs found a dedicated audience of millions.
Plaintiffs: RZIM “bilked hundreds of millions of dollars”
Among the ministry’s followers were two couples (the “Plaintiffs”) who considered Zacharias and RZIM to be “spiritually aligned with the Gospel of Jesus Christ and … completely dedicated to a mission of spreading the Gospel, teaching new apologists, and trying to help people through humanitarian efforts.”
While listening to RZIM’s programs, the Plaintiffs recall hearing Zacharias and other speakers solicit donations to RZIM. For example, on one occasion they heard the following message:
The vision of RZIM is built on five pillars made up of evangelism, apologetics, spiritual disciplines, training, and humanitarian support. A fundamental part of this mission is to train men and women to defend the power and coherence of the Gospel of Jesus Christ. Our hope is to empower you to engage in earnest conversations with those who have questions about the Christian faith. Your donations make it possible for us to continue to reach others with the gospel and we cannot do this work without your help.
The Plaintiffs heeded these calls and made donations of several thousand dollars. Both couples allege that they “reasonably relied on Zacharias’s and RZIM’s uniform messaging that they were dedicated to a mission of Christian apologetics and that contributions made by people like the [Plaintiffs] would be used to financially support that mission.” The Plaintiffs initiated a class action lawsuit on August 4, 2021, against RZIM.
They alleged that RZIM “bilked hundreds of millions of dollars from well-meaning contributors who believed RZIM and Zacharias to be faith-filled Christian leaders,” when in fact, Zacharias was “a prolific sexual predator who used his ministry and RZIM funds to perpetrate sexual and spiritual abuse against women.”
To that end, the proposed class included “all persons in the United States who made contributions of monetary value to Ravi Zacharias or the Ravi Zacharias International Ministry from 2004 through February 9, 2021.”
The Plaintiffs further claimed that RZIM’s failure to respond appropriately to reports of Zacharias’s sexual misconduct “furthered the public deception that Zacharias was a faith-filled, moral, and upstanding Christian leader … and allowed Zacharias to continue sexually abusing women under the cover of Christian ministry and permitted Zacharias’s ongoing, deceptive fundraising efforts for RZIM.”
The complaint asserted four claims on behalf of the Plaintiffs and the proposed class against RZIM:
- unjust enrichment
- violation of the Georgia Charitable Solicitations Act
- violation of the Georgia Fair Business Practices Act
RZIM asked the court to dismiss all claims against it.
RZIM argues the ecclesiastical abstention doctrine applies
RZIM argued that the Plaintiffs’ claims dealt with religious issues relating to pastoral conduct that were barred from consideration by the civil courts under the so-called ecclesiastical abstention doctrine.
The court responded:
As the Court reads the Complaint, the Plaintiffs’ claims rest on two general categories of misrepresentations by Zacharias and RZIM.
First, the Plaintiffs make “faith-based allegations”—namely that the Defendants “misrepresented that they were faith-filled Christians of upstanding moral character.”
These faith-based allegations include that “[Zacharias and RZIM] held themselves out to be pious followers of the Holy Gospel, maintaining a religious level of morality and following the teachings of Jesus Christ.
Zacharias explicitly presented himself as a devoted Christian who was living a Christian lifestyle in keeping with the Gospel of Jesus Christ and who was worthy of leading others in their Christian faith. …” Second, the Plaintiffs make “misuse-of-funds allegations”—namely, that “[Zacharias and RZIM] affirmatively misrepresented that funds contributed to RZIM were to support its purported mission of Christian evangelism, apologetic defense of Christianity, and humanitarian efforts, when such funds were in fact used to support and hide Zacharias’s sexual abuse.”
The Plaintiffs allege that “RZIM funds were funneled to women subjected to Zacharias’s sexual misconduct,” and that “Zacharias provided money to these survivors, gave them large tips following massages, and showered them with expensive gifts.”
For example, “Touch of Hope was a discretionary fund that RZIM earmarked as a humanitarian effort, but a significant portion of its wire payments were made to or for the benefit of four women who were, at some point, Zacharias’s massage therapists.”
All the while, Zacharias and RZIM allegedly solicited donations with the stated purpose to fund travel, training, humanitarian aid, and other expenses “to continue reaching those around the globe with the Gospel.”
The court concluded that it could not address the Plaintiffs’ “faith-based allegations” since doing so would ask the court
to examine the theology and customs of Christianity and Christian apologetics to determine whether Zacharias and RZIM fulfilled the religion’s (and the Plaintiffs’) moral standards. The Court would have to make inherently ecclesiastical determinations as part of this inquiry, such as what it means to be a “faith-filled, moral, and upstanding Christian leader” and whether Zacharias’s alleged sexual misconduct is “diametrically opposed to the teachings of Christianity.”
It is not the role of federal courts to answer these kinds of questions “because that would require defining the very core of what the religious body as a whole believes.” In doing so, a court risks “establishing” a religion by “putting the enforcement power of the state behind a particular religious faction.”
Court: misuse-of-funds allegations can be decided
On the other hand, the court concluded that the Plaintiffs’ misuse-of-funds allegations did not implicate these concerns:
Those allegations, and the claims associated with them, raise what amounts to a secular factual question: whether the Defendants solicited funds for one purpose (i.e., Christian evangelism) but instead used those funds for another purpose (i.e., to perpetrate and cover up sexual abuse).
That dispute “concerns the [actions of Zacharias and RZIM] not their beliefs,” and can be decided according to state statutes and common law principles.
The Plaintiffs asserted a claim for unjust enrichment on the grounds that it would be inequitable for the Defendants to keep donations raised on false pretenses. The court agreed, noting that “a conclusion that one party has obtained benefits from another by fraud is one of the most recognizable sources of unjust enrichment.” The court added:
According to the Complaint [RZIM] “induced [Plaintiffs and Class Members] to fund its purported Christian apologetic evangelism, training, and humanitarian efforts,” but then “failed to use the funds for these purposes, diverting funds to massage parlors and as financial support to survivors of Zacharias’s sex abuse.”
The Plaintiffs allege that they would not have donated to [RZIM] had it “truthfully represented that it would … use those financial benefits for their own, wrongful purposes, including in the furtherance of, and to hide, Zacharias’s sexual misconduct.” Taken as true, these allegations … support that [RZIM] unfairly obtained financial benefits by misrepresenting their intended or ultimate use.
Georgia Charitable Solicitations Act
The Plaintiffs asserted that RZIM had violated the Georgia Charitable Solicitations Act. The Charitable Solicitations Act, which has been enacted in most states, creates a private cause of action against a “charitable organization” to recover damages resulting from a violation of the statute. The term “charitable organization” is defined to exclude a “religious organization”—or any entity which (A) “conducts regular worship services” or (B) “is qualified as a religious organization under Section 501(c)(3) of the Internal Revenue Code … that is not required to file IRS Form 990 . …”
The court concluded that:
RZIM “has satisfied the elements of a religious organization under the Act as it is exempt from federal income tax under Section 501(c)(3) and is not subject to the filing requirements of Form 990.”
Georgia Fair Business Practices Act
The Plaintiffs asserted a claim under the Fair Business Practices Act on the grounds that RZIM’s charitable solicitations were unfair and deceptive consumer practices. The statute permits “any person who suffers injury or damages … as a result of consumer acts or practices in violation of this part … [to] bring an action individually for damages and injunctive relief.”
The court rejected RZIM’s motion to dismiss this basis of liability.
RZIM: Plaintiffs lacked “standing” to sue
RZIM argued that the Plaintiffs lacked “standing” to sue in federal court. Article III of the US Constitution limits the jurisdiction of federal courts to “cases” and “controversies,” which is interpreted to mean that the plaintiff bringing a lawsuit in federal court must have suffered some form of tangible injury to be redressed. RZIM pointed to several decisions as support that “donating money to a charitable fund does not confer standing to challenge the administration of that fund … and that the Plaintiffs’ unrestricted charitable gifts to RZIM cannot constitute an injury for purposes of Article III standing.”
The court agreed that “at common law, a donor who has made a completed charitable contribution, whether as an absolute gift or in trust, had no standing to bring an action to enforce the terms of his or her gift or trust unless he or she had expressly reserved the right to do so.” The court noted:
The Plaintiffs asserted that they “sustained monetary and economic injuries” arising out of their donations to RZIM. The Plaintiffs donated several thousand dollars to RZIM. … Before making donations to RZIM, the Plaintiffs allege that they listened to radio programs, podcasts, and CDs featuring Zacharias; watched videos published by RZIM on YouTube; and read books by Zacharias and others within RZIM. The Plaintiffs recall hearing messages [that] solicited financial contributions to advance that work. The Plaintiffs also allege that they reasonably relied on Zacharias’s and RZIM’s uniform messaging … that contributions made by people like the [Plaintiffs] would be used to financially support that mission.” The Court concludes that these allegations satisfy Article III’s standing requirements. …
What this means for churches
Donors sometimes request a return of contributions made to their church. This may occur for several reasons, including:
- A donor has begun attending another church.
- Theological disagreement(s).
- A need for funds for health and other emergencies.
- A church fails to use designated funds for the specified purpose.
Church leaders often do not know how to respond to such requests. The federal court in this case ruled that donors were entitled to a return of their contributions on the basis of:
- RZIM’s egregious misrepresentations regarding the use of donated funds,
- the principle of unjust enrichment (“a conclusion that one party has obtained benefits from another by fraud is one of the most recognizable sources of unjust enrichment”),
- a violation of the state Fair Business Practices Act
Note a few other important aspects of the court’s ruling:
First, the court allowed the case to proceed as a class action, meaning that the number of plaintiffs in the case would grow significantly to include all donors victimized by RZIM’s misrepresentations regarding the use of funds.
