Indiana Supreme Court Says Church Autonomy Doctrine Bars Man’s Lawsuit

Court says a Catholic school’s choice to fire a man who married another man is a matter of church autonomy.

Bio

State: Indiana
Categories: Employment Practices

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

In 2006, a man (the “Plaintiff”) began teaching social studies at a parochial school (the “Cathedral”) under a contract renewed annually.

In 2017, he married another man who teaches at a seminary prep school (the “School.”)

The Cathedral and School operated within the same archdiocese.

In mid-2019, the archdiocese ordered that both men be terminated because of their same-sex marriage.

The School declined the archdiocese’s order on the basis that the men were in a “civilly-recognized same sex marriage.”

The archdiocese then revoked the School’s status as a Catholic institution in accordance with canonical requirements.

The School no longer could use a name incorporating the word “Catholic,” and lost recognition as a Catholic institution by the archdiocese. This included exclusion from The Official Catholic Directory.

However, the Cathedral obeyed the archdiocese’s order and fired the Plaintiff.

The Cathedral president told the Plaintiff the decision to fire him was based entirely on the fact that “the Archbishop directed that we [Cathedral] can’t have someone with a public same-sex marriage here and remain Catholic.”

In an open letter to the “Cathedral family,” the Cathedral noted its 100-year history.

Based upon 22 months of discussions with the archdiocese, the Cathedral said the archbishop was clear that, by retaining the Plaintiff, the Cathedral would forfeit its Catholic identity, given the Plaintiff’s decision to live in contradiction to Catholic teachings on marriage.

The letter continued: “We are committed to educating our students in the tenets of the Catholic faith.” It stated further that “to remain a Catholic School, Cathedral must follow the direct guidance given to us by the Archbishop and separate from the teacher.”

The Plaintiff sued the archdiocese, and a trial court dismissed the lawsuit on First Amendment grounds. The Plaintiff appealed.

Church autonomy doctrine barred the claim from civil court

The Indiana Supreme Court agreed with the trial court.

It concluded that the plaintiff’s lawsuit was barred by the church autonomy doctrine.

It noted that this doctrine “deals with a church’s First Amendment right to autonomy in making decisions regarding [its] own internal affairs,” including matters of faith, doctrine, and internal governance.

The Court continued:

The archdiocese’s decision whether a school maintains its Catholic identity is an internal matter that concerns both church policy and administration.

The gist of plaintiff’s claims is communication between the archbishop and Cathedral, a Catholic school, over a matter involving church discipline and doctrine… . Whether and when the archdiocese would continue to recognize Cathedral as Catholic is at the heart of the communication… . The directive was … a choice the archdiocese gave Cathedral.

It could either retain its recognition as a Catholic school by following the archdiocese’s instruction on what was required to be recognized as a Catholic school or forfeit continued recognition.

This choice reflects the archdiocese’s authority to declare which schools are Catholic … .

The Court quoted with approval from its 1888 ruling in Dwenger v. Geary, 14 N.E. 903 (1888): “No power save that of the church can rightfully declare who is a Catholic. The question is purely one of church government and discipline, and must be determined by the proper ecclesiastical authorities.”

What this means for churches

A church has two principal defenses when terminating employees for violating the church’s employment standards.

The first is the “ministerial exception” doctrine. It pertains to employment disputes between churches and minister-employees.

It prohibits courts from resolving such disputes, according to numerous court rulings.

The second is the “church autonomy” doctrine. The Indiana Supreme Court used this doctrine as the basis of its decision in this case.

The church autonomy doctrine generally bars civil courts from resolving internal church disputes over matters of “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.”

As the United States Supreme Court ruled in 1871:

The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. Watson v. Jones, 80 U.S. 679, 729 (1871).

Several courts have cautioned that the immunity provided by the church autonomy doctrine is not absolute. It does not apply to purely secular decisions, even when made by churches.

Payne-Elliott v. Roman Catholic Archdiocese, 193 N.E.3d 1009 (Ind. 2022)

Legal Developments

Appeals Court Refused to Dismiss a Former Employee’s Wrongful Termination Lawsuit

The trial court failed to conduct a “fact-sensitive and claim specific” analysis to determine if the First Amendment bars the former employee’s claims against a Roman Catholic archdiocese.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Discrimination, Employment Practices, First Amendment

Key point 8-12.01. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. Religious organizations are exempt from the ban on religious discrimination but not from the other prohibited forms of discrimination.

Key point 8-21.02. Many state civil rights laws prohibit employers with a specified number of employees from discriminating in any employment decision on the basis of the sexual orientation of an employee or applicant for employment. Such laws generally exempt religious organizations.

An Indiana court refused to dismiss a former employee’s wrongful termination lawsuit against a Roman Catholic archdiocese on the ground that the trial court had yet to undertake a “fact-sensitive and claim specific” analysis that must precede analysis of whether the First Amendment bars the plaintiff’s claims against the archdiocese.

Background

A high school (the “school”) located in Indianapolis is affiliated with the Roman Catholic Archdiocese of Indianapolis. In 2006, the school extended a teaching contract to a language and social studies teacher (the “plaintiff”).

Over the ensuing decade, the school renewed the plaintiff’s teaching contract annually. In 2017, the plaintiff married his same-sex partner, who is a teacher at a Jesuit preparatory school (the “preparatory school”). The school last renewed the plaintiff’s teaching contract on May 21, 2019, for the 2019–2020 academic year.

On May 24, 2019, the school’s president informed the plaintiff that the archbishop of the archdiocese would soon require the school to “adopt and enforce morals clause language used in teacher contracts at Archdiocesan schools” in order for the school to retain its status as a recognized Catholic institution. The archdiocese issued the same directive to both the school and the preparatory school. The morals clause language provides as follows:

The Archdiocese recognizes that many teachers who contribute positively to the mission of the Church in forming young people through our Catholic schools are not practicing Catholics. For faculty members of other faith traditions, there remains an expectation that, regardless of their personal religious affiliations and beliefs, they will become knowledgeable of Catholic Church teachings, will be credible witnesses of the Catholic faith and will be models of Christian values. Catholic schools are ministries of the Catholic Church, and faculty members are vital to sharing the mission of the Church. Teachers are expected to be role models and are expressly charged with leading their students toward Christian maturity and with teaching the word of God. As role models for students, the personal conduct of every teacher and staff member must convey and be supportive of the teachings of the Catholic Church.

Determining whether a faculty member is conducting him/herself in accordance with the teachings of the Catholic Church is an internal Church/School matter and is at the discretion of the pastor, administrator, and/or Archbishop.

In a letter dated June 20, 2019, the preparatory school declined to terminate the employment of the plaintiff’s spouse. On June 21, 2019, the Archbishop decreed that the preparatory school could no longer designate itself as “Catholic”; the archdiocese no longer recognized the preparatory school as a Catholic institution; and the preparatory school would be omitted from The Official Catholic Directory.

On June 23, 2019, the school terminated the plaintiff’s teaching contract. That same day, the school issued a letter to parents, teachers, and staff that outlined the situation.

The plaintiff: archdiocese interfered with his contractual and employment relationship

On July 10, 2019, the plaintiff filed a complaint alleging that the archdiocese intentionally interfered with his contractual relationship and with his employment relationship with the school.

In his complaint, the plaintiff alleged that: (1) he is a homosexual male, who has been in a same-sex marriage since 2017; (2) he was under a teaching contract at the school in the 2019–2020 calendar year; (3) the archdiocese issued a directive, wherein the school was required to adopt and enforce morals clause language used in teacher contracts at archdiocese-recognized schools, was required to discontinue its employment of any teacher in a public, same-sex marriage, and could forfeit being formally recognized as a Catholic school in the archdiocese by failing to comply with the directive; and (4) the school subsequently terminated the plaintiff’s employment.

On May 7, 2021, the trial court dismissed the plaintiff’s lawsuit on the ground that the First Amendment guarantee of religious freedom deprived it of jurisdiction to adjudicate his claims.

The plaintiff promptly appealed, claiming that the trial court erred in dismissing his case because “[his] claims do not implicate internal church governance, require the courts to resolve an ecclesiastical controversy, or otherwise excessively entangle the courts with religion.” The archdiocese countered that, in issuing the directive to the school, it “act[ed] in accordance with ecclesiastical directive[,]” deriving from canon law, which courts cannot review or question.

The appeals court began its opinion by noting:

[T]he First Amendment to the United States Constitution . . . requires civil courts to refrain from interfering in matters of church discipline, faith, practice, and religious law. Thus, civil courts are precluded from resolving disputes involving churches if “resolution of the disputes cannot be made without extensive inquiry . . . into religious law and polity. . . .” Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). The basic law in Indiana is that courts will not interfere with the internal affairs of a private organization unless a personal liberty or property right is jeopardized. “Thus, the articles of incorporation and by-laws of a not-for-profit corporation are generally considered to be a contract between the corporation and its members and among the members themselves.”

We have held that “personnel decisions are protected from civil court interference where review by the civil courts would require the courts to interpret and apply religious doctrine or ecclesiastical law. Ecclesiastical matters include “a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.”

But the court noted that the First Amendment does not prohibit courts from opening their doors to religious organizations. Instead, “a court can apply neutral principles of law to churches without violating the First Amendment. The First Amendment only prohibits the court from determining underlying questions of religious doctrine and practice.”

The court concluded that the trial court erred in dismissing the plaintiff’s claim. It noted that under the “church autonomy doctrine” churches have a First Amendment right to autonomy “in making decisions regarding their own internal affairs including matters of faith, doctrine, and internal governance.” But the First Amendment “does not immunize every legal claim against a religious institution and its members. The analysis in each case is fact-sensitive and claim specific, requiring an assessment of every issue raised in terms of doctrinal and administrative intrusion and entanglement.”

The court concluded that in this case the parties had yet to undertake the requisite “fact-sensitive and claim specific” analysis that must precede analysis of whether the First Amendment bars the plaintiff’s claims against the archdiocese.

What this means for churches

The court concluded that while it was barred by the “church autonomy doctrine” from adjudicating matters pertaining to a church’s internal affairs including matters of faith, doctrine, and internal governance, such a result was not proper without a “fact-sensitive and claim specific analysis requiring an assessment of every issue raised in terms of doctrinal and administrative intrusion and entanglement.”

Since the trial court had neglected to perform such an analysis, its dismissal of the plaintiff’s claims had to be reversed. Note that the court’s decision was based on a technicality, and not the merits of the archdiocese’s legal defenses. The case was remanded back to the trial court for a “fact-sensitive and claim specific analysis requiring an assessment of every issue raised in terms of doctrinal and administrative intrusion and entanglement.” The results of such an analysis may well result in a dismissal of the plaintiff’s claims.