Second, the court concluded that the Plaintiffs had “standing” to sue in federal court. Standing is a requirement in any federal lawsuit, and generally means that the plaintiff bringing a lawsuit must suffer some form of tangible injury. While the court agreed that “at common law, a donor who has made a completed charitable contribution, whether as an absolute gift or in trust, had no standing to bring an action to enforce the terms of his or her gift or trust unless he or she had expressly reserved the right to do so,” it concluded that “RZIM’s uniform messaging … that contributions made by people like the [Plaintiffs] would be used to financially support that mission” satisfied the standing requirements.
Carrier v. Ravi Zacharias International Ministries, 2022WL1540206 (N.D. Ga, 2022)
Key point 8-14.1. The federal Americans with Disabilities Act prohibits employers with at least 15 employees, and that are engaged in interstate commerce, from discriminating in any employment decision against a qualified individual with a disability who is able, with or without reasonable accommodation from the employer, to perform the essential functions of the job. Accommodations that impose an undue hardship upon an employer are not required. Religious organizations may give preference to nondisabled members of their faith over disabled persons who are members of a different faith.
A federal court in Georgia ruled that a church may have violated the Americans with Disabilities Act by dismissing a custodian suffering from schizophrenia, but it could not be liable for failing to reasonably accommodate the custodian's disability since the custodian never suggested reasonable accommodations for the church to try.
A church hired a man (the "plaintiff") as a maintenance worker. He was responsible for cleaning and maintaining the church sanctuary and other areas. He performed his duties well and often was complimented by church members for his good work. He suffered from schizophrenia, a condition characterized by severe anxiety, depression, fear, nightmares, seizures, delusions, hallucinations, difficulty interacting with people, trouble thinking, and insomnia. He controls his symptoms by taking medication and working, but his ability to work is limited to 8 hours per day for 40 hours per week.
The plaintiff further claimed that he was verbally abused by his supervisor when he refused to sign a disciplinary notice regarding offenses and failures he did not commit. The supervisor mentioned plaintiff's mental illness and suggested that he was "off his medications." A few weeks later the plaintiff had a mental breakdown and was hospitalized.In 2012, the church increased his duties to include cleaning the church's classrooms despite knowing his mental limitations. Plaintiff was unable to perform the extra duties to the required standards, which he alleged even people without a mental illness would have been incapable of meeting. He alleged that the church assigned him this work because it knew he would fail and then could use his failure as a pretext to dismiss him due to his disability. In fact, at least three people now perform the job duties plaintiff had been assigned to perform alone.
The church terminated the plaintiff's employment, and he later sued the church for: (1) discriminatory discharge in violation of the Americans with Disabilities Act ("ADA") and a similar state law; (2) failure to make a reasonable accommodation; and (3) intentional infliction of emotional distress. The church asked the court to dismiss all claims.
The court noted that the ADA prohibits an employer from discriminating against "a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." To establish a "prima facie case" of disability discrimination under the ADA, a plaintiff must show that "(1) he is disabled; (2) he was a 'qualified individual' at the relevant time, meaning he could perform the essential functions of the job in question with or without reasonable accommodations; and (3) he was discriminated against because of his disability." Unlawful discrimination also includes the failure to provide "reasonable accommodations" for the disability unless doing so would impose undue hardship on the employer.
The church argued that the plaintiff's ADA claims failed for three reasons: (1) he was not a qualified individual because he was unable to perform his duties to the required standards; (2) he failed to identify a reasonable accommodation that would have enabled him to perform his duties to the required standard; and (3) there was no reasonable accommodation for plaintiff's schizophrenia.
The court noted that the plaintiff was capable of working 8 hours a day for 40 hours per week, and he performed his duties well for a number of years before being terminated. Even though he acknowledged that he was unable to perform the increased amount of work asked of him, he also "alleged facts demonstrating that the church increased his workload to create a pretext for discriminatory discharge. In that regard, he has sufficiently alleged … that he is a qualified individual capable of performing the essential functions of his job without an accommodation." As a result, the court denied the church's request to dismiss the discriminatory discharge claim.
However, the court noted that a plaintiff in an ADA claim "bears the burden of identifying an accommodation, and of demonstrating that the accommodation allows him to perform the job's essential functions." In general, "it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed. Once an individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation." The plaintiff never requested an accommodation before he was terminated, stating only that "the church made no effort to accommodate [his] mental illness and did not even consider or discuss with him ways to accommodate his mental disability… . Because plaintiff fails to allege that he requested an accommodation, his ADA discrimination claim based on a failure to accommodate is dismissed."
The court also dismissed the plaintiff's disability claim under state law, since the statute's definition of disability excluded schizophrenia.
The plaintiff alleged that the church was liable on the basis of intentional infliction of emotional distress for terminating him as a result of his inability to perform the extra work assigned to him. The court dismissed this claim as well, noting that to establish a claim for intentional infliction of emotional distress, a plaintiff must prove that: "(1) the conduct giving rise to the claim was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. The defendant's conduct "must be so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." The court concluded that the church's conduct did not meet this strict standard.
What this means for churches
This case illustrates that an employer may be liable for violating the Americans with Disabilities Act both by terminating an employee because of a disability, and for refusing to assist disabled employees to perform the essential functions of their job by offering reasonable workplace accommodations. The court concluded that the church may be liable for discriminatory termination, but not for failing to implement reasonable accommodations since it was the plaintiff's responsibility to suggest accommodations which he failed to do. Puckett v. Board of Trustees, 2014 WL 1572748 (N.D. Ga. 2014).
Key point 10-04.1. Some courts have found churches liable on the basis of negligent selection for the molestation of a minor by a church worker if the church failed to exercise reasonable care in the selection of the worker.
Key point 10-04.3. Churches can reduce the risk of liability based on negligent selection for the sexual molestation of minors by adopting risk management policies and procedures.
Key point 10-09.1. Some courts have found churches liable on the basis of negligent supervision for a worker’s acts of child molestation on the ground that the church failed to exercise reasonable care in the supervision of the victim or of its own programs and activities.
A Georgia court ruled that a church that hired a youth worker without checking the references listed in his employment application could be liable on the basis of negligent hiring for the workers’ sexual molestation of a minor. A church’s child protection policy stated that “all volunteers working with children or youth” were required to have maintained church membership for at least three months and to complete a membership class and an application, which included two reference forms and written consent to a background check. A 21-year-old male (the “defendant”) began attending the church, and soon expressed an interest in volunteering to work with the youth ministry. He filled out a volunteer application, which included the names of two references, and gave it to the church’s youth pastor. The church’s administrative assistant found the application suspicious, felt that there was “something not right” about him, and communicated these concerns to the youth pastor, who took no further action.
The defendant began attending youth group meetings, and assisted the youth pastor. One of these meetings was a “game night” at which the defendant handed out pizza, played catch football, ran laps around a makeshift trail, and took some boys to the weight room, with some of these activities taking place without any other adult present.
One of the two reference forms turned in by the defendant bore a signature from a woman who later testified that she had declined to provide a reference for the defendant, that she never filled out the reference form, and that her signature on the form was a forgery. She further testified that had the church contacted her, which it did not, she would “never” have recommended the defendant as a volunteer because she had “concerns that he may be a sexual predator.” For example, she testified that the defendant was a frequent visitor to her house, and that he paid special attention to her second son, who was four years old; that on one night when she and two of her children, and the defendant, were all sleeping together in the same room, the defendant, who was sleeping on the floor, repeatedly “grabbed” the feet of her second son, who was also sleeping on the floor, in an effort to “pull” or “slide” the boy’s body “down” toward him. This happened “four or five times,” and the defendant pretended to be asleep throughout. She repeatedly pulled her son away from the defendant before pulling him off the floor entirely and into bed with her.
At about the time that the defendant became involved with the church’s youth ministry, a 14-year-old boy (the “victim”) began attending Wednesday night youth services at the church as a guest of a friend. On one of his visits, the victim met the defendant, describing him to his mother as a “cool” youth leader who liked the same video games that he did.
A few weeks later, the church held a fall festival that included food, children’s games, and other activities. At around 2 p.m. that day, the defendant called the victim and invited him to the festival. When the victim put his mother on the phone, the defendant told her that he was a youth leader and asked if the victim could attend the festival. The victim’s mother agreed; drove the boy and his friend to the church, where adults and children were engaged in cleanup after the conclusion of the festival; and dropped the two boys off in the parking lot without speaking to the defendant or any other adult.
The victim and his friend accompanied the defendant to a vacant room in the church where the defendant told the boys that he wanted to show them “some Army moves” he learned from his drill sergeant. The defendant then put the victim in a headlock, choked him until he passed out, and slapped him in order to revive him. The defendant thereafter led the boys off church property to a wooded nature trail. He told the victim’s friend to wait some distance away. The defendant then proceeded to sexually molest the victim. Later that day, the victim informed his parents what had happened. The parents immediately called the youth pastor, who informed them that: (1) Although the church had received the defendant’s application to become a youth worker, it had not completed the background check on him required under church policy; and (2) the defendant should not have been allowed to have unsupervised contact with youth at the church.
The defendant was arrested and charged with one count of attempted aggravated child molestation and three counts of child molestation. He pled guilty to two counts of child molestation and was sentenced to 20 years.
The victim’s parents sued the church, claiming that it was negligent when it hired, retained, and supervised the defendant as a youth group volunteer and its failure to warn the victim. The trial court dismissed the lawsuit on the ground that “no evidence” demonstrated that the church “knew or should have known” of the defendant’s “propensity or proclivity to commit the criminal offense of sexual assault against a minor.” The parents appealed.
The appeals court began its opinion by noting:
An employer must exercise ordinary care in the selection of employees, and must not retain them after knowledge of incompetency … . These same principles apply to the acts or omissions of non-profit organizations, including churches, when such an organization solicits volunteers to perform projects on its behalf … . As a general rule, a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.
However, a church will be liable for injuries occurring outside the scope of a volunteer’s duties “only where there is sufficient evidence to establish that the employer reasonably knew or should have known of the person’s tendencies to engage in certain behavior relevant to the injuries allegedly incurred by the plaintiff,” such that it is “reasonably foreseeable that the person could cause the type of harm sustained by the plaintiff.”
The court concluded that “the question of whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case,” and specifically, “a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.” The court continued:
The church allowed the defendant unsupervised contact with children before it checked his references, one of which would have yielded some evidence that he had attempted to molest a child—the same category of criminal and tortious conduct of which [the parents] complain. Because a jury could reasonably conclude on this record that the church failed to exercise reasonable care as to accepting the defendant’s services as a volunteer youth leader without contacting either of his references, the trial court erred when it granted the church’s summary judgment on the negligent hiring, retention, and supervision claims.
What This Means For Churches:
This case is relevant and instructive to church leaders for three reasons.
First, the court affirmed that “a person who undertakes the control and supervision of a child, even without compensation, has the duty to use reasonable care to protect the child from injury. Such person is not an insurer of the safety of the child. He is required only to use reasonable care commensurate with the reasonably foreseeable risk of harm.”
Second, the court concluded that “the question of whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case,” and specifically, “a jury may find that employers who fill positions in more sensitive businesses without performing an affirmative background or criminal search on job applicants have failed to exercise ordinary care in hiring suitable employees, even absent a statutory duty to conduct such background searches.”
Third, the court concluded that the church could be liable for the defendant’s acts on the basis of negligent hiring because it “allowed him unsupervised contact with children before it checked his references, one of which would have yielded some evidence that he had attempted to molest a child.” In fact, the defendant provided the church with two written references, but one of them later testified that she was never asked for a reference by the church, that her “signature” had been forged, and that she would have alerted the church to the defendant’s propensity to molest minors had she been contacted.
The takeaway point is that churches should not rely on written references provided by applicants for youth or children’s ministry without verifying the authenticity of the references through personal contact with them. Allen v. Church, 761 S.E.2d 605 (Ga. App. 2014).
Key point 4-02. Defamation consists of (1) oral or written statements about another person; (2) that are false; (3) that are "published" (that is, communicated to other persons); and (4) that injure the other person's reputation.
A Georgia court ruled that it was not barred by the First Amendment guaranty of religious freedom from resolving the defamation claim of a deacon who was falsely accused of adultery and theft of church assets by a member at a church business meeting. At the close of a church business meeting, a member (the "defendant"), who was not on the agenda, stood up and demanded to read a written declaration that he had prepared. In front of all those present, he read aloud from the document, accusing a deacon (the "plaintiff") of having committed adultery on various occasions and of having attempted to steal money from the church. In fact, the accusations were false, and the defendant acknowledged that he did not have any facts to support the accusations. The plaintiff sued the defendant for defamation, and a jury found in his favor and awarded him $125,000 in damages.
On appeal, the defendant claimed that the court lacked jurisdiction to hear the case because it involved church governance, faith, and procedure. The appeals court acknowledged that "civil courts have no power or authority to interfere in the internal affairs of a religious organization concerning doctrines, faith, or belief." However, this does not mean "that our courts are prohibited from addressing all disputes that arise in an ecclesiastical context," and that when a dispute "does not involve inquiry into church doctrine, faith or other ecclesiastical matters, the civil courts are not prohibited from adjudicating the dispute."
The court noted that this case involved a defamation claim based on accusations of adultery and attempted theft, and that "such conduct is not protected by the doctrine of separation of church and state [merely] by utterance [of the accusations] during the course of a church meeting …. Because this case does not require an impermissible inquiry into ecclesiastical matters, and instead involves resolution of a slander claim, the trial court properly exercised its jurisdiction over the dispute."
What This Means For Churches:
This case is important for the following reasons:
(1) The courts. The case illustrates that some communications by church members regarding other members may be defamatory. The court acknowledged that the civil courts cannot resolve such disputes if doing so would require an inquiry into religious doctrine. On the other hand, the courts can resolve defamation claims involving statements accusing church members of other wrongs requiring no interpretation of religious doctrine.
(2) Personal liability of members. The case demonstrates the substantial personal liability that church members face when they accuse other members of criminal behavior, even in the course of a church business meeting. Giles v. Heyward, 726 S.E.2d 434 (Ga. App. 2012).
This article first appeared in Church Law & Tax Report, March/April 2013.
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Key point. State laws prohibiting holders of concealed weapons permits from carrying weapons on church property do not necessarily violate the First Amendment guaranty of religious freedom or the Second Amendment right to bear arms.
Does a state law prohibiting the carrying of concealed weapons in a church violate the constitutional rights of church members to bear arms and practice their religion? A federal appeals court said no. In 2010, the State of Georgia amended its concealed weapons law to make it a misdemeanor offense for a person with a concealed weapons permit to carry a concealed weapon “in a place of worship.” Several plaintiffs, including a church and its pastor, filed a lawsuit challenging the constitutionality of this law.
First Amendment guaranty of religious freedom
The plaintiffs claimed that the statute violated their First Amendment right to freely exercise their religion because it imposed an impermissible burden on their ability to attend or conduct worship services by prohibiting them from carrying a firearm on their person for self-defense while doing so. The individual plaintiffs did not contend that their religious beliefs required them to carry a firearm into a place of worship, nor did the church allege that its members’ religious beliefs required them to carry a firearm into their church. Instead, the plaintiffs claimed that attending worship services is a sincere religious belief that has been impermissibly burdened by the statute’s requirements.
The court began its opinion by stressing that only beliefs rooted in religion are protected by the First Amendment guaranty of religious freedom. As a result, persons claiming a violation of their religious freedom must show that (1) “they hold a belief, not a preference, that is sincerely held and religious in nature, not merely secular; and (2) the law at issue in some way impacts [their] ability to either hold that belief or act pursuant to that belief.” The court concluded:
[The plaintiffs’ lawsuit] fails to state a claim for relief under the First Amendment. We searched … to no avail in an attempt to find factual allegations that could possibly be construed as alleging that the [concealed weapons law] imposes a constitutionally impermissible burden on one of plaintiffs’ sincerely held religious beliefs. At various points, plaintiffs allege that they would like to carry a handgun in a place of worship for the protection either of themselves, their family, their flock, or other members of the Tabernacle. Plaintiffs conclude by alleging that the concealed weapons law interferes with their free exercise of religion by prohibiting them from engaging in activities in a place of worship when those activities are generally permitted throughout the State. That plaintiffs “would like” to carry a firearm in order to be able to act in “self-defense” is a personal preference, motivated by a secular purpose …. There is no First Amendment protection for personal preferences; nor is there protection for secular beliefs …. In sum, conclusory allegations that the concealed weapons law interferes with plaintiffs’ free exercise of religion are not sufficient to survive a motion to dismiss. Their free exercise claim is not plausible, and the District Court correctly dismissed it.
the Second Amendment right to bear arms
The plaintiffs also claimed that the Georgia statute impermissibly burdened their right to keep and bear arms secured by the Second Amendment to the United States Constitution. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The plaintiffs relied on a 2008 decision by the United States Supreme Court. District of Columbia v. Heller, 554 U.S. 570 (2008). In the Heller case, the Supreme Court ruled that several statutes in the District of Columbia which, taken together, amounted to a total ban on possessing a handgun in the home, violated the Second Amendment. But the only conduct that the Supreme Court clearly located within the Second Amendment was the possession and carrying of a handgun by an otherwise qualified person within his home for self-defense. It carefully noted that “the right secured by the Second Amendment is not unlimited,” and that “historically, the right had never been viewed as a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
The court noted that “an individual’s right to bear arms as enshrined in the Second Amendment, whatever its full scope, certainly must be limited by the equally fundamental right of a private property owner to exercise exclusive dominion and control over its land.” It concluded:
To the extent plaintiffs’ argument implies that the Second Amendment … somehow abrogates the right of a private property owner—here, a place of worship—to determine for itself whether to allow firearms on its premises and, if so, under what circumstances, the argument badly misses the mark. We conclude that the Second Amendment does not give an individual a right to carry a firearm on a place of worship’s premises against the owner’s wishes because such right did not preexist the Amendment’s adoption. Enforcing the concealed weapons law against a license holder who carries a firearm on private property against the owner’s instructions would therefore be constitutional.
What This Means For Churches:
This case is important, for it is the first case to address the constitutionality of state laws barring holders of concealed weapons licenses to bring their weapons onto designated properties, including churches. According to this court, such restrictions do not violate either the First Amendment guaranty of religious freedom, or the Second Amendment right to bear arms. GeorgiaCarry.Org, Inc. v. Georgia, 2012 WL 2947817 (11th Cir. 2012).
Key point 7-03.3. Most courts apply the “neutral principles of law” rule in resolving disputes over the ownership and control of property in “hierarchical” churches. Under this rule, the civil courts apply neutral principles of law, involving no inquiry into church doctrine, in resolving church property disputes. Generally, this means applying neutral legal principles to nondoctrinal language in any one or more of the following documents: (1) deeds to church property; (2) a church’s corporate charter; (3) a state law addressing the resolution of church property disputes; (4) church bylaws; or (5) a parent denomination’s bylaws.
The Georgia Supreme Court issued two rulings addressing the control of church property when churches disaffiliate from a parent denomination. The two cases, involving an Episcopal and a Presbyterian church, are summarized below.