There is one additional aspect of this case that deserves consideration. The plaintiff brought the following two claims against the archdiocese:

intentional interference with a contract, and

intentional interference with an employment relationship

These bases of church liability were addressed in a 2021 case in Pennsylvania that was discussed in the Legal Development on Tracy v. O’Bell, 268 A.3d 405 (Pa. App. 2021).

Payne-Elliott v. Roman Catholic Archdiocese, 180 N.E.3d 311 (Ind. App. 2021)

Legal Developments

Landowner Denied a Zoning Variance for the Creation of a Shooting Range Near a Church

A local pastor and neighboring landowners expressed concerns over noise and safety.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Zoning

An Indiana court ruled that a county zoning board acted properly in denying a landowner’s application for a zoning variance allowing him to operate a shooting range on his property due in part to the offensive noise it would cause to a nearby church.

Background

A landowner (the “plaintiff”) owned property in a low-density residential (“R-2”) zoning district. The land around the plaintiff’s property contains single-family dwellings, farmland, woods, a museum, and a church.

The plaintiff wished to establish and operate a shooting range on his property, which was to consist of an indoor classroom and an outdoor shooting range. The property was not zoned for this type of use.

In 2019, he petitioned the County Advisory Board of Zoning Appeals (the “board”) for a special zoning variance. After a hearing, the board denied the plaintiff’s petition for a variance, and a trial court denied his petition for judicial review.

The board’s criteria for evaluating an exception

The plaintiff claimed that the board and trial court erred in failing to evaluate the board’s denial of his petition in light of the Second Amendment’s right to bear arms.

The county zoning ordinance (the ”ordinance”) defines a special variance or exception as a “use designated as being permitted within a district provided it complies with all development standards of that district and satisfies the criteria, which the Board of Zoning Appeals utilizes when reviewing the application for special exception approval.” Section 501(B) details those criteria and provides as follows:

A proposed exception or use can only be granted by the board upon an affirmative finding on the following criteria:

The proposed exception or use will not be injurious to, or alter the normal and orderly development of, permitted uses of property within the general Vicinity;
The proposed exception or use is serviced by adequate access roads, ingress and egress points, and traffic flow and control mechanisms;
The establishment, maintenance, or operation of the proposed exception or use will not be injurious to the public health, safety, or general welfare; and
The proposed exception or use is not inconsistent with the Comprehensive Plan.

Petition and letters opposing the variance

On February 25, 2020, the board held a meeting at which it addressed the shooting range. Prior to the hearing, the County Department of Community Development issued a staff report that was in favor of approving the plaintiff’s request.

However, a petition opposing the special variance was signed by 93 persons identified as “citizens of the area impacted by the application.”

Moreover, the pastor of a nearby church wrote a letter expressing his concerns that his church would likely be located in the direction of the shooting range. He said the noise from the range would be disruptive to church events and ministry programs to the point that church members would be deterred from hosting or attending events at the church.

Finally, the board received letters from 16 nearby landowners opposed to the range. The letters expressed concerns about noise, safety, and property values. Separately, 5 persons spoke in favor of the range.

After the board voted to deny the plaintiff’s request, he petitioned for judicial review of the board’s decision.

On March 4, 2021, the trial court denied the plaintiff’s petition for judicial review, concluding, in part, as follows:

There is additional evidence in the Record indicating that Petitioner’s proposed shooting range would be operating in the direction of a neighbor’s home located approximately 600 feet away and in the direction of a local church. There is substantial evidence supporting the Board’s finding that operation of a commercial shooting range in a populated residential area presents legitimate threats to public safety and general welfare.

The trial court added:

At the very least, we conclude that the Board did not abuse its discretion in determining that [the plaintiff] had failed to prove that the proposed exception or use would not be injurious to, or alter the normal and orderly development of, permitted uses of property within the general vicinity. . . .

Several neighbors submitted written statements for and against Plaintiff’s request. . . .

[The pastor] expressed his concern that the church would likely be located in the direction of the shooting range. . . and that the noise from the range would be disruptive to church events and ministry programs to the point that church members would be deterred from hosting or attending events at the church.

What this means for churches

Church leaders should be alert to zoning developments in their immediate vicinity and be prepared to attend zoning board hearings to voice dissent to actions that would negatively impact the use and enjoyment of church property. A failure to do so may compromise a church’s right to dissent in the future.

Churches should also be aware of how their own activities could constitute a nuisance. For example, a church that conducts lengthy revival meetings with shouting and singing could be found guilty of permitting a nuisance.

On the other hand, there have been cases where the court determined that the playing of church bells did not constitute a nuisance—despite complaints from neighbors. For more on this topic, see the “Nuisance” section in the Legal Library.

Michaels v. Huntington County, 176 N.E.3d 585 (Ind. App. 2021)

Legal Developments

Former School Counselor’s Discrimination Claims Barred by Ministerial Exception

A woman fired because of her same-sex marriage could not pursue remedies against a Catholic school under federal and state laws, court holds.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Employment Practices, Ministerial Exception

Key point 8-10.01. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

An Indiana federal court ruled that the ministerial exception barred it from resolving the discrimination claims of a school counselor who was fired from a Catholic school for entering into a same-sex marriage.

The plaintiff’s termination

A woman (the “plaintiff”) worked for a private Catholic school (the “school”) in Indianapolis, Indiana, for nearly 40 years. After the school learned of her same-sex marriage, it declined to renew her employment contract on the grounds that her marriage violated Catholic teachings.

At the time of her termination, the plaintiff worked as Co-Director of Guidance Counseling. The plaintiff sued the school and the Roman Catholic Archdiocese of Indianapolis. She alleged discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act of 1964, and interference with an employment relationship under state law.

The school filed a “motion for judgment on the pleadings,” asking the trial court to dismiss all of the plaintiff’s claims on the ground that she was a minister for purposes of the “ministerial exception.” The ministerial exception—a legal doctrine recognized by the US Supreme Court that is based upon the First Amendment’s religion clauses—generally bars the civil courts from resolving employment disputes between churches and ministers.

The trial court denied the school’s request. The school appealed, but a federal court affirmed the lower court’s ruling, allowing the case to proceed.

The school subsequently sought a “motion for summary judgment” in its favor, again arguing the ministerial exception applied. This time the federal court granted the motion. The decision provides churches and church-run schools with further insights into how courts continue to interpret and apply the doctrine.

Background: Understanding the plaintiff’s employment and her roles

The school operates “under the auspices of the Roman Catholic Archdiocese of Indianapolis.” According to the school’s mission statement, it pledges to “provide . . . an educational opportunity which seeks to form Christian leaders in body, mind, and spirit.” The school’s purpose is to “support and otherwise further the mission and purposes of” the archdiocese.

The court recounted the progression of the plaintiff’s employment and the school’s communications throughout her tenure.

The plaintiff’s employment

The plaintiff began working at the school during the 1978–1979 school year, and with the exception of the 1981–1982 school year (when she completed a master’s degree in music education), she worked there continuously until her termination in 2019.

She held several positions during her time at the school, including New Testament teacher, Choral Director, Fine Arts Chair, Guidance Counselor, and Co-Director of Guidance. She taught New Testament from 1982 to 1989.

In 1985, the school’s chaplain told the plaintiff that she must apply for catechesis certification in order to continue teaching religion, so she applied to become a catechist. Her application was approved, but it expired in 1990 and she never renewed it.

From 1988 to 1998, the plaintiff served as Choral Director, a role which required her to prepare students for the music used during the school’s monthly Mass.

In 1997, the plaintiff became a guidance counselor, a position she held for 10 years until she assumed the role of Co-Director of Guidance in 2007. She served as Co-Director of Guidance for 12 years until her termination in 2019.

Role as guidance counselor

Teachers and guidance counselors at the school are generally employed pursuant to one-year contracts. When this dispute arose, the plaintiff was employed under a “School Guidance Counselor Ministry Contract” and accompanying “Archdiocese of Indianapolis Ministry Description.”

According to the contract, the plaintiff agreed that she would be in default if she breached any duty, which included “relationships that are contrary to a valid marriage as seen through the eyes of the Catholic Church.” The Catholic Church defines marriage as a covenant “by which a man and a woman form with each other an intimate communion of life and love” (Catechism of the Catholic Church § 1660).

The contract also provided that the plaintiff “acknowledge[d] receipt of the ministry description that is attached to this contract and agree[d] to fulfill the duties and responsibilities listed in the ministry description.”

The ministry description identifies a guidance counselor as a “minister of the faith” who will “collaborate with parents and fellow professional educators to foster the spiritual, academic, social, and emotional growth of the children entrusted in his/her care.” The ministry description further specified:

As role models for students, the personal conduct of every school guidance counselor, teacher, administrator, and staff member, both at school and away from school, must convey and be supportive of the teachings of the Catholic Church.

The first “Role” identified in the ministry description is that the guidance counselor “Facilitates Faith Formation,” which included the following responsibilities:

“Communicates the Catholic faith to students and families through implementation of the school’s guidance curriculum, academic course planning, college and career planning, administration of the school’s academic programs, and by offering direct support to individual students and families in efforts to foster the integration of faith, culture, and life.”

“Prays with and for students, families, and colleagues and their intentions. Participates in and celebrates liturgies and prayer services as appropriate.”

“Teaches and celebrates Catholic traditions and all observances in the Liturgical Year.”

“Models the example of Jesus, the Master Teacher, in what He taught, how He lived, and how He treated others.”

“Conveys the Church’s message and carries out its mission by modeling a Christ-centered life.”

“Participates in religious instruction and Catholic formation, including Christian services, offered at the school.”

Guidance counselors were also expected to “use techniques and methods that foster a Christ-centered atmosphere”; “participate in spiritual retreats, days of reflection, and spiritual formation programs”; “proactively identif[y] and address physical, social, emotional, and spiritual needs of individuals and of the community of learners”; and “display Gospel values.”

The guidance department is also the only department whose staff members meet with every student individually throughout the year.

Role as Co-Director of Guidance

In her role as a guidance counselor and Co-Director of Guidance, the plaintiff attended monthly Masses, where she received communion, sang with the congregation, and also communicated guidance to other staff members regarding how to prepare students of different faiths for the school’s Catholic liturgy.

In addition to attending monthly Masses at the school, the plaintiff attended “Days of Reflection.” The school’s principal explained that these events, which occur before each school year, are “designed specifically for [the school’s] faculty and have a very direct, intentional focus on [the] Catholic mission and how each [faculty member] is called to live out that mission in [their] specific roles.”