Case #1: Rector, Wardens, Vestrymen of Christ Church in Savannah v. Bishop of Episcopal Diocese of Georgia, Inc., 718 S.E.2d 237 (Ga. 2011)
This case involved a dispute over control of property belonging to the oldest church in Georgia, Christ Church in Savannah (“Christ Church”), with a history spanning almost three centuries. As with so many hierarchical church property disputes that end up in court, this case had its genesis in doctrinal positions taken by the general denomination—the Protestant Episcopal Church in the United States of America (“Episcopal Church”)—that were opposed by a majority faction of the local congregation. In March 2006, the leadership of the majority faction voted to sever Christ Church’s 180-year-old ties with the Episcopal Church and the Episcopal Diocese of Georgia (“Georgia Diocese”) without advance notice to the Bishop of the Georgia Diocese. The congregation voted to denounce the Episcopal Church for “abandoning the faith,” and join the Diocese of Soroti in the Anglican Province of Uganda.
The minority faction, which remained loyal to the Episcopal Church, had to find another place to worship. The Georgia Bishop recognized the minority faction as the true Christ Church entitled to control of the church property. The Bishop also recognized the rector, wardens, and vestry elected by the minority faction as the rightful leaders of Christ Church. However, the majority faction refused to surrender the church property, prompting the Georgia Diocese to ask a court to declare that all property of Christ Church is held in trust for the Episcopal Church. The trial court granted summary judgment in favor of the Episcopal Church and Georgia Diocese, and a state appeals court affirmed this ruling. The majority faction appealed to the state supreme court.
Having reviewed the governing documents of the local church and the general church, we concluded … that a trust on Christ Church’s property in favor of the Episcopal Church existed well before the dispute erupted.
The Georgia Supreme Court began its opinion by noting that “secular courts may resolve church property disputes,” and “to avoid First Amendment concerns, Georgia courts apply neutral principles of law to determine whether the local congregation or the parent, or general, church in a hierarchical denomination like the Episcopal Church has the right to control local church property, while avoiding any inquiry into religious doctrine.” These neutral principles include “deeds and other instruments of title, state statutes, and documents regarding local and general church government.”
The court quoted from a 1979 ruling of the United States Supreme Court, which approved the “neutral principles” approach to resolving church property disputes. Jones v. Wolfe, 443 U.S. 595 (1979). The Supreme Court said:
Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.
Two months after this ruling, at the Episcopal Church’s 1979 General Convention, the House of Bishops passed the following amendment to Title I, Canon 6 of the Canons of the Episcopal Church:
All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission on Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.
The amendment, along with others that were enacted at the same time, became known as the “Dennis Canon.”
Over the next two decades, Christ Church continued to obtain property without making any effort to avoid the general church’s control and otherwise continued to function as a constituent member of the general church, complying with the constitution and canons of the Episcopal Church and the Georgia Diocese. This changed in 2003 when the Episcopal Church General Convention approved the election of a non-celibate gay person, and the recognition that same-sex unions are a part of our “common life.” The dispute deepened in 2004 and 2005, as representatives of Christ Church continued to express concerns to the Georgia Bishop about the theological direction of the general church. In 2007, the board of Christ Church adopted a resolution, later approved by a 172-24 vote of the congregation, which denounced the Episcopal Church and the Georgia Diocese as having abandoned the faith and purported to place Christ Church under the ecclesiastical authority of the Anglican Province of Uganda and the Diocese of Soroti.
The Georgia Supreme Court, based on a neutral principles of law analysis that relied primarily on the Dennis Canon, concluded that the property of Christ Church was held in trust for the benefit of the general church and the Georgia Diocese:
Having reviewed the governing documents of the local church and the general church, we conclude … that a trust on Christ Church’s property in favor of the Episcopal Church existed well before the dispute erupted that resulted in this litigation …. Like the highest courts of other states, we view the Dennis Canon as making explicit that which had always been implicit in the discipline of the Episcopal Church (and the Church of England before it), as shown in the documents setting forth, in legally cognizable and nonreligious terms, the property-related rules and the relative authority of Christ Church, the Georgia Diocese, and the Episcopal Church, as well as the parties’ understanding of them as revealed by their course of conduct. The Dennis Canon adopted in 1979 merely codified in explicit terms a trust relationship that has been implicit in the relationship between local parishes and dioceses since the founding of [Episcopal Church] in 1789 ….
[The majority faction of Christ Church] characterizes this dispute as the Episcopal Church trying to take Christ Church’s property. We disagree with that view of the record and the law. The First Amendment allows [the majority faction] to leave the Episcopal Church and worship as they please, like all other Americans, but it does not allow them to take with them property that has for generations been accumulated and held by a constituent church of the Protestant Episcopal Church in the United States of America. Our conclusion regarding the effect of the governing documents of the local and general church in this case is consistent with U.S. Supreme Court precedent, this Court’s prior cases, and the decisions of several other state supreme courts ….
In the end, it is fair to say, as the trial court did, that Christ Church “can no more shrug off the trust, than the National Church could unilaterally impose it. The trust has historical roots going back to the English church and the founding of the Episcopal church in this country. Christ Church got the benefit of its bargain with the National Church for many years. The National Church has the right to insist on its part of the bargain as well.
Case #2: Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc., 719 S.E.2d 446 (Ga. 2011)
A church affiliated with the Presbyterian Church (U.S.A.) in 1983. For the next several years the church functioned as a regular member of the national church. Its pastor from 1978 to 1984 stated that the church “took part in the governance of the denomination by regularly attending meetings of the Atlanta Presbytery” and “experienced benefits of being associated with the [PCUSA] such as participation in the representational governance … and the availability of the denomination’s resources.” Similarly, the church’s pastor from 1984 to 2003 stated that the church “actively participated in the governance of the denomination” and “experienced some of the benefits of being associated with the greater denomination, such as locating an Associate Pastor with the help of the [Presbytery] and taking advantage of a year round camp and conference center.”
By 2007, however, a dispute arose between the church, the Presbytery of Atlanta (the “Presbytery”), and PCUSA as to who controlled the church’s property. In 2007, the church asked a court to declare it the owner of all church property, and to affirm that it did not hold it in trust for the benefit of the PCUSA. The Presbytery filed a counterclaim in which it asserted that the church held the church property in trust for the benefit of the PCUSA and should be enjoined from transferring the property. In November 2007, a majority of the church congregation voted to disaffiliate from the PCUSA. A few months later, the church affiliated with the Evangelical Presbyterian Church, a separate denomination.
A trial court concluded, among other things, that Section G-8.0201 of the PCUSA Book of Order created a trust in favor of the PCUSA as to any property held by the church. A state appeals court reversed the trial court’s decision. It concluded that the Book of Order did not clearly impose a trust on all church properties in favor of the PCUSA. It concluded, “In the absence of some showing of intention and assent on the part of [the church], neutral principles of law cannot support the unilateral imposition of a trust provision drafted by the purported beneficiary of the trust and the resulting deprivation of the opposing party’s property rights.” The Presbytery appealed to the state supreme court.
The Georgia Supreme Court began its opinion by quoting section G-8.0201 of the Book of Order: “All property held by or for a particular church … whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association … is held in trust nevertheless for the use and benefit of the [PCUSA].” Section G-8.0301 provides that if a local church stops using its property as a church of the PCUSA, the property “shall be held, used, applied, transferred, or sold as provided by the presbytery.” Section G-8.0601 similarly provides that, in the event of a schism within the membership of a local church, “the presbytery shall determine if one of the factions is entitled to the property because it is identified by the presbytery as the true church within the Presbyterian Church (U.S.A.). This determination does not depend upon which faction received the majority vote within the particular church at the time of the schism.”
The court noted that the church’s corporate charter specified that the corporation’s purpose was “to be a church institution which is a member of the Presbytery of Atlanta of the [PCUSA] or any successor Presbytery thereof” and that its bylaws cannot conflict with the PCUSA Book of Order “as the same now exists or may hereafter from time to time be amended.”
The court noted that:
To avoid First Amendment concerns in resolving property disputes in hierarchical religious denominations, secular courts apply “neutral principles of law” to determine whether the local church or the parent church has the right to control local property, avoiding any inquiry into religious doctrine. These “neutral principles” include relevant deeds, state statutes, and the governing documents of the local and general churches …. We review all of these materials, keeping in mind that the outcome of these church property disputes usually turns on the specific facts presented in the record, that the neutral principle factors are interrelated, and that our ultimate goal is to determine “the intentions of the parties” at the local and national level regarding beneficial ownership of the property at issue as expressed “before the dispute erupted” in a “legally cognizable form.”
In concluding that the church held its property in trust for the Presbytery and PCUSA, the court observed:
The church joined the PCUSA … in 1983. There is no dispute that at that time the PCUSA’s governing constitution plainly stated that local churches hold their property in trust for the use and benefit of the general church, see Book of Order § G-8.0201 …. Moreover, when the church affiliated with the PCUSA, it agreed that it “was a local expression of the universal church,” Book of Order § G-4.0102, that it would be “governed by this Constitution,” § G-4.0104, that its active members have “voluntarily submitted to the government of this church,” § G-5.0202, and that it would “function under the provisions of this Constitution.” § G-7.0101 …. Thus, contrary to the [appellate court’s] view that the PCUSA “unilaterally imposed” the trust provision without any assent by the local church … the church’s act of affiliating with the PCUSA in 1983 with the trust provision already in its governing constitution demonstrated that it assented to that relinquishment of its property rights …. And the church’s continued membership in the PCUSA, for nearly a quarter of a century in all, with the trust provision always in full effect, further bolsters this conclusion ….
The neutral principles doctrine, as approved by the [United States Supreme Court’s 1979 ruling] in Jones v. Wolf and as applied by this court, allows hierarchical denominations to structure the property relationships between the general and local churches before disputes arise. The result is not pre-ordained; it depends on the deeds, statutes, and national and church governing documents. What has happened over the years since Jones v. Wolf is that many hierarchical denominations have added more explicit property provisions to their general and local church governing documents, as the Supreme Court said would be appropriate. Thus, instead of our finding no mention of property issues in those documents, we find provisions showing either that the general church does not control local church property or, as in this case and others, provisions showing that local church property is held in trust for the general church. Applying the neutral principles with an even hand, we simply enforce the intent of the parties as reflected in their own governing documents; to do anything else would raise serious First Amendment concerns.
In sum, the resolution of this church property dispute in the national church’s favor does not rest on the “mere connectional relationship between a local and general church.” Instead, our decision derives from the specific language of the governing documents adopted by the local and general churches …. Like the trial court, we conclude that neutral principles of law demonstrate that an implied trust in favor of the PCUSA exists on the local church’s property to which the church holds legal title.
Key point 3-08.05. In most states a counselee can waive the clergy-penitent privilege by disclosing the privileged communication to someone other than the minister. In some states the minister also may waive the privilege.
* The Georgia Supreme Court ruled that the clergy-penitent privilege did not apply to a confession made by a murder suspect to a prison chaplain, since the suspect had waived the privilege when he confessed to a law enforcement officer. A criminal defendant who was in prison awaiting trial for murder told a prison chaplain that he wanted to confess to the crime. The chaplain testified at the defendant’s trial that he told the defendant that “if you want to do a confession, you don’t do it to the chaplains. You do it to the proper authorities.” The defendant asked to speak to a law enforcement officer, and one was immediately sent to the defendant’s cell to take his confession. The officer asked the defendant if he wanted to confess, and the defendant confirmed that he did. The officer then informed the defendant that if he did confess the confession would be forwarded to the detective who was handling his case. With all of this information, the defendant signed a written confession that was drafted by the law enforcement officer, knowing that it would be handed over to law enforcement in the case against him.
The defendant was convicted of murder, in part due to the signed confession. On appeal, the defendant claimed that the written confession should not have been introduced as evidence at his trial because it was protected by the clergy-penitent privilege. The Georgia Supreme Court disagreed: “Under these circumstances, the clergy-parishioner privilege is simply not applicable because the defendant knowingly gave the confession to law enforcement, not privately to the chaplain. The chaplain did not disclose the confession to police. To the contrary, the defendant did so himself. Moreover, even if there were any clergy privilege at play in this case, it was repeatedly waived. The chaplain testified that he sought out law enforcement at the defendant’s request, and both the chaplain and the officer who took the confession first made certain that he understood what he was doing and that he wanted to do it.” Willis v. State, 699 S.E.2d 1 (Ga. 2010)
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Key point. State laws prohibiting holders of concealed weapons permits from carrying weapons on church property do not necessarily violate the First Amendment guaranty of religious freedom or the Second Amendment right to bear arms.
Does a state law prohibiting the carrying of concealed weapons in a church violate the constitutional rights of church members to bear arms and practice their religion? A federal court in Georgia said no. In 2010, the State of Georgia enacted a law making it a misdemeanor offense for a person with a concealed weapons permit to carry a concealed weapon “in a place of worship.” Several plaintiffs, including a church and its pastor, filed a lawsuit challenging the constitutionality of this law.
First Amendment guaranty of religious freedom
The plaintiffs claimed that the statute violated their First Amendment right to freely exercise their religion because it imposed an impermissible burden on their ability to attend or conduct worship services by prohibiting them from carrying a firearm on their person for self defense while doing so. The individual plaintiffs did not contend that their religious beliefs required them to carry a firearm into a place of worship, nor did the church allege that its members’ religious beliefs required them to carry a firearm into their church. Instead, the plaintiffs claimed that attending worship services is a sincere religious belief that has been impermissibly burdened by the statute’s requirements.
The court noted that the Georgia statute prohibiting concealed weapons licensees from bringing weapons onto church property “does not prohibit anyone from attending services at a place of worship. Instead, any burden on attending worship services is attenuated and tangential because the law only requires that persons either not carry a weapon to a place of worship, leave their weapons secured in their vehicles, or notify security or management personnel of the presence of the weapon and follow directions for removing, securing, storing, or temporarily surrendering the weapon.”
The court noted that “laws imposing substantial burdens on religious practices” need a “compelling government interest” to survive a First Amendment challenge. It concluded, however, that the Georgia statute “does not pressure religious conduct enough to constitute a substantial burden” on religious practices:
No criminal sanctions forbid plaintiffs from attending a place of worship. The law does not force them to decide between attending worship services or supporting themselves and their families. Instead, plaintiffs only risk criminal sanction if they refuse to comply with the law’s mandates about carrying firearms in a place of worship, an activity they do not attach to any sincere religious belief. The burden of complying with the law’s requirements does not prohibit them from attending worship services, nor does it place an “unmistakable” pressure on them “to forego religious precepts.” Accordingly, the court concludes that any burden posed by the law is too insubstantial and too attenuated to any of plaintiffs’ sincere religious beliefs to state a claim under the [First Amendment].
The church also claimed that the Georgia statute violated the First Amendment’s guaranty of religious freedom since it “encroaches on the church’s ability to manage its internal affairs.” The church cited a case in which the United States Supreme Court observed that “there exists a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952). However, the Georgia court noted that the Supreme Court’s ruling makes clear that the First Amendment guaranty of religious freedom is “only implicated when the state interferes with matters of church government, faith, or doctrine. The law at issue here does not touch on such ecclesiastical matters. The church does not allege that the safety concerns or security protocols of a place of worship involve issues of religious faith or doctrine, as opposed to purely secular issues. Consequently, the law in this case does not encroach on the church’s ability to manage its internal affairs in a way that violates the First Amendment.”
the Second Amendment right to bear arms
The plaintiffs also claimed that the Georgia statute impermissibly burdened their right to keep and bear arms secured by the Second Amendment. The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The plaintiffs relied on a 2008 decision by the Supreme Court. District of Columbia v. Heller, 554 U.S. 570 (2008). In the Heller case, the Supreme Court ruled that several statutes in the District of Columbia which, taken together, amounted to a total ban on possessing a handgun in the home, violated the Second Amendment. But the only conduct that the Supreme Court clearly located within the Second Amendment right was the possession and carrying of a handgun by an otherwise qualified person within his home for self defense. It carefully noted that “the right secured by the Second Amendment is not unlimited,” and that “historically, the right had never been viewed as a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
The Georgia court concluded that the Supreme Court’s decision in Heller did not address or resolve the question of whether the Georgia statute prohibiting citizens with a concealed weapons license from bringing their weapons onto church property violated the Second Amendment right to bear arms. The court concluded that the Georgia law was constitutionally valid since it was “substantially related to an important governmental objective,” namely, protecting the free exercise of religion. The court observed: “Although the Constitution protects a person’s right to free exercise [of religion] only against governmental intrusion, it is clear that the protection of religious freedom against private bias or coercion is also an important governmental goal. Prohibiting the carrying of firearms in a place of worship bears a substantial relationship to that important goal by protecting attendees from the fear or threat of intimidation or armed attack.” In other words, the court concluded that the constitutional guaranty of religious freedom was better served by prohibiting guns on church premises than by allowing them.
The court clarified that the Georgia statute’s ban against concealed weapons on church property did not extend to church-owned parsonages, and therefore pastors who live in a parsonage are not prohibited from having a weapon on the premises.
The court also clarified that the statute would not bar pastors from carrying or possessing a concealed weapon while in their church office for security reasons. The court observed:
Although the statute generally prohibits persons with valid Georgia Weapons Licenses from carrying a firearm in a place of worship, the statute also provides that the prohibition on carrying in the unauthorized locations … does not apply to … “a license holder who approaches security or management personnel upon arrival and notifies such security or management personnel of the presence of the weapon and explicitly follows the security of management personnel’s direction for removing, securing, storing, or temporarily surrendering such weapon.” O.C.G.A. § 16-11-127(d) (2). As a result, the statute would allow [a pastor] to keep a firearm in his office if he obtained permission from security or management personnel of the church and kept it secured or stored as directed. If management or security personnel at the church, which presumably includes [the pastor] as CEO, did not grant him permission to secure or store a firearm in his office, then that would be at their discretion. Plaintiffs do not argue, however, that they possess a constitutional right to carry a firearm onto private property against the wishes of the owner or controller of the property.
Application. This case is important, for it is the first case to address the constitutionality of state laws barring holders of concealed weapons licenses to bring their weapons onto designated properties, including churches. According to this court, such restrictions do not violate either the First Amendment guaranty of religious freedom, or the Second Amendment right to bear arms. However, the court clarified that such restrictions do not extend to church-owned parsonages.
The court’s analysis of the Second Amendment right to bear arms is interesting. The court noted that the Supreme Court’s 2008 decision in the Heller case, which struck down D.C. statutes prohibiting the possession of firearms in one’s home, was limited to the principle that the Second Amendment protects the right of private citizens to own firearms in their homes for the purpose of self-defense. This narrow ruling did not directly apply to the scenario in this case, which involved a state’s attempt to restrict the carrying of firearms on church property. It also is interesting to note that the court concluded that the Second Amendment right to bear arms was not violated by the Georgia statute since the statute was “substantially related to an important governmental objective”—namely, the protection of church members’ right to freely exercise their religion by alleviating their fear of armed attack. Of course, this conclusion naively assumes that crazed assailants will comply with the law’s requirement that they not bring their weapons onto church property. It also fails to note that many church members’ fear of armed attack will be enhanced by the law’s prohibition of the carrying of weapons on church property by law-abiding members. Ironically, the court concluded that the constitutional guaranty of religious freedom was better served by prohibiting guns on church premises than by allowing them. GeorgiaCarry.Org, Inc. v. Georgia, 2011 WL 240108 (M.D. Ga. 2011).