The principal further explained that these gatherings are required only for the small group of faculty members “who are impacting kids in their spiritual life on a day-to-day basis.” This included guidance counselors.

At these Days of Reflection, the principal delivers a “call-and-response Commissioning Prayer” which “exhorts” the faculty members to embrace the Catholic ministry at the school. In that prayer, the faculty state that they “accept the responsibilities of [their] ministry”; “promise to share [their] faith with others”; and “promise to form youth and support families in the faith by following the example of our Master Teacher, Jesus Christ.”

At the end of the prayer, the leader states: “I hereby commission you to faithfully and joyfully serve as ministers of the faith in the Catholic schools of the Archdiocese of Indianapolis.”

Prayer is a regular occurrence at the school. Every morning different members of the school community would deliver a morning prayer over the school PA system. The plaintiff delivered the morning prayer on more than one occasion, as did several other individuals, including the principal, the chaplain, the campus minister, and students. While the plaintiff did not otherwise lead prayer or pray with students as part of her regular duties as guidance counselor or Co-Director of Guidance, other guidance counselors testified that prayer with students is a regular part of their job.

Applying the ministerial exception

In granting the school’s motion for summary judgment, the Indiana federal court analyzed the doctrine of the ministerial exception.

The First Amendment to the United States Constitution provides, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two “religion clauses” ensure that, among other things, religious institutions are free “to decide matters of ‘faith and doctrine’ without government interference,” said the Indiana court, quoting the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012).

The federal court noted this quote from a 2020 Supreme Court decision in Our Lady of Guadalupe:

This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles. Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

The Indiana federal court said the ministerial exception dictates that “courts are bound to stay out of employment disputes involving those holding certain important positions within churches and other religious institutions,” again quoting the Supreme Court’s decision in Our Lady of Guadalupe.

The court concluded that the plaintiff’s position as Co-Director of Guidance fell within the ministerial exception:

To begin, religious instruction and formation are central to [the school’s] philosophy and mission, and [the plaintiff’s] employment documents “specified in no uncertain terms” that [the school] expected her to perform a variety of religious duties and to help carry out the school’s mission. . . . While [the school’s] characterization of the role is not dispositive, “the school[’s] definition and explanation of the role is important. . . .”

The School Guidance Counselor Ministry Description designated a guidance counselor as a “minister of the faith” and charged her with “foster[ing] the spiritual . . . growth” of her students. The ministry description stated that “Catholic schools are ministries of the Catholic Church, and school guidance counselors are vital ministers sharing the mission of the Church. School guidance counselors are expected to be role models and are expressly charged with leading students toward Christian maturity and with teaching the Word of God.” The ministry description also identified “Facilitates Faith Formation” as the guidance counselor’s first “Role,” which required communicating the Catholic faith to students, praying with and for members of the [school] community, teaching and celebrating Catholic traditions, modeling the example of Jesus, conveying the Church’s message, and participating in religious instruction and Catholic formation. Like the employee in Hosanna-Tabor, [the plaintiff] was “expressly charged”. . . with “leading students toward Christian maturity and with teaching the Word of God.”

The court noted that the plaintiff downplayed the religious nature of her role, and highlighted her secular duties, such as scheduling students for classes, helping students with college applications, providing SAT and ACT test prep tools, administering AP exams, and offering career guidance. She also testified that she did not pray with her students as part of her regular duties as guidance counselor or Co-Director of Guidance, though she did deliver the morning prayer on more than one occasion.

The court then stated:

[T]hat the plaintiff characterizes her work as a guidance counselor in purely secular terms does not change the result because it would be inappropriate for this court to draw a distinction between secular and religious guidance offered by a guidance counselor at a Catholic school. . . . Here, what qualifies as secular or religious guidance in the context of a Catholic high school is exceedingly difficult to identify, and “the purpose of the ministerial exception is to allow religious employers the freedom to hire and fire those with the ability to shape the practice of their faith.”

The court concluded that the ministerial exception barred all of the plaintiff’s claims.

What this means for churches

In the 2012 Hosanna-Tabor case, the Supreme Court unanimously affirmed the ministerial exception, but it declined to define the term “minister.” That is understandable, since it would be difficult to fashion a definition that would apply in all cases. The Supreme Court left the definition of this essential term to other courts in future cases.

The court in this case concluded that the ministerial exception applied to a non-ordained guidance counselor in a Catholic parochial school, noting that “[a]s a general rule, if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered ‘clergy,’” quoting Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164 (4th Cir. 1985). This is a broad definition extending beyond formal ordained status.

The court stressed that “the purpose of the ministerial exception is to allow religious employers the freedom to hire and fire those with the ability to shape the practice of their faith.”

Go Deeper with Ministerial Exception and More

Turn to attorney Frank Sommerville’s series on employment issues to learn how to properly apply the ministerial exception and create strong job descriptions.

One other aspect of this case merits attention. The court placed great weight on the plaintiff’s job description. The importance of job descriptions in ministerial exception cases cannot be understated.

Churches should review job descriptions, especially for non-ordained staff, to see if employees who might meet the definition of “minister” for purposes of the ministerial exception have job descriptions that describe and stress their religious functions.

Caution. Before dismissing someone for violating the church’s moral teachings, leaders should answer the five questions found in the “Discrimination Based on Religion or Morals” section of the Legal Library. This section also includes tips and case studies pertinent to this topic.

Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., 553 F. Supp. 3d 616 (S.D. Ind. 2021)

Legal Developments

Employee in Same-Sex Civil Union Sues Religious School

The “church autonomy doctrine” did not bar the plaintiff’s claims of discrimination, says court.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Employment Practices

Update. After this decision, the religious school sought a “motion for summary judgment” in its favor, again arguing the ministerial exception applied. This time the federal court granted the motion, ruling that the ministerial exception barred it from resolving the former employee’s discrimination claims. Read Richard Hammar’s full analyis of this ruling and what it means for churches and church-run schools.

Key Point 8-12.01 Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. Religious organizations are exempt from the ban on religious discrimination, but not from the other prohibited forms of discrimination.

A federal court in Indiana ruled that a female counselor at a Catholic school whose employment was terminated because of her civil union with another woman could sue the school for discrimination so long as her position was not “of substantial religious importance.”

Background

A Catholic school did not renew the employment contract of its Co-Director of Guidance Counseling (the “plaintiff”) based on her civil union with another woman in violation of the Catholic Church’s moral teachings.

The plaintiff had worked for the school and Archdiocese for 39 years and held several positions, including choral director and religion, music, and drama teacher. She also served as a guidance counselor from 1998 until 2007, and as Co-Director of Guidance Counseling from 2007 until her termination in 2019. In 2017, the Archdiocese and school adopted a “School Guidance Counselor Ministry Contract” and an “Archdiocese Ministry Description” for school guidance counselors.

Quoting from the job description, the court said:

The job description specified that “[a]s role models for students, the personal conduct of every school guidance counselor . . . must convey and be supportive of the teachings of the Catholic Church,” which includes “the belief that all persons are called to respect human sexuality and its expression in the Sacrament of Marriage as a sign of God’s love and fidelity to His Church.”

The court stated that “[a]n employee would be in default of her contract if she violated the Church’s teachings on marriage.”

Quoting directly from the contract, the court said:

“The School Guidance Counselor shall be deemed to be in default under this contract in the event of any breach of duty hereunder, including, but not limited to . . . [r]elationships that are contrary to a valid marriage as seen through the eyes of the Catholic Church; and . . . any personal conduct or lifestyle at variance with the policies of the Archdiocese or the moral or religious teachings of the Roman Catholic Church.”

Additionally, as pointed out by the court, the Code of Canon Law of the Catholic Church instructs that marriage is a “covenant” between a “man and a woman,” and that homosexual acts are “contrary to natural law” and “do not proceed from a genuine affective and sexual complementarity.”

The church asked the court to dismiss the suit

In May of 2019, stated the court, the school “officially notified [the plaintiff] by letter that her contract would not be renewed for the following school year. The letter stated that [her] ‘civil union is a violation [of her] contract and contrary to the teaching of the Catholic Church.’”

The plaintiff responded by suing the school and Archdiocese (the church defendants) for unlawful discrimination under Title VII of the Civil Rights Act of 1964. Title VII generally bans employment discrimination by employers with 15 or more employees on the basis of race, color, national origin, sex, or religion.

The church defendants asked the court to dismiss the case on the ground that Title VII permits religious organizations to discriminate in employment decisions on the basis of religion. The court declined to do so.

While the court conceded that religious organizations can discriminate on the basis of religion in their employment decisions, this exemption did not apply to the other forms of discrimination prohibited by Title VII (i.e., race, color, national origin, sex). As a result, the plaintiff’s claim of discrimination based on sexual orientation (a form of sex discrimination) was not barred by the religious exemption.

The court noted that the central question was: “Does a religious reason for an employment decision bar a plaintiff’s Title VII claim when the religious reason also implicates another protected class [i.e., sex]?”

It concluded:

[The church] defendants’ argument would allow a religious employer to convert any claim of discrimination on the basis of one of the protected classes under Title VII to a case of religious discrimination, so long as there was a religious reason behind the employment decision. This would effectively strip employees of religious institutions of all Title VII protections, if the employer’s religion clashed with the employee’s protected class status.

The court addressed the “church autonomy doctrine”

The court observed:

Consider a religious employer that genuinely believes the Bible forbids interracial marriage. Under the church defendants’ interpretation of [Title VII] that employer would be free to terminate an employee who married someone of a different race. Such an expansive reading of [Title VII] would sweep far more broadly than what Congress intended, as evidenced by its repeated refusal to completely exempt religious institutions from Title VII. There is no principled difference between that hypothetical employment decision and this case. Just as that employer would be subject to Title VII’s prohibition on racial discrimination, defendants are subject to Title VII’s prohibition on sexual orientation discrimination.

The court rejected the church defendants’ argument that the plaintiff’s claims were barred by the church autonomy doctrine:

[The church autonomy doctrine] ensures that churches have the “power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 186, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) (quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952)). “This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.” Our Lady of Guadalupe Sch. v. Morrissey-Berru,_U.S._, 140 S. Ct. 2049, 2060, 207 L.Ed.2d 870 (2020).

The court again quoted from the US Supreme Court’s decision in Hosanna-Tabor: “Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance.”

The church defendants insisted that they considered school guidance counselors to be ministers of the faith since they “facilitate faith formation in several ways, including praying with students, teaching and celebrating Catholic traditions, and conveying the Church’s message and modeling a Christ-centered life.” But the plaintiff disputed this characterization of her role.