This Recent Development first appeared in Church Law & Tax Report, May/June 2011.
Key Point. Video recordings made by church surveillance cameras may not be admissible as evidence in criminal prosecutions unless they comply with the conditions specified by state law.
A Georgia court ruled that a video recording of a burglary on church premises was admissible as evidence in the perpetrator's burglary trial.
Many churches have installed video cameras as both a deterrent to crime and a means of identifying persons who engage in criminal behavior. Video recordings may be admissible as evidence in criminal prosecutions, but there are conditions that may apply. A recent case illustrates this important point. A church custodian arrived at work to discover that the front door was damaged and a side window was broken. He immediately called the police. After the investigating officer arrived, she determined that someone had "busted in" the front door with a sharp object in order to gain access to the church. Inside, she observed that the church was in disarray and discovered that the church's safe had been taken outside the church and its door removed. She also found and collected blood droplets that she believed to have come from the perpetrator near broken glass from two interior office doors.
During her investigation, the officer learned that the church had a surveillance camera which monitored the hallway outside of the internal church offices. The camera was attached to a video recorder that was set to begin recording when any of three strategically placed motion sensors were triggered. After watching the videotape, the officer immediately went to arrest a man (the "defendant") depicted on the video whom she had known for 19 years. She found him hiding underneath a mattress in a bedroom of his brother's house. He had a small laceration on the palm of his hand.
The defendant was charged with burglary, and at his trial the prosecutor introduced into evidence both DNA test results and the surveillance videotape that clearly showed the defendant committing the burglary. The defendant was convicted and sentenced to prison. He appealed, claiming that the court should not have admitted the surveillance tape into evidence because the tape did not contain the date and time of the recording. A state law specifies that videotapes created by unmanned cameras shall be admissible in evidence when the court determines, based on competent evidence presented to the court, that such items tend to show reliably the fact or facts for which the items are offered, provided that prior to the admission of such evidence the date and time of such … videotape recording shall be contained on such evidence and such date and time shall be shown to have been made contemporaneously with the events depicted in the … videotape.
The court acknowledged that the surveillance tape "did not contain a date and time in strict accordance with the terms of that statute." However, it pointed out that the same statute provides that "this section shall not be the exclusive method of introduction into evidence of videotapes but shall be supplementary to any other statutes and lawful methods existing in this state." The court noted that prior decisions of the state Supreme Court "have affirmed trial courts' admission of videotapes, in circumstances such as in this case, where even though there are no contemporaneous date and times on the videotapes, there is other evidence of reliability." The court concluded:
The trial court was presented with sufficient evidence from which it could be inferred that the tape reliably depicted the burglary taking place. The church custodian testified that on the morning of the burglary, he unlocked the box containing the videotape in the presence of the investigating officer. The investigating officer personally removed the videotape from the recorder and placed it into evidence. Her investigation subsequently revealed that the videotape contained footage from the day of the burglary as well as the previous day. On the tape, she personally observed the defendant, whom she had known for 19 years, breaking the window inside of the church. The church custodian testified that he had been at the church the previous evening and found the church to be in good repair. Finally, the technician who had installed the security system described how the camera operated and explained that it had been programmed to record for four-minute periods of time after being activated. He concluded after watching the video that the camera had performed properly as it was designed to do …. Under these circumstances, the trial judge did not abuse his discretion by admitting the videotape into evidence and concluding that the absence of a date and time on the tape itself would go to the weight, not the admissibility, of the evidence.
What this means for churches
This case illustrates an important point. Churches that use video cameras for the preservation of evidence should understand that state law may prescribe conditions on the use of video recordings in criminal prosecutions. If your church uses video cameras, be sure to check with an attorney, or your local prosecuting attorney's office, to determine what conditions apply to the use of video recordings in criminal prosecutions in your state. Failure to comply with such conditions may negate the primary purpose of using a video camera in the first place. Holloway v. State, 653 S.E.2d 95 (Ga. App. 2007).
Key point 10-06. A church may be legally responsible on the basis of negligent selection for injuries resulting from the acts of a minister or other worker not involving sexual misconduct.
* A Georgia appeals court ruled that a trial court improperly dismissed a lawsuit brought against a home security company by a woman who had been kidnapped by one of the company’s employees and who had claimed that the company was responsible for its employee’s acts on the basis of negligent hiring since it failed to conduct a criminal records check on the employee when he was hired. A home security company (the “employer”) hired a salesman (the “employee”) to sell home security systems door-to-door. The employer did not perform a background check before hiring the employee, which would have revealed that he had been convicted of burglary and kidnapping in 1979, sentenced to life in prison, and paroled in 1995. In the past, the employer required background checks on all salespersons who entered prospective buyers’ homes. However, this practice was discontinued due to the “tremendous turnover” in those positions.
A woman (the “plaintiff”) went home from work in the early afternoon to pick up medicine for her daughter. As usual, she parked in her garage and entered the house through an unlocked door, leaving the garage door up. While she was straightening up her bedroom, she noticed the employee standing in the doorway. She asked if she could help him. He responded by pulling out a gun and pointing it at her. He then bound her with duct tape, placed her in her own car, and took her to another state. He eventually released the woman when she promised to pay him $6,000.
The plaintiff sued the employer, claiming that it was responsible for its employee’s wrongful acts on the basis of negligent hiring. A trial court granted the employer’s motion for summary judgment, meaning that it concluded that reasonable minds would all agree that the employer had not been negligent and therefore there was no need to waste the court’s time with a trial. The plaintiff appealed.
A state appeals court noted that “the appropriate standard of care in a negligent hiring/retention action is whether the employer knew or should have known the employee was not suited for the particular employment. Stated differently, an employer has a duty to exercise ordinary care not to hire or retain an employee the employer knew or should have known posed a risk of harm to others where it is reasonably foreseeable from the employee’s tendencies or propensities that the employee could cause the type of harm sustained by the plaintiff. Moreover, whether or not an employer’s investigative efforts were sufficient to fulfill its duty of ordinary care is dependent upon the unique facts of each case.”
The court concluded that “we cannot say that the evidence adduced was sufficient to demand a finding as a matter of law that the defendant had exercised due care in screening the employee in question.”
Application. No court, in a published decision, has found a church liable for the sexual misconduct of a volunteer worker or employee as a result of a failure to conduct a criminal records check. But, cases addressing the liability of secular employers for failing to conduct criminal records checks are relevant in assessing how churches will be treated by the courts. The court in this case concluded that there was a sufficient connection between the employer’s failure to conduct a criminal records check on its employee and his kidnapping of the plaintiff to reverse the trial court’s summary judgment in favor of the employer. Note, however, that the reversal of a summary judgment only requires only the slightest evidence. The court was persuaded that the plaintiff had presented “some evidence, however slight, that the employer’s failure to perform a background check on its employee was a proximate contributing cause of her kidnapping.”
Also, note that a failure to conduct a criminal records check will be relevant in assessing an employer’s liability only if such a check would have disclosed a criminal record demonstrating a propensity to commit the type of crime in question. To illustrate, the court referred to a prior case in which a court ruled that summary judgment was appropriate since a background investigation performed on a security guard who was involved in murder of the plaintiff’s son showed that the guard had no record of criminal activity. Kelley v. Baker Protective Services, 401 S.E.2d 585 (Ga. 1991).
In summary, this court concluded that an employer’s failure to conduct criminal records checks on its employees might be viewed by a jury as evidence of negligent hiring. Underberg v. Southern Alarm, Inc., 643 S.E.2d 374 (Ga. App. 2007).
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).
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).
Key point 4-08 . Every state has a child abuse reporting law that requires persons designated as mandatory reporters to report known or reasonably suspected incidents of child abuse. Ministers are mandatory reporters in many states. Some states exempt ministers from reporting child abuse if they learned of the abuse in the course of a conversation protected by the clergy-penitent privilege. Ministers may face criminal and civil liability for failing to report child abuse.
The Georgia Supreme Court ruled that a person who reported suspected child abuse to the authorities could not be sued by the alleged perpetrator after the report was determined to be unfounded.
Many pastors, lay church employees, and volunteers are mandatory reporters of child abuse under state law. Mandatory reporters are legally required to report known and reasonably suspected cases of child abuse to a designated state agency. Often, it is very difficult to know if abuse has occurred. This raises the possibility that abuse in some cases will be reported that in fact never occurred, so long as the reporter had a "reasonable suspicion" that it did.
In a recent case in Georgia, a mother suspected that her two young daughters had been sexually molested by their paternal grandfather after spending a weekend with him. She took the girls to a counselor, who reported the suspected abuse to the state. The prosecutor later announced a "nolle pros" of the case, meaning that a decision had been made not to prosecute (neither innocence nor guilt is to be inferred from such a disposition). The grandfather sued the counselor for filing a false report.
The state supreme court noted that the child abuse reporting law provided "immunity" from civil or criminal liability to anyone who "in good faith" reports child abuse. The court continued,
We conclude that immunity may attach in two ways, either by showing that "reasonable cause" exists or by showing "good faith." Once a reporter has reasonable cause to suspect child abuse has occurred, she must report it or face criminal penalties. The trigger for the duty to report is "reasonable cause to believe," which requires an objective analysis. The relevant question is whether the information available at the time would lead a reasonable person in the position of the reporter to suspect abuse. Once reasonable cause has been established under this standard, a reporter complying with the statutory mandate to make a report is, by definition, operating in good faith. Therefore, if the objective analysis supports the reporter's conclusion that child abuse has occurred, then immunity attaches and there is no need to further examine the reporter's good faith.
On the other hand, if under an objective analysis, the information would not lead a reasonable person to suspect child abuse, the reporter may still have immunity if she made the report in good faith …. Good faith is a subjective standard … a state of mind indicating honesty and lawfulness of purpose; belief that one's conduct is not unconscionable or that known circumstances do not require further investigation …. Thus, the relevant question is whether the reporter honestly believed she had a duty to report. A reporter acting in good faith will be immune even if she is negligent or exercises bad judgment.
The court concluded that the evidence in this case clearly demonstrated that the counselor was acting in good faith when she made the report. In particular, the court noted that the victims were young children who made specific allegations of sexual contact by their grandfather. The "sexually explicit nature of these allegations by such young children raised a concern about the possibility of abuse. We conclude that, as a matter of law, the children's allegations are sufficient to cause a reasonable person to suspect that child abuse has occurred." As a result, the court dismissed the grandfather's lawsuit against the counselor.
The court rejected the grandfather's argument that even if a reporter has reasonable cause to believe that child abuse has occurred, he may be personally liable for reporting the abuse if he did so in bad faith. The court noted that "this interpretation chills the reporting requirement and fails to honor the legislative goal of protecting children by encouraging the reporting of suspected child abuse. It furthermore would require a mandatory reporter to make a detailed investigation before making a report. Such an investigation is contrary to the statutory scheme that places the job of investigation on child welfare authorities and the criminal justice system."
Application . Every state provides limited immunity from liability to persons who report child abuse. According to this court, reporters have immunity from liability if they (1) have a reasonable suspicion that child abuse has occurred, or (2) act in good faith. The counselor in this case satisfied both of these grounds, and so there was no basis for personal liability. Second, the court concluded that "specific allegations" of sexual molestation by young children raise an inference of child abuse that trigger the immunity from liability provided by law. O'Heron v. Blaney, 583 S.E.2d 834 (Ga. 2003).
Key point. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.
A Georgia court ruled that a church treasurer had a legal right to demand that a church's former pastor and former treasurer turn over the church's financial records.
A church removed its pastor and appointed a new church treasurer ("Andy"). When Andy tried to change the signature cards on the church's bank accounts, he discovered that the former pastor's niece and another church member had already attempted to withdraw the money and had succeeded in closing one bank account containing $5,000. He also noted that the church computers with current financial records had been removed and recent financial files were also missing. In addition, all of the furniture, books, tapes, and other items from the bookstore had been removed. Also, there was a balloon note for $400,000 but no record of the money being deposited in any church bank account. Andy later testified that when he took over as treasurer there was no money in any of the church's accounts, the insurance had lapsed, and they had to wait until they took up the weekly offering to pay the bills.
Andy filed a lawsuit in which he asked a court to compel the former pastor and former treasurer to turn over the church's financial records. He relied on a provision in the church bylaws specifying that any member could inspect the books and records of the church for any proper purpose and at any reasonable time upon written demand and under oath stating the purpose. He insisted that as church treasurer, trustee, and member of the executive committee he was responsible for preparing a budget, monitoring income and expenses, and keeping financial records for the church. Nevertheless, despite repeated requests, the former pastor and former treasurer refused to turn over the necessary church financial records.
The former treasurer testified that he had not turned over any tax returns, budgets, audited financial statements, or checking, savings, or investment account records. Also, he had not furnished records of deposits, contributions, or tithes. He said that tithes from the congregation were deposited into the pastor's "executive account" and his salary as well as other staff members' salaries were paid from that account.
A trial court ordered the former pastor and former treasurer to provide a complete financial accounting for the past three years and required them to return any church property in their possession. It concluded that there was "no credible evidence that any religious doctrine prohibited the church from providing the requested records." The court also ruled that the refusal to turn over the records was frivolous and vexatious and it ordered the former pastor and former treasurer to pay attorney fees and costs of $24,657.
The former pastor and former treasurer appealed, claiming that the dispute was ecclesiastical and therefore the first amendment guaranty of religious freedom prevented the civil courts from resolving it. A state appeals court disagreed. It noted that state nonprofit corporation law (under which the church was incorporated) "requires that nonprofit corporations maintain appropriate accounting records in written form or in some form capable of conversion into written form within a reasonable time." Further, state nonprofit corporation law gives members the legal right to inspect and copy these records if the member's demand is made in good faith and for a proper purpose.
The court acknowledged that the statute specifies that "if religious doctrine governing the affairs of a corporation is inconsistent with the provisions of this chapter on the same subject, the religious doctrine shall control to the extent required by the Constitution of the United States or the Constitution of this state or both." However, the court concluded that "there was no religious doctrine of the church that was inconsistent with these statutes. Moreover, the church bylaws specifically give members the right to review financial documents."
What this means for churches
This case is important for two reasons. First, it illustrates that church members are given a broad legal right to inspect church records under the nonprofit corporation laws of many states. This of course assumes that a church is incorporated under such a statute. Further, as was true in this case, church bylaws may provide additional inspection rights. Therefore, even if a church is not incorporated, this does not necessarily mean that members have no right to inspect church records, since such a right may be set forth in the church's bylaws or other governing document. Second, the church's former pastor and former treasurer had to pay nearly $25,000 in attorneys' fees incurred by the new treasurer in asserting his right to inspect records.
Denial of a member's legitimate request to inspect church records, where such a right is clearly given by state law or a church's governing documents, may expose church leaders to similar damages.
Greer v. Davis, 534 S.E.2d 853 (Ga. App. 2000).
Key point 6-03.1. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.
A Georgia court ruled that a member of a nonprofit corporation failed to prove that he had a "proper purpose" for his request to inspect several categories of corporate records, and therefore he had no legal right under the state nonprofit corporation law to inspect the records.
A member of a nonprofit corporation sued the corporation on the basis of mismanagement and a violation of the corporate bylaws. The member asked for permission to inspect "all accounting and corporate records … for the purpose of determining the performance of management and the condition of the corporation." In particular, the member asked for permission to inspect records of all asset accounts, invoices and billing statements, profit and loss statements, tax documents, corporate meeting minutes, and membership lists.
The corporation refused this request, and the member asked a court to order the corporation to comply. The court noted that the Georgia nonprofit corporation law allows members of nonprofit corporations to inspect and copy certain corporate records. The statute divides corporate records into two basic categories. The first category includes eight kinds of records, such as articles of incorporation, bylaws, minutes of meetings, and corporate resolutions. These records are accessible to any member who makes a written request at least five business days before the date the member wishes to inspect and copy such records. The second category includes excerpts of minutes of certain corporate meetings, accounting records of the corporation, and the membership list. Members may inspect and copy the records in the second category only if (1) the member's demand is made in good faith and for a proper purpose that is reasonably relevant to the member's legitimate interest as a member; (2) the member describes with reasonable particularity the purpose and the records the member desires to inspect; (3) the records are directly connected with this purpose; and (4) the records are to be used only for the stated purpose. If a corporation does not allow a member who meets these requirements to inspect and copy records, the member may apply to a court for an order permitting inspection and copying of the requested records.
The court noted that "virtually all" of the documents the member was asking to inspect fell into the second category, and so he had to show that he wanted them for a "proper purpose." The member claimed that he wanted the documents "for the purpose of determining the performance of management and the condition of the corporation." The court concluded, however, that the member "has not sufficiently demonstrated that the documents sought are being sought for a proper purpose." Therefore, it denied the member's request to inspect the corporate records.
What this means for churches
This case illustrates a very important point. Church leaders often wrestle with the question of whether or not to honor requests by members to inspect various kinds of corporate records. In most states, members of churches that are incorporated under the state nonprofit corporation law have a legal right to inspect specified corporate records for a "proper purpose." This case illustrates that this requirement is not a mere technicality that is disregarded by the courts. Members demanding to inspect church records have the burden of establishing a proper purpose for their request. Obviously, deciding whether or not a member has met this burden can be a difficult question in some cases. A local attorney should be consulted if there is any doubt.
Parker v. Clary Lakes Recreation Association, Inc., 2000 WL 426454 (Ga. App. 2000).
A Georgia court ruled that the first amendment guaranty of religious freedom prevented it from resolving a lawsuit brought by a minister challenging the legality of his removal by his church. A pastor was called by a Baptist church in 1987. The church is governed by a constitution and bylaws, which specify that the “pastor shall be called for as long a period of time as mutual satisfaction shall prevail.” In 1994, 46 of the 59 church members who were present at the annual membership meeting voted to terminate the pastor’s employment. Following this meeting, the pastor contacted an attorney who wrote the church claiming that the termination was improper because it did not conform to the rules set forth in the church constitution and bylaws. The attorney claimed that those rules mandated that the personnel committee or the board of deacons recommend the pastor’s discharge to the congregation, which had not been done. In response to this letter, the board of deacons approved the actions of the church membership and recommended that the members vote to reaffirm its previous decision. Accordingly, another membership meeting was called, at which the membership voted to reaffirm its previous termination of the pastor. The pastor was still not satisfied, and filed a lawsuit claiming that he had not been lawfully removed. The church responded by insisting that the termination was proper. It also asserted that there was “just cause” for the pastor’s termination, including his failure to attend to “the individual spiritual and emotional needs of the congregation” and his failure “to minister in a manner consistent with the church’s view of the best method for preaching the Christian Gospel.” A trial court dismissed the case, concluding that it had no jurisdiction pursuant to the first amendment of the United States Constitution since the pastor was asking it to interpret ecclesiastical rules of the church. The court also concluded that the pastor was an “employee at will” and as such had no cause of action against the church for wrongful termination. The pastor appealed, claiming that resolution of this dispute would not constitute an impermissible intrusion by the court into ecclesiastical matters. On the contrary, he insisted that the dispute involved property rights-a permissible category of court inquiry.