She claimed that “her job duties and responsibilities as a guidance counselor did not include any religious or teaching duties.” She claimed that “she never performed any important religious duties for the church,” and asserted that “her role as guidance counselor did not include leading prayer or other religious services, nor did it include integrating religious teachings into her interactions with students.”

The court concluded that a “factual dispute” existed between the parties concerning the nature of the plaintiff’s job duties, and therefore it was inappropriate to dismiss the case without further factual development.

What this means for churches

The court conceded that Title VII of the Civil Rights Act of 1964 permits religious organizations to discriminate in employment decisions on the basis of religion, but it concluded that this exemption did not apply to the other forms of discrimination prohibited by Title VII (i.e., race, color, national origin, sex).

As a result, the plaintiff’s claim of discrimination based on sexual orientation (a form of sex discrimination) was not barred by the religious exemption.

However, the court recognized that the church autonomy doctrine would prohibit it from litigating the plaintiff’s claim of sexual orientation discrimination if the plaintiff’s position in the school was “a position of substantial religious importance.” And, since the evidence regarding the religious nature of the plaintiff’s duties was disputed, the court ordered the case to proceed to trial where the nature of the plaintiff’s position could be fully explored and determined.

Starkey v. Roman Catholic Archdiocese, 2019 WL 7019362 (S.D. Ind., 2020)

Legal Developments

Pastor’s Conversation with the Defendant Allowed in Murder Case

The trial court did not abuse its discretion by letting the pastor testify.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Confidential and Privileged Communications

Key point 3-07.4. In order for the clergy-penitent privilege to apply, there must be a communication that is made to a minister acting in a professional capacity as a spiritual adviser.

An Indiana appeals court affirmed a trial court’s conviction of a defendant for the murder of his wife; the appeals court rejected the defendant’s claim that his conviction had to be reversed because the trial court permitted a pastor to testify regarding an incriminating statement the defendant had made to him.

No reason to believe “the defendant expected any confidentiality”

Following a jury trial, a defendant was convicted of murdering his wife and sentenced to a prison term of 75 years. The jury rejected the defendant’s claim that he shot his wife in self-defense because she was attacking him with a large kitchen knife.

The court allowed the defendant’s pastor to testify about a conversation he had with the defendant while he was in prison awaiting trial. During that conversation, the defendant stated that he had attempted to corroborate his story by “planting” a knife at the scene of the incident.

On appeal, the defendant argued that the pastor’s testimony regarding the defendant’s incriminating statement should not have been allowed as evidence at trial because it was protected from disclosure by the clergy-penitent privilege. The appeals court began its opinion by quoting the Indiana clergy privilege:

Except as otherwise provided by statute, the following persons shall not be required to testify regarding the following communications . . . (3) Clergymen, as to the following confessions, admissions, or confidential communications. . . . A confidential communication made to a clergyman in the clergyman’s professional character as a spiritual adviser or counselor. Indiana Code section 34-46-3-1.

The defendant argued that the incriminating statement he made to the pastor was privileged because it was a “confidential communication made to a clergyman in the clergyman’s professional character as a spiritual adviser or counselor.” The court noted that the incriminating statement was made during a meeting in the defendant’s prison cell that was called by the pastor in order to provide the defendant with a letter suspending his church membership. The court concluded:

We find nothing in this conversation between the pastor and defendant that . . . indicates that the defendant expected any confidentiality on the pastor’s part or that the defendant was seeking spiritual advice or counseling from the pastor in the pastor’s professional character. Furthermore, the pastor testified that confession was not part of [his church’s] discipline; the church recognized the need for discretion but not confidentiality; and if a member of the church reported a crime to him, he believed it was his responsibility to report the crime to the authorities. Based on the foregoing, we find that the incriminating statement the defendant made to his pastor was not protected under [the clergy privilege]. Thus, the trial court did not abuse its discretion when it allowed the pastor to testify over defendant’s objection.

What this means for churches

This ruling demonstrates that the availability of the clergy-penitent privilege will depend on whether the minister was being sought out in a professional capacity as a spiritual adviser. The answer to this question is often unclear.

Clergy can help to ensure the availability of the privilege by asking counselees at some point during a conversation: “Are you seeking me out in my professional capacity as a spiritual adviser, or for some other purpose?” If a counselee responds that he or she sought out the minister as a spiritual advisor, then this will be relevant if not compelling evidence in demonstrating that the conversation was privileged despite the presence of conflicting or ambiguous evidence.

For additional guidance on this issue, see the “What this means for churches” section in “Pastor Allowed to Testify at a Man’s Sexual Abuse Trial.”

Elliott v. State, 152 N.E.3d 27 (Ind. App. 2020).

Legal Developments

Church Volunteer Given 35-Year Prison Sentence for Raping a Minor

Case illustrates the importance of adopting, and enforcing, a “two-adult rule” that prohibits church employees and volunteers from being alone with a single minor.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Key point 10-09.3. Churches can reduce the risk of liability based on negligent supervision for the sexual molestation of minors by adopting risk management policies and procedures.

An Indiana court affirmed a 35-year prison sentence for a church’s volunteer driver who raped an adolescent female who was the only passenger in his vehicle during a trip to a church activity.

An adult male (the “defendant”) attended a church in Indiana, and drove parishioners to and from church using a van owned by the church. One day, the defendant drove a 13-year-old girl (the “victim”) and her family to and from the church. On the drive home, he told the victim that there was an activity planned for teens at the church the following day and that she should call him if she wanted to attend. The following day, the victim obtained her father’s permission to attend the church event and called the defendant to ask for a ride to the church.

The next day the defendant drove his personal vehicle to the victim’s house to pick her up. When she got in the defendant’s vehicle, he did not take her to the church, but instead drove her to a horse stable. When the victim asked why he had not driven to the church, the defendant explained that he needed to pick up some items from his home. He then drove to his home. When the defendant went inside, the victim stood at the door to wait for him. The defendant then invited the victim inside and took her to his bedroom. The victim attempted to run away, but tripped and fell onto the bed. The defendant forcibly removed the victim’s clothing and raped her while she physically resisted. When he was finished, he instructed the victim to put her clothes back on, and then drove her home. He admonished her not to tell anyone what had happened.

When the victim got home, she took a bath, placed her clothes in the washer, and fell asleep. She eventually told one of her friends what had happened, and that friend telephoned the victim’s father and told him that he needed to speak with his daughter. When her father questioned her, the victim told him what had happened. At one point, the defendant called the victim’s father and asked him not to bring criminal charges. The following morning, the father took her to the hospital. After speaking with the victim and her father, a nurse at the hospital contacted the police.

The state charged the defendant with Class A felony for child molesting. A jury found the defendant guilty as charged. The trial court sentenced the defendant to 35 years imprisonment. The defendant’s appeal was rejected by a state appeals court.

What this means for churches

This case illustrates the importance of adopting, and enforcing, a “two-adult rule” that prohibits church employees and volunteers from being alone with a single minor. Had the church in this case adopted and enforced such a rule, it would have barred the defendant from driving the victim to church without a second adult in the vehicle. This would have had the following consequences:

the rape would not have occurred;

the defendant would not have been sentenced to prison for 35 years;

the church would not have been exposed to liability based on negligence for allowing a minor to be alone with an adult volunteer youth worker.

Clearly, adopting a two-adult rule, while an integral part of a program to reduce the risk of child molestation on church property and during church activities, is of no value if the policy is not followed. Church leaders need to continually stress the importance of following such a policy, and be alert to violations.

Also, note that a two-adult policy typically prohibits one adult from being alone with one minor. Permitting one adult in the presence of multiple minors, such as an adult teacher in a classroom with several students, is not prohibited since the opportunity for sexual assaults in such a setting is remote. This is the model employed by most public schools. This is significant since public schools are agencies of the state, and so churches that align their practices with those of the state through its public schools are far less likely to be liable on the basis of negligence for sexual assaults that occur.

A two-adult policy should apply to any church program or activity on or off church property. It should also apply to vehicles. Note that it is common for the two-adult rule to be triggered during an activity. To illustrate, a church adopts a two-adult policy prohibiting youth and children’s ministry workers from being alone with a child. A fourth grade teacher in the church’s Sunday school program has 12 students in his class on a Sunday morning. At the end of the class the children exit the classroom—except for one student who stays behind to talk with the teacher. While the two-adult rule would not apply at the beginning of the class, it would when only one student remains in the classroom at the end of the class. Consider another example.

A church adopts a two-adult policy prohibiting youth and children’s ministry workers from being alone with a child. A volunteer worker in the church’s high school ministry is asked to drive six teenagers home in a church vehicle at the end of a church activity. The driver drops off five students at their homes, and then proceeds to the sixth teenager’s home. While the two-adult rule would not apply initially, it would at the moment the driver is alone with the sixth student. Posey v. State, 110 N.E.3d 1190 (Ind. App. 2018).

Legal Developments

Church Loses Land Title by “Adverse Possession”

A church lost title by adverse possession to a portion of its property that was openly and continuously used by a neighboring landowner for several years without objection.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Church Property

Key point 7-18. Churches can lose a portion of their property to a neighboring landowner as a result of “adverse possession,” if the neighbor openly and adversely occupies church property for the length of time prescribed by state law.

An Indiana court ruled that a church lost title by adverse possession to a portion of its property that was openly and continuously used by a neighboring landowner for several years without objection.

A church subdivided part of its property as part of a plan to sell a portion of it. A survey was conducted prior to the subdivision of the property. This survey revealed a discrepancy in the property line between the church’s property and the property of a neighboring landowner (the “plaintiffs”). The area in question (the “disputed area”) was a triangular shaped area along the parties’ property lines. The disputed area was confirmed in a subsequent survey.

The plaintiffs’ garage has been partially located in the disputed area since before the plaintiffs purchased the property in 1983. A shed belonging to the plaintiffs is also located in the disputed area. In 1995, the plaintiffs replaced the original fencing and, in 2003, rebuilt their garage. Both the new fencing and the garage were rebuilt in the exact location as the prior fence and garage. The plaintiffs have always taken responsibility for the upkeep of the disputed area and have always used the land in question and mowed it. The plaintiffs have been paying taxes on the disputed area since purchasing their property in 1983.

In 2014, the plaintiffs filed a lawsuit to determine ownership of the disputed area. The trial court issued an order awarding title to the disputed area to the plaintiffs. The church appealed.

A state appeals court noted that the doctrine of adverse possession entitles a person without title to obtain ownership to a parcel of land upon clear and convincing proof of control, intent, notice, and duration, as follows:

Control—The claimant must exercise a degree of use and control over the parcel that is normal and customary considering the characteristics of the land (reflecting the former elements of actual, and in some ways exclusive, possession);

Intent—The claimant must demonstrate intent to claim full ownership of the tract superior to the rights of all others, particularly the legal owner (reflecting the former elements of claim of right, exclusive, hostile, and adverse);

Notice—The claimant’s actions with respect to the land must be sufficient to give actual or constructive notice to the legal owner of the claimant’s intent and exclusive control (reflecting the former visible, open, notorious, and in some ways the hostile, elements); and

Duration—the claimant must satisfy each of these elements continuously for [ten years].

In addition to these elements, “the adverse possessor must pay all taxes and special assessments that the adverse possessor reasonably believes in good faith to be due on the real property during the period the adverse possessor claims to have adversely possessed the real property.” Once the elements of adverse possession are established, “title to the disputed tract of land is conferred upon the possessor by operation of law, and title is extinguished in the original owner.” Further, “once title vests in a party at the conclusion of the ten-year possessory period, the title may not be lost, abandoned, or forfeited, even where the party pays rent to the titleholder, agrees to a survey to attempt to find the true boundary line, expresses satisfaction with a survey whose results are inconsistent with the property adversely possessed by him, or states that he does not claim the land and offers to buy it.”

In this case, the plaintiffs “continuously demonstrated the elements of adverse possession of the entire disputed area since 1983. As such, title vested with the plaintiffs no later than 1993, well before the church subdivided and sold a portion of its property. . . . We therefore conclude that any subsequent objection to the plaintiffs’ use of the disputed area by . . . the church was insufficient to undermine the plaintiffs’ ownership of the disputed area.”

What This Means For Churches:

This case illustrates an important point. Churches may lose legal title to property that they allow a neighboring landowner to use openly, adversely, and without objection for the prescribed period of time. As in this case, the question of adverse possession often arises as a result of a survey. And, as this court concluded, once title vests in a party by adverse possession, “the title may not be lost, abandoned, or forfeited, even where the party pays rent to the titleholder, agrees to a survey to attempt to find the true boundary line, expresses satisfaction with a survey whose results are inconsistent with the property adversely possessed by him, or states that he does not claim the land and offers to buy it.” Boas v. Hayden Methodist Church, 110 N.E.3d 1190 (Ind. App. 2018).

Legal Developments

Ministerial Exception Prevents Court from Resolving Discrimination Lawsuit

The court ruled that the “ministerial exception” prevented it from resolving a lawsuit of a former principal at a Catholic high school claiming that the school’s failure to renew her employment contract amounted to unlawful sex, age, and disability discrimination.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Employment Practices, Judicial Resolution of Church Disputes

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

A federal court in Indiana ruled that the “ministerial exception” prevented it from resolving a lawsuit of a former principal at a Catholic high school claiming that the school’s failure to renew her employment contract amounted to unlawful sex, age, and disability discrimination.

A woman (the “plaintiff”) served as a public elementary school principal for 17 years. In late July 2012, she was hired as the principal of a Catholic high school for the 2012-2013 school year. In late spring 2013, she was offered, and accepted, the position of school principal for the 2013-2014 school year. On March 3, 2014, the plaintiff was informed that her contract would not be renewed for the following year. The plaintiff sued the Diocese for employment discrimination based on sex, age, and disability as well as various state-law claims.

The plaintiff had signed a written one-year contract for each of the 2012-2013 and 2013-2014 school years. The contract for the 2013-2014 school year included a “Ministerial Duties/Morals Clauses” that provided, in part:

To be [the] Principal in a Catholic school is to accept a ministry. The ministry of the Principal must clearly reflect the Catholic Christian spirit of love, understanding, and humility. This ministry is witnessed not only in the manner in which the Principal performs his/her tasks, but also in the example the Principal sets for the teachers and students both in and outside the School and parish, and including everyone associated with the School, parish, and diocese … . Furthermore, in carrying out his/her duties under this agreement, the Principal agrees to faithfully reflect the teachings of the Roman Catholic Church, in mind and in deed, and at all times, both in and out of School, to abide by the official teachings of the church, as interpreted by the Bishop of the Diocese. [The] Principal understands that every subject taught in the School is embedded in Catholic theology and that part of the Principal’s ministry in the School is to apply the theology, doctrine, and teachings of the Catholic Church in every aspect of the School and in every duty of a principal. Failure to comply with the terms of the Part A “Ministerial Duties/Morals Clauses” may result in the immediate termination of this contract.

The Diocese asked the court to dismiss the lawsuit on the basis of the “ministerial exception,” which generally bars the civil courts from resolving employment disputes between churches and ministers.

The plaintiff insisted that the ministerial exception did not bar her claims, since: (1) she was an educator in a Catholic environment, and most of her job responsibilities were similar to the 17 years she spent as a principal in a public school; (2) while the school where she was employed was a Catholic high school, it had multiple students who were not Catholic, including Baptist, Lutheran, and Jewish students; and (3) there were only two persons at her former school that held “ministry” titles: a chaplain, and the head of campus ministry.

The court agreed with the diocese that the plaintiff’s claims were barred by the ministerial exception. It noted that the United States Supreme Court recognized the ministerial exception in a 2012 ruling. Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 132 S. Ct. 694 (2012). The Supreme Court reasoned:

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

The Supreme Court held that the exception “is not limited to the head of a religious congregation” and declined “to adopt a rigid formula for deciding when an employee qualifies as a minister” for purposes of the exception. Rather, the Court found the following four factors indicated that the plaintiff, who was a “called teacher” at a Lutheran Church and School, qualified as a minister under the facts of that case: (1) the Church held the plaintiff out as a minister; (2) the title reflected a significant degree of religious training; (3) the plaintiff held herself out as a minister; and (4) the plaintiff’s job duties included important religious functions.

The Indiana court considered these four factors in finding that the plaintiff, as the principal of a Catholic high school, was a “minister” for purposes of the ministerial exception.

(1) The Diocese held the plaintiff out as a minister

In concluding that this factor was met, the court referred to the “Ministerial Duties/Morals Clauses” in the plaintiff’s employment contract, which affirmed that “to be Principal in a Catholic school is to accept a ministry,” and that “in carrying out his/her duties under this agreement, the Principal agrees to faithfully reflect the teachings of the Roman Catholic Church, in mind and in deed, and at all times, both in and out of School, to abide by the official teachings of the church.”

(2) A title that reflects religious training

The court noted that this factor weighed against ministerial status since there was nothing “inherently religious about the title of Principal.”

(3) Plaintiff held herself out as a minister

In concluding that the plaintiff held herself out as a minister of the church, the court noted that she had accepted the principal position, which was explicitly described as one of ministry in the Employment Agreement that she signed. As a result, she knew that she was expected to “faithfully reflect the teachings of the Roman Catholic Church, in mind and in deed, at all times, both in and out of School,” and she agreed that “part of the Principal’s ministry in the School is to apply the theology, doctrine, and teachings of the Catholic Church in every aspect of the School and in every duty of a principal.” In other words, “she accepted that she would be seen as a ministerial leader.”

The court concluded that this third factor was neutral in applying the ministerial exception.

(4) Important religious functions

The court conceded that there was no evidence that the plaintiff “performed religious functions such as leading daily prayers or teaching religion lessons,” and concluded that this factor “weighs against applying the ministerial exception.”

In attempting to refute her status as a minister, the plaintiff cited a dictionary definition of “minister” as a person whose job involves leading church services, performing religious ceremonies, and providing spiritual or religious guidance. The court countered: “It is irrelevant that she is not a member of the clergy and that she would not be considered a minister for purposes of Church governance” because “the issue here is one of civil, not canon, law, and ‘minister’ for purposes of the ministerial exception has a far broader meaning than it does for internal church purposes … . In determining whether an employee is considered a minister for the purposes of applying this exception, we do not look to ordination but instead to the function of the position,” citing Alicea-Hernandez v. Catholic Bishop, 320 F.3d 698, 703 (7th Cir. 2003).

The court concluded:

Having considered all the evidence of record in light of the factors applied by the United States Supreme Court in Hosanna-Tabor, the Court finds that the ministerial exception applies to the plaintiff’s role as principal of [the] High School. As noted in Hosanna-Tabor, a core value of the Free Exercise Clause is to “protect a religious group’s right to shape its own faith and mission through its appointments.” Although the plaintiff’s title and training and the lack of evidence of involvement in religious activity weigh against applying the ministerial exception, the ministerial role assigned to and accepted by the plaintiff as the head of the Catholic High School are sufficient for the Court to apply the ministerial exception in this case … . Requiring [the] High School to reinstate the plaintiff as principal or by punishing it for not renewing her contract would violate the School’s freedom under the [Constitution] to select its own ministers.

Thus, because the plaintiff was a minister within the meaning of the ministerial exception, her federal employment claims must be dismissed.

What this means for churches

This case is important for two reasons.

First, the court applied the four-factor test enunciated by the Supreme Court in Hosanna-Tabor in deciding if the plaintiff was a “minister” subject to the ministerial exception. Note that the court concluded that the plaintiff was a minister, though only one of the four factors supported minister status (one was neutral, and two did not support minister status).

Second, the court declined to follow a dictionary definition of the term “minister” in evaluating the application of the ministerial exception. Instead, it noted that the term “minister” for purposes of the ministerial exception “has a far broader meaning than it does for internal church purposes.” Ginalski v. Diocese, 2016 WL 7100558 (N.D. Ind. 2016).

Legal Developments

Indiana Court Rules Couple Who Reported Suspected Child Abuse May Sue for Having Identity Exposed

Church Law and Tax Report Indiana Court Rules Couple Who Reported Suspected Child Abuse May

State: Indiana
Categories: Child Abuse Reporting

Church Law and Tax Report

Indiana Court Rules Couple Who Reported Suspected Child Abuse May Sue for Having Identity Exposed

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.

An Indiana appeals court ruled that a husband and wife could sue the state for emotional suffering they experienced after the disclosure of the husband’s identity as the person who reported five neighbors on his church bus route to the child abuse hotline. A husband and wife (the “plaintiffs”) were actively involved in their church. The husband drives a church bus that regularly takes children in the neighborhood to church events. As a result of his involvement with many of these children, as well as incidents he witnessed in the neighborhood, the husband came to believe that children in various homes were being abused and neglected. He spoke to his wife about his concerns, which she shared, and she reluctantly agreed that the husband should make a report to the state Department of Child Services (DCS).

The husband called the DCS hotline to report his suspicions that children in five homes on his street were in need of services due to dangerous living situations. He believed the adult subjects of his report were involved in drugs or other criminal activities and were associated with serious and violent criminals. When he was about to end the call, the DCS employee asked for his name and phone number. The husband expressed reluctance and indicated that he did not want anyone to know that he had called. The employee responded that the information was confidential and nobody would find out that he made the report. The husband then agreed to give his first name and phone number, but not his last name. DCS also had the name of the street on which he lived.

About a week later, the plaintiff was confronted in his front yard by a neighbor (Heather) who lived across the street and was one of the neighbors the husband had reported. While screaming and yelling obscenities, Heather angrily accused the husband of calling DCS. She had in her possession an unredacted copy of the DCS report, which identified the husband as the reporting source. Other neighbors quickly became aware of the report. Upon realizing the report was not kept confidential, the husband felt like “somebody ripped my heart out.”

From that point on, the husband’s family no longer felt comfortable outside their house. They wanted to relocate but could not afford to move. The husband indicated that he was “stared at, glared at, flipped off, yelled at, you know, every day, forever.” His daughter was bullied by other children. Both the husband and wife missed work due to stress and lack of sleep, and the wife was screamed at and threatened by Heather. On one occasion, Heather threatened to “cut that smirky grin off your face.”

The couple filed a lawsuit against DCS, claiming that it had been negligent in failing to protect the husband’s identity. The trial court dismissed the case, concluding that the couple had no private right of action to bring a claim for violation of the child abuse reporting law’s assurance that the identity of reporters would not be disclosed. The couple appealed.

The state child abuse reporting law provides that reports shall be made available to “each parent, guardian, custodian, or other person responsible for the welfare of a child named in a report or record … with protection for the identity of reporters and other individuals,” (emphasis added) and “a person about whom a report has been made, with protection for the identity of … any person reporting known or suspected child abuse or neglect.” While the disclosure of the identity clearly violated this law, DCS argued that the statute did not confer a private right of action on persons harmed by its violations.

The court acknowledged that the child abuse reporting law did not specifically create a “cause of action” for child abuse reporters whose identities are revealed by DCS, but it concluded that this did not matter since a cause of action could be based on common law:

A special relationship was clearly established when the husband made the call to the DCS hotline and, after making his report, indicated his reluctance to give identifying information. Justifiably relying on the DCS employee’s explicit assurance that such information would be kept confidential, the husband then provided the information. The reasonable foreseeability of harm to him and his family upon improper disclosure of this information was evident … . Ultimately [the husband and his family] were left in a far worse position after he called the hotline and relied on DCS’s promise.

The court concluded that “under the specific circumstances of this case, the husband has established the existence of a private duty owed to him by DCS.”

What This Means For Churches:

It is common for ministers to learn that a minor has been abused. This can occur in a number of ways, including a confession by a perpetrator, a conversation with a victim, or a disclosure by a friend or relative of the victim or perpetrator. Ministers often are reluctant to report abuse because of a fear that their identity will be revealed and reprisals by the alleged perpetrator will follow. Most child abuse reporting statutes assure reporters that their identities will not be disclosed. But what if they are, and the reporter suffers retaliation? Can the minister sue the state agency that was responsible for the disclosure? According to this case, the answer is yes.

This was not the first court to address this issue. In a Texas case, a minister received confidential information from members of his congregation that two other members were physically and emotionally abusing their 5-year-old twin boys. The two members accused of abuse were the children’s biological father and stepmother.

The stepmother and her family were prominent members of the congregation. The boys’ biological mother was not a member of the congregation and was not named in the allegations of abuse. The minister tried to persuade the members who disclosed the abuse to report their suspicions to the state. When these efforts failed, the minister called the Department of Human Services. Before making his report, the minister asked a department caseworker if his call would be confidential. Specifically, he asked: “Now I mean … you’re telling me that there is no way that the people that I call in to talk about or anyone in their family will ever find out that I called or anything that I say in the course of this phone call.”

The minister made the report only after requesting and receiving assurances that his identity would not be disclosed to the family. Several months later the alleged abusers requested a copy of the department’s file in order to determine who reported them. The department’s legal counsel determined that there was no legal basis for withholding the minister’s identity, and so the file was released, including the identity of the minister.

Unfortunately, the minister’s worst fears were realized. After learning of their minister’s role in reporting the allegations of abuse against them, the parents filed a $1 million libel suit against him and the church. Several weeks later, the church asked the minister to resign. The libel suit was later dismissed.

Several months later the minister sued the Department of Human Services, seeking monetary damages and declaratory relief requiring the department to guard the confidentiality of persons who report child abuse. The minister claimed that the department’s negligence in disclosing his identity to the family, despite its assurances of confidentiality, caused his church to dismiss him and damaged his reputation. He claimed additional damages for medical expenses to combat depression and for legal expenses incurred by him and the church. A jury ruled in favor of the minister and awarded him damages of $611,000. The trial court concluded that the department violated confidentiality provisions of state law when it revealed the minister’s identity, and it ordered the department not to divulge such information in the future without a court order.

A state appeals court overturned the judgment against the department on the basis of sovereign immunity. Texas Department of Human Services v. Benson, 893 S.W.2d 236 (Tex. App. 1995). But the Texas appeals court affirmed the trial court’s order prohibiting the state from disclosing the identity of child abuse reporters. In barring the department from ever again following such a policy, the court observed: “We hold that the trial court properly declared that confidentiality is central to the [law’s] provisions governing the reporting of child abuse. Those provisions reflect a legislative determination that granting immunity and confidentiality to [reporters] will encourage the reporting of child abuse. The minister’s experience reveals how retaliation may devastate the life of a concerned citizen who fulfills his statutory duty to report suspected child abuse, absent the protection of confidentiality.” Doe v. Indiana Department of Child Services, 53 N.E.3d 613 (Ind. App. 2016).

Legal Developments

Indiana Court Rules First Amendment Prevents It from Resolving Pastor’s Compensation Lawsuit

Church Law and Tax Report Indiana Court Rules First Amendment Prevents It from Resolving Pastor’s

State: Indiana
Categories: Clergy - Discipline and Removal

Church Law and Tax Report

Indiana Court Rules First Amendment Prevents It from Resolving Pastor’s Compensation Lawsuit

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.

An Indiana appeals court ruled that it was barred by the First Amendment from resolving a dispute between a church and former pastor over compensation and benefit issues, and rejected the pastor’s claim that it could resolve the dispute through application of neutral principles of law requiring no recourse to church doctrine or polity. On October 17, 2010, a pastor (the “plaintiff”) was “called” to be the pastor of a Presbyterian church in Indiana. On that date, the plaintiff entered into a contract that covered a three-year period beginning on October 18, 2010. The “Terms of Call” set forth in the contract provided that the pastor would receive a stated salary, housing, and other benefits, including five weeks of vacation.

In the summer of 2012, the relationship between the pastor and congregation began to deteriorate. The church maintained that the plaintiff alienated himself from the congregation when he “neglected his pastoral responsibilities” by failing to make himself available for pastoral counseling services, missing scheduled appointments with parishioners, and refusing to keep the church board (“session”) informed of his whereabouts and activities even after being asked to do so. The church claimed that from June 2012 to July 2012, the pastor: (1) “abandoned” his pastoral duties and was absent from church, without informing the session or obtaining consent to take vacation time; and (2) repeatedly failed to provide pastoral services to the church and its members without explanation.

The pastor insisted that during the time frame in question he utilized two of the five weeks of vacation he was entitled to and that he informed the session in advance. He claimed that he did not abandon his congregation and identified his pastoral activities, which included meeting with congregation members, conducting a funeral, leading a worship service at a local retirement community, and volunteering at a soup kitchen.

The discord between pastor and congregation escalated to a point where a regional denominational agency (the “presbytery”) intervened to meet with the pastor, the session, and congregation, in an effort to resolve the discord. The pastor walked out of the meeting and failed to meet further with the presbytery. Soon thereafter, the presbytery and its commission on mission decided that “the pastoral relationship between [the plaintiff and church] is no longer viable and needs to be ended in order to prevent further deterioration of the spiritual health of the church.” The plaintiff was so informed by letter. The letter further provided that the presbytery and church would work with the plaintiff to negotiate a fair and equitable severance package, but the plaintiff declined the offer. On or about that same day, the presbytery notified the church and its session of its decision to dissolve the plaintiff’s pastoral position.

The plaintiff sued the church, seeking compensation for unpaid salary and benefits, including unpaid vacation wages, to which he claimed he was entitled pursuant to the terms of call set out in his contract. The church filed an answer, seeking a determination that the plaintiff had breached his obligations and promises to the congregation by abandoning his pastoral duties. As such, the church argued that it was no longer obligated under the contract to compensate him for unused vacation time.

The trial court dismissed the case, concluding that resolving the dispute between the parties would require it “to interpret and apply religious doctrine or ecclesiastical law.” The plaintiff appealed, arguing that his claims for compensation and benefits could be resolved without implicating doctrine or polity and so were not barred by the First Amendment. A state appeals court rejected the plaintiff’s argument:

There is no doubt that the terms of call set forth in the contract provided that the pastor would receive five weeks of vacation. The question remains, however, as to whether upon the termination of his pastoral relationship by the presbytery he was still entitled to compensation for unused vacation time. This determination necessarily would have required inquiry into the reason for termination … . The church cited abandonment of his pastoral duties as the impetus for termination of the plaintiff’s pastoral relationship … . The presbytery determined that the discord between the pastor and congregation resulting from the belief that the plaintiff abandoned his duties had reached the point where his pastoral relationship needed to end “in order to prevent further deterioration of the spiritual health of the church.” The church therefore asserts that the plaintiff, having abandoned his position, breached the contract, thereby relieving it of any further obligations under the contract. The pastor denies abandoning his pastoral duties and lists his pastoral activities in the weeks leading up to his termination.

To address these competing positions regarding the facts of this case would require a court to inquire into the religious doctrine of the church and its polity. A court would have to determine what the duties of a pastor called to serve a local session and congregation entail and then decide whether the pastor’s conduct met such standards. Essentially, the court would have to second-guess, in this case, the presbytery as to its determination that the plaintiff’s pastoral relationship was detrimental to the spiritual health of the church. Indeed, the court’s inquiry would require delving into church doctrine to pass judgment on whether plaintiff was fit to serve as pastor of the church and whether the pastoral services he claimed to have provided were sufficient to meet the standards set forth by the Presbyterian Church. It is in this vein that this court has held that the First Amendment “proscribes intervention by secular courts into any employment decision made by religious organizations based on religious doctrines or beliefs.

“We conclude that the trial court properly determined that review of the issues presented would have necessitated the court to interpret and apply religious doctrine or ecclesiastical law. The First Amendment requires civil courts to refrain from interfering in such matters. We therefore conclude that the trial court properly [dismissed the plaintiff’s lawsuit].”

What This Means For Churches:

The importance of this case is the court’s rejection of the argument that employment disputes between clergy and churches can be resolved by the civil courts so long as they can do so without reference to doctrine or polity. As this court noted, it is the rare exception for such disputes to be capable of resolution on strictly neutral principles without reference to doctrine or polity. Matthies v. First Presbyterian Church, 28 N.E.3d 1109 (Ind. 2015).

Legal Developments

Court Awards School Teacher Damages in Suit against Diocese for Disparity in Female and Male Employee Treatment

Church Law and Tax Report Court Awards School Teacher Damages in Suit against Diocese for

State: Indiana
Categories: Employment Practices

Church Law and Tax Report

Court Awards School Teacher Damages in Suit against Diocese for Disparity in Female and Male Employee Treatment

Key point 8-12.1. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. Religious organizations are exempt from the ban on religious discrimination, but not from the other prohibited forms of discrimination.

Key point 8-12.4. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. The Act permits religious organizations to discriminate in employment decisions on the basis of religion. This exemption permits such organizations to discriminate on the basis of moral or scriptural standards so long as they do consistently and not in a way that adversely impacts employees who are members of a group that is protected under an applicable state or federal discrimination law.

A federal district court in Indiana ruled that a Catholic Diocese had committed unlawful sex discrimination by dismissing a female employee for pursuing in vitro fertilization contrary to church teachings. A woman (the “plaintiff”) was employed as a teacher at a Catholic parochial school. She and her husband had struggled to have a second child. Her doctor believed in vitro fertilization offered their best (and perhaps only) chance. The plaintiff underwent two rounds of in vitro treatment and notified the school principal before beginning each round. The first time, the principal expressed support and prayers. The Diocese renewed the plaintiff’s year-to-year teaching contract after that. The principal learned of the second round of treatment when the plaintiff notified the school’s attendance officer that she would be taking sick days to undergo the treatment.

At some point the principal acquired a better understanding of church teachings, and realized that the plaintiff was announcing an intention to do something the church viewed as gravely immoral. The tenets of the Roman Catholic Church consider in vitro fertilization to violate the Fifth Commandment (“Thou shalt not kill”) because the procedure involves (or can involve) the freezing and discarding of embryos.

The plaintiff’s teaching contract had what the church calls a “morals clause” that requires employees to comport themselves according to the teachings of the church. The principal informed the Diocese about the plaintiff’s plans for in vitro fertilization. The bishop summoned the plaintiff to meet with him and told her in vitro fertilization was a sin. This was news to the plaintiff, who didn’t think the bishop fully understood the process she was undergoing. She tried to explain to him that no embryos were being destroyed; he said he would have to research further because he understood that embryos always were destroyed. The plaintiff was so close to a part of the procedure that she thought it was medically impossible to stop, so she didn’t agree to stop the process.

After conferring with other clergy in the Diocese, the bishop directed the principal to notify the plaintiff that her teaching contract wouldn’t be renewed for the following school year.

The plaintiff sued the Diocese, claiming that its decision not to renew her contract as a result of her violation of the “morals clause” in her contract amounted to sex discrimination in violation of Title VII of the Civil Rights Act of 1964. In support of her discrimination claim the plaintiff introduced evidence that a former male teacher at the school had gone to a strip club with other men to celebrate his birthday, and that when his conduct came to the attention of school officials, he was sent to meet with the bishop. But the bishop didn’t show up; he instead sent a priest. The discussion in the meeting about the wrongfulness of his conduct quickly shifted to a discussion of the upcoming Cubs’ baseball season. The teacher was not disciplined, no one ever reviewed the “morals clause” with him or asked whether he had complied with it before his contract was renewed, and he didn’t promise not to do it again. The Diocese argued that the male teacher’s misconduct in attending a strip club was too dissimilar to the plaintiff’s behavior to have any relevance.

The court pointed to another example of unequal treatment between male and female employees. Namely, that “in vitro fertilization treatment is harder for a female teacher to keep quiet than it would be for a male. The female teacher can’t teach at school when her body is needed for the treatment, so she needs to miss work,” meaning that it is entirely possible for male teachers to retain their jobs despite the “morals clause,” while this would be difficult if not impossible for female teachers.

Because of these examples of different treatment for violations of the “morals clause” based on one’s gender, the court concluded that the Diocese refused to renew the plaintiff’s contract as an elementary school teacher because of her sex, and awarded her $1.95 million in compensatory damages and $1 in punitive damages. The court reduced these awards to a total of $545,000

What This Means For Churches:

This case demonstrates that the dismissal of an employee for violating a church’s moral teachings may expose a church to liability. There are steps that a church can take to mitigate this risk. Before dismissing an employee for violating the church’s moral teachings, church leaders should ask the following questions:

(1) Is there sufficient evidence to support our decision?

(2) Did we inform the employee, in an employee handbook or other document, that he or she would be subject to dismissal for engaging in behavior in violation of our moral teachings?

(3) How will we describe the basis for our decision? The best description will refer to the church’s doctrinal tenets and scriptural citations. Stay away from words such as “pregnancy” that can have a “secular” meaning and that diminish the “religious exemption” available to churches under most federal and state civil rights and employment laws.

(4) How have we treated other employees in the past who were guilty of the same kind of misconduct? Have we treated all employees equally? Or, have we treated some employees less favorably than others? For example, have we dismissed female employees who were guilty of extramarital sexual relations, but only warned or reprimanded male employees guilty of the same behavior? Before dismissing an employee for misconduct, church leaders should review all other known cases involving similar misconduct by other employees. Be sure that an employee who is protected against discrimination by state or federal law is not being treated less favorably than other employees in previous cases.

(5) Have we consulted with an attorney before taking final action? Herx v. Diocese, 2015 WL 1013783 (N.D. Ind. 2015).

Legal Developments

Social Media and Sexual Offenses

Church Law and Tax Report Social Media and Sexual Offenses Key point 4-11.1. Clergy who

State: Indiana
Categories: Sexual Misconduct by Clergy, Lay Employees, and Volunteers

Church Law and Tax Report

Social Media and Sexual Offenses

Key point 4-11.1. Clergy who engage in sexual contact with an adult or minor are subject to civil liability on the basis of several legal theories. They also are subject to criminal liability.

The Indiana Supreme Court upheld the conviction of a teacher for the attempted seduction of a minor based on his communications with a 16-year-old student via an Internet social network. A high school teacher and coach communicated via an Internet site (Facebook.com) with a 16-year-old student. The communications, which were replete with sexual references and images, constituted “sexting.” While the teacher repeatedly urged the girl to sneak out of her house while her parents were asleep and join him, such an encounter never occurred. The relationship was entirely “virtual,” using social media.

The teacher’s actions came to light after the student informed her parents, and he was charged with two counts of attempted child seduction. Under Indiana law, a teacher who engages in touching or fondling a student between the ages of 16 and 18 with the intent to arouse or satisfy the sexual desires of the teacher or the student commits “child seduction,” a class D felony. Indiana law also provides that a person “attempts” to commit a crime when, “acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.” The teacher was found guilty of two counts of attempted child seduction.

The teacher appealed, claiming that online solicitation was not aimed at the “immediate commission of a crime” and therefore he had not committed the crime of attempted child seduction.

A state appeals court reversed the teacher’s convictions, noting that as a matter of law the Internet solicitations did not constitute a substantial step toward the crime of child seduction because the teacher’s requests were simply an invitation to the student, not the required “urging” or “persuasion,” and in any event, because the requests were not made in the student’s presence, the student was never in a position to submit to the solicitation, so the requests related to future conduct rather than the immediate commission of a crime.

The state supreme court reversed the appeals court’s ruling and reinstated the trial court’s conviction. The court acknowledged that “what constitutes an attempt offense in the area of sex offenses against children can, on occasion … involve subtle distinctions in behavior and the nuance of the context in which the behavior occurs.” But the court concluded that in this case it was reasonable for the jury to conclude that the offense of attempted child seduction had occurred.

What This Means For Churches:

In many states the transmission of sexually explicit text messages (“sexting”) via a cell phone or other electronic device constitutes a crime. Such messages also can be used as evidence in civil lawsuits. For example, assume that an adolescent female in a church youth group claims that the youth pastor had nonconsensual sexual contact with her. She sues the church, claiming that it is responsible for the pastor’s acts on the basis of negligent hiring and supervision. The victim subpoenas the youth pastor’s text messages to establish the truth of her claims.

Several courts have addressed the issue of criminal liability of pastors for engaging in sexting. Consider the following examples:

Example. A pastor was convicted of several sexual offenses involving his sexual solicitation and molestation of a minor, and sentenced to a minimum prison term of 186 years. One of his offenses was “contributing to delinquency of a minor,” which was based in part on several sexually explicit text messages (“sexting”) that the pastor sent to the minor on his cell phone. 2010 WL 10409 (N.C. App. 2010).

Example. A youth pastor (the “defendant”) was sentenced to five years in a state prison as a result of various sexual offenses with a minor female (the “victim”). The victim had sought out the defendant for counseling as a result of her depression and suicidal thoughts that stemmed from an incident of sexual abuse which occurred when she was nine or ten years old. A sheriff came upon the defendant and victim parked off a gravel road in a rural area at night. The defendant claimed he was parked in a remote area because he was trying to get a signal on his cell phone. The sheriff told him “it wasn’t smart to be out on a gravel road parked like that with a youth in his vehicle,” and he told him to “use his head.”

The sheriff later informed the victim’s father about what he had seen, and the father instructed the defendant to have no further contact with his daughter by cell phone or text message. A few weeks later the sheriff again came across the defendant and victim in a car parked along a secluded farm road. The defendant claimed that he was counseling the victim regarding an incident of sexual abuse that had occurred several years earlier. The sheriff again informed the victim’s parents.

The defendant was later charged with several sex offenses. An investigation by the sheriff’s office uncovered text messages between him and the victim containing strong sexual content. His cell phone contained a partially nude image of the victim, and he sent a partially nude image of himself to the victim via a text message. This evidence was used in prosecuting the defendant for violating a state law making it a criminal offense for the sexual exploitation of a counselee by a counselor. The court found that the defendant, as a youth counselor engaged in counseling the victim, was a “counselor” and it sentenced him to a prison term of five years. State v. Duvall, 776 N.W.2d 301 (Iowa App. 2009).

Example. A court used sexually explicit text messages between a youth pastor and a female member of the youth group to corroborate her account of sexual exploitation. The court sentenced the pastor to a prison sentence of four years to life. 2009 WL 1476934 (Colo. App. 2009).

Example. A youth pastor (the “defendant”) sent several sexually explicit emails to a female adolescent in the church’s youth group. The victim told her mother about the emails. After reviewing the messages, the mother contacted the police. A police officer questioned the defendant about the emails. The defendant admitted that he sent the emails, and expressed deep remorse for his actions. In the transcript of this conversation the defendant stated that he had made “a very, very poor decision to engage in these email conversations with her, uh, and allowed myself to get caught up in things of a sexual nature.” The state charged the defendant with six counts of communicating with a minor for immoral purposes under a state law making it a class C felony for a person to communicate with a minor for immoral purposes through electronic communication. At trial, the defendant testified that he did not remember sending any of the emails. The jury didn’t believe him, and found him guilty on all six counts. The trial court sentenced the defendant as a class C felon to the statutory maximum of five years per count. State v. Haack, 2010 WL 4216705 (Wash. App. 2010).

Example. A volunteer youth leader (the “defendant”) in a local church was sentenced to eight years in prison on each of two counts of sexual assault in the first degree and contributing to the delinquency of a minor. At trial, the defendant’s former husband testified that he suspected his wife of having an affair. He set up surveillance in his house, then left for the weekend. When he returned and retrieved the hidden device, he watched the videotaped recording of his wife and a 17-year-old male consuming alcohol and having sexual relations. He gave the police this recording, which led to the defendant’s arrest and prosecution. Among the several items of evidence introduced at trial by the prosecution were several sexually explicit text messages from the defendant that the mother of one of the victims found on her son’s cell phone. Cluck v. State, 2009 WL 1362863 (Ark. App. 2009).

The lesson is clear: social media and electronic devices can create risks of both criminal and civil liability, and this fact should be frequently stressed to church staff members. 17 N.E.3d 270 (Ind. 2015).

Legal Developments

Failed Shooter Prevention and Fault

Church Law and Tax Report Failed shooter prevention and fault Key point 7-20.4. A church

State: Indiana
Categories: Personal Injuries on Church Property or During Church Activities

Church Law and Tax Report

Failed shooter prevention and fault

Key point 7-20.4. A church may be legally responsible for assaults occurring on its premises if similar assaults occurred on or near the premises in the recent past and the church failed to take reasonable precautions.

An Indiana court ruled that a school could be liable for non-fatal injuries suffered by two public high school students who were shot by a former student previously suspended from school for threats and other inappropriate behavior. An eighth-grade student (the “shooter”) at a public middle school had a history of disciplinary problems that culminated in 50 discipline referrals, 43 of which were for disrespect toward school personnel or failure to follow school rules. He also had seven discipline referrals for harassing, threatening, and physically assaulting other students. On one occasion he commented to some of his classmates that he wanted to “just blow up the school.” After the classmates reported his remark, the school suspended him for 10 days. He remained barred from entering school property except to take a state standardized test. Because of his overall disciplinary history, the school’s principal also initiated expulsion proceedings, but before he was formally expelled his mother withdrew him from school.

On the morning of March 25, 2011, the shooter’s Facebook status read “today is the day” and “don’t use your mind, use your nine.” He arrived at the school around 7 a.m. He wore a dark-colored hooded sweatshirt with the hood pulled over his head and moved toward the building so as to avoid detection.

The school principal had developed a safety plan for the school and the school’s three surveillance cameras, positioned at three of the school entrances, were functioning properly that morning. One of the school’s entrances was unlocked from 6:30 a.m. to 7:30 a.m.; two other entrances were unlocked from 7:10 a.m. to 7:30 a.m.; and the five school employees who were assigned to various positions around the school’s exterior to monitor student arrival were in place beginning at 7 a.m. All of the monitors knew the shooter and were aware that he was prohibited from being on school property. None of the monitors noticed the shooter when he arrived at the school, although several students did. No students reported his presence to school personnel, even though “everybody knew” that he was banned from school property and even though the students saw that the shooter carried in his back pocket what appeared to be a wrench covered in a cloth.

The shooter proceeded to the school’s main lobby where he shot two students with a gun that he stole from the home of his former stepfather. He then fled the scene. The two victims were transported to a local hospital. Both fully recovered from their wounds.

The shooter was later apprehended, and charged with attempted murder. He was found guilty and sentenced to 35 years in prison.

Shortly after the shootings, the victims and their parents (the “plaintiffs”) sued the school, claiming that it was negligent when it

left one of the doors unlocked, allowing the shooter to enter the school;
failed to warn personnel monitors that the shooter posed a threat and to instruct them to specifically look for the shooter on school grounds after he was suspended; and,
failed to instruct personnel monitors to call 911 if he was spotted on school property.

foreseeability of harm

A trial court rejected the school’s request that the case be dismissed, and a state appeals court agreed. The court conceded that a property owner generally cannot be liable for an armed assault on its premises unless the assault is reasonably foreseeable, noting that “the duty to anticipate and to take steps against a criminal act of a third party arises only when the facts of the particular case make it reasonably foreseeable that a criminal act is likely to occur.” The court concluded that the school had failed to demonstrate that the shooter’s acts were unforeseeable as a matter of law, and therefore declined its request to dismiss the case. It observed:

We conclude that there exist genuine issues of material fact on this issue and that the School District has not proved as a matter of law that the shooting was not foreseeable. [The shooter] had a lengthy history of serious misbehavior in school; threatened to blow up the school; and was on school grounds, presumably in close proximity to the personnel monitors, for thirty minutes prior to the shooting. He had made threats against [one of the victims] of which at least one teacher was aware. The day before the shooting, another student had made a threat to shoot a teacher. Given these facts, a jury could conclude that it is foreseeable that a shooting would occur at the school.

the school’s safety plan

The school insisted that it exercised reasonable care in providing for the safety of its students, noting that it had implemented (1) a school-wide policy prohibiting threats, bullying, and fighting; (2) a door numbering system; (3) an electronic door locking system; (4) a video surveillance system; and (5) the placement of personnel monitors around school grounds during the time in which students arrived in the morning. The school further noted that when the shooter threatened to “blow up the school,” he was suspended immediately and expulsion proceedings were initiated. The court was not impressed, and concluded that “reasonable persons could differ as to whether there is a sufficient relationship between the school’s duty to supervise and protect its students and its alleged failure to take adequate measures to protect [the victim] from the shooter.”

What This Means For Churches:

This case illustrates the general rule that property owners are not liable for armed assaults on their premises that are not reasonably foreseeable. However, the court interpreted “foreseeability” broadly, and further concluded that the many precautions the school had initiated to respond to the risk of armed assaults could be viewed as inadequate, and on that basis refused to dismiss the case. According to this court, the shooter’s armed assaults were reasonably foreseeable because of the following facts: (1) he threatened to “blow up” the school; (2) he had a lengthy history of serious misbehavior in school; (3) he was on school grounds, presumably in close proximity to the personnel monitors, for thirty minutes prior to the shooting; and (4) he had made threats against one of his victims of which at least one teacher was aware. These facts imposed a duty upon the school to take appropriate steps to respond to the risk of an armed assault, but the court concluded that the many precautions the school had adopted were insufficient. Clearly, church leaders who are apprised that someone has made threats against the church, or individual members in the church, should be aware of the possible risk of liability should the person act on that threat, unless adequate precautions have been implemented. These are difficult questions that will depend entirely on the facts and circumstances of each case. Church leaders should discuss such behavior with law enforcement and legal counsel. M.S.D. v. Jackson, 9 N.E.3d 230 (Ind. App. 2014).

Legal Developments

Indiana’s Marriage Solemnization Statute Shows Clergy Preference

Statue held as unconstitutional due to preference of clergy over secular leaders.

State: Indiana
Categories: Marriage

Church Law and Tax Report

Indiana’s Marriage Solemnization Statute Shows Clergy Preference

Statue held as unconstitutional due to preference of clergy over secular leaders.

Key point 3-04. All states permit clergy to perform marriage ceremonies. However, some states permit only “ordained” or some other classification of clergy to perform marriage ceremonies. It is important for clergy to determine if they are legally authorized to perform marriages under applicable state law. In addition, clergy must be aware of the legal qualifications for marriage and any license and reporting requirements prescribed by state law.

A federal appeals court ruled that Indiana’s marriage solemnization statute was an unconstitutional preference for clergy over secular leaders. Indiana Code § 31-11-6-1 specifies who may solemnize a marriage. The list includes religious officials designated by religious groups but omits equivalent officials of secular groups, such as humanist societies:

Marriages may be solemnized by any of the following:

A member of the clergy of a religious organization (even if the cleric does not perform religious functions for an individual congregation), such as a minister of the gospel, a priest, a bishop, an archbishop, or a rabbi.

A judge.

A mayor, within the mayor’s county.

A clerk or a clerk-treasurer of a city or town, within a county in which the city or town is located.

A clerk of the circuit court.

The Friends Church, in accordance with the rules of the Friends Church.

The German Baptists, in accordance with the rules of their society.

The Bahai faith, in accordance with the rules of the Bahai faith.

The Church of Jesus Christ of Latter Day Saints, in accordance with the rules of the Church of Jesus Christ of Latter Day Saints.

An imam of a masjid (mosque), in accordance with the rules of the religion of Islam.

Anyone not on this list who purports to solemnize a marriage commits a crime. The state accommodates some religions, such as the Quakers (the Society of Friends, which the statute calls the “Friends Church”), that do not have clergy, but does not accommodate others, such as Buddhists, that lack clergy-led structures.

The Center for Inquiry in Indiana, a nonprofit that describes itself as a humanist group promoting ethical living without belief in a deity, and one of its members (the “plaintiffs”) filed suit in federal court. The plaintiffs claimed that the Indiana solemnization of marriage statute violated the First Amendment of the United States Constitution by preferring clergy over secular leaders.

The Center maintains that its methods and values play the same role in its members’ lives as religious methods and values play in the lives of adherents. The Center has certified 23 persons in the United States as “secular celebrants” of non-religious marriages. One of these individuals resides in Indiana, and has been asked by members to solemnize their marriages, which she wants to do but can’t because Indiana does not recognize humanist leaders as “clergy”—nor is the Center