A state appeals court affirmed the trial court’s dismissal of the case. It relied largely on two decisions of the United States Supreme Court. In the first, the Supreme Court concluded that the civil courts could not interfere with a church’s decision to remove a minister. Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). The Court concluded that “civil courts are bound to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” The Georgia court concluded that “what is involved here falls within that territory, which must remain foreign to civil tribunals.” In the second case, the Supreme Court concluded that “[f]reedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952). The Georgia court concluded that the trial court “correctly determined that it lacked jurisdiction to consider the matter.”
The court rejected the relevance of two cases cited by the pastor. In the first case, a Georgia court permitted a pastor to sue his church for wrongful termination. Reddick v. Jones, 304 S.E.2d 389 (1983). The court emphasized that the pastor’s “year to year contract” was a valuable legal interest that the courts could protect in the event it was breached by the church. In dismissing the relevance of this earlier case, the court in the present case simply noted that “the pastor had a year-to-year employment contract, whereas in this case no such contract was involved.” In the second case, the Georgia Supreme Court addressed a case in which the pastor of one church filed a complaint to enjoin the bishop of another church “from interfering with his performing his duties and receiving the benefits of his office as pastor” Hickman v. Booker, 200 S.E.2d 279 (1973). The court concluded that “the pastor’s salary was a sufficient, disputed property interest to allow the court to assume jurisdiction.” In rejecting the relevance of this ruling, the court in the present case noted that the pastor’s salary “is only peripheral to the main issue of the case-whether [he] was properly terminated. And the determination of whether [he] was properly fired was not a question properly before the [trial] court.”
Application. This case illustrates the fundamental principle that the civil courts will not resolve disputes involving the legality of a church’s dismissal of a minister. In the Kedroff case (referred to above), the Supreme Court observed:
There are occasions when civil courts must draw lines between the responsibilities of church and state for the disposition or use of property. Even in those cases when the property right follows as an incident from decisions of the church custom or law on ecclesiastical issues, the church rule controls. This under our Constitution necessarily follows in order that there may be free exercise of religion.
The Kedroff decision is important since it specifically holds that alleged violations or interference with “property rights” cannot serve as a basis for civil court review of a church’s decision regarding the qualifications or dismissal of a pastor where “the property right follows as an incident from decisions of the church … on ecclesiastical issues.” The Georgia court recognized this important principle by noting that the pastor’s alleged “property right” (his salary) “is only peripheral to the main issue of the case-whether [he] was properly terminated.”
A few courts have been willing to resolve clergy termination disputes if a civil, contract, or property right was allegedly violated that was independent of (rather than incident to) the disciplinary process and that required no inquiry into religious doctrine or polity. Few disputes satisfy these strict conditions. The key point is this: the alleged civil, contract, or property right must be independent of and not a consequence of an underlying ecclesiastical dispute involving ecclesiastical doctrine, polity, or discipline. As the Supreme Court itself has observed, there is no basis for civil court review if the alleged property right that was violated by a church’s dismissal of a minister is “an incident from decisions of the church … on ecclesiastical issues.” Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1 (1928).
Further, a number of courts have noted that the mere assertion that a civil, contract, or property right has been violated is not enough to warrant civil court intervention, for this often can be a spurious effort to involve a court in an essentially ecclesiastical controversy. Bledsoe v. Morningside Baptist Church, 501 S.E.2d 292 (Ga. App. 1998). [Termination, Prayer on Public Property]
© Copyright 1999 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 m47 c0299
• Key point. It is the view of some courts that members of a “congregational” church have no legal right to sue their church for exclusion from membership.
The Supreme Court of Georgia ruled that members of a “congregational” church could not challenge their expulsion in civil court since membership in such a church is not a property right. A church dismissed certain members, and these individuals later sued the church’s board members claiming that their dismissal was improper. The court, in dismissing the lawsuit, observed:
[C]ivil courts have no jurisdiction to inquire into and to control the acts of the governing authority of a religious organization undertaken with reference to its internal affairs. It is undisputed that [the church] has a congregational form of government. Membership in a congregational church is not a property right. Since membership in [such a church] is not a property right, the validity of the exclusion of the members of [the church] from membership … is conclusive upon the civil courts, whether in the opinion of the judges of those courts, the decision appears to be right or wrong. Anderson v. Dowd, 485 S.E.2d 764 (Ga. 1997). [ Discipline and Dismissal of Church Members]
© Copyright 1998 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: m19 m16 c0298
• Key point. In evaluating whether an allegation of child abuse is legitimate, church leaders can benefit from the approach taken by the civil courts in criminal cases.
A Georgia court upheld the conviction of a man for child abuse, and its decision will be useful to church leaders in evaluating allegations of child abuse. Church leaders occasionally are confronted with an allegation of child abuse. For example, a parent claims that a youth worker molested her minor child. The alleged offender often denies any wrongdoing, and this places church leaders in a difficult position of having to determine the truthfulness of the accusation. The civil courts wrestle with the same issue in criminal cases involving the guilt or innocence of persons accused of child abuse. A recent case provides some helpful guidance. A 7—year—old girl alleged that a man molested her. The man was prosecuted for criminal child abuse, and he insisted at trial that he was innocent and that the girl had “made up” the allegations. A trial court convicted the man, and a state appeals court upheld this verdict. The court concluded that the girl’s testimony was reliable on the basis of the following ten factors:
(1) the conditions under which the statement was made; (2) the statement’s spontaneity; (3) the age of the child; (4) the child’s demeanor; (5) the child’s physical and mental condition; (6) the presence or absence of any threats or promises of benefit; (7) any involvement of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or others either before or during the giving of the statement; and (10) the consistency between repeated out—of—court statements.
Application. The court’s checklist of factors to consider in evaluating the reliability of a child’s accusations or molestation will be helpful to church leaders in responding to such accusations. Of course, if there is reasonable cause to believe that a child has been abused, then in many states a pastor or other church leader who learns of the allegation will be under a legal duty to report it to civil authorities. Heard v. State, 471 S.E.2d 22 (Ga. App. 1996). [Failure to Report Child Abuse]
© Copyright 1997, 1998 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: m10 c0597
• Key Point. Churches are not necessarily responsible for the theft of coats from unattended coat racks or rooms.
A Georgia court ruled that a private club was not legally responsible for the theft of a womans coat. This ruling is of direct relevance to every church that has coat racks or rooms for the convenience of their members and guests. The court, in concluding that the organization was not responsible for the loss of the womans coat, observed:
[S]he had an opportunity to avoid any risk attributable to an unattended cloakroom …. [O]nce she arrived at the club and saw the unattended cloakroom … she knew, or should have known, that no attendant was provided. She left her valuable coat in the cloakroom knowing that it was unattended; she assumed the risk of theft. She therefore cannot recover for the consequences of that risk.
Application. Most churches have a room where members and guests can store coats during services and other activities. Occasionally, coats are stolen or removed by accident. This case illustrates that churches are not necessarily legally responsible for the loss of a coat from an unattended coat room-since persons who leave a coat in an unattended room “assume the risk” of theft. Athens Country Club, Inc. v. Jackson, 481 S.E.2d 904 (Ga. App. 1997). [Premises Liability]
© Copyright 1997, 1998 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: m86 c0497
• Key point. Churches may be relieved from liability for their negligence if an injury results from an “intervening cause.”
A Georgia court ruled that a public school was not legally responsible for the murder of a child who was released by school officials prior to the end of the school day. While the case involved a school, it will be relevant to churches as well. The school had a written policy addressing early dismissals of students. The policy specified that no student could be released prior to the end of the school day without the consent of a parent. On the day of the murder, the school received two calls from a person with a male voice requesting that the victim be released early. The caller was informed that this was not possible without the consent of a parent. A short time later the school received a call from a person identifying herself as the victim’s mother. This person requested that the victim be released early due to a “family emergency.” A school secretary authorized the early release of the victim based on this call, and on her way home the victim was abducted and murdered. The victim’s parents sued the school , claiming that it was responsible for their daughter’s death as a result of its negligent supervision. A state appeals court ruled that the school was not liable for the girl’s death. The court conceded that the school may have been negligent, but it concluded that this negligence was not the cause of the girl’s death. Rather, the death was caused by an unforeseeable “intervening cause”-the criminal activity of an outsider-which relieved the school from liability. The court observed: “Generally, an intervening criminal act of a third party, without which the injury would not have occurred, will also be treated as the [cause] of the injury thus breaking the causal connection between the defendant’s negligence and the injury unless the criminal act was a reasonably foreseeable consequence of the defendant’s conduct.” The court noted that (1) school officials had no reason to suspect that the murderer posed a risk of harm to the victim; (2) school officials were aware of no threats ever directed to the victim by the murderer or anyone else; (3) no student had ever before been abducted or assaulted after being released before the end of the school day; and (4) the victim expressed no concern for her safety. Based on this evidence, the court concluded that “it was not foreseeable that [the victim] would be murdered after being released from school early.” The court concluded that even if the school had been negligent in properly supervising the victim, its negligence “did nothing more than give rise to the occasion which made her injuries possible.” The murder was caused by the intervening criminal act.
Application. Many churches have released children from organized activities prior to the dismissal of an adult worship service. This case illustrates two important points. First, such “early releases” can create significant risks of harm to minors which may result in a lawsuit charging the church with negligent supervision. Second, while in many cases the church will be liable for injuries occurring under such circumstances, this is not always the case. For example, a church may not be liable for injuries caused by an unforeseeable intervening criminal act. Perkins v. Morgan County School District, 476 S.E.2d 592 (Ga. App. 1996). [Negligence as a Basis for Liability]
© Copyright 1997, 1998 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: m58 m65 c0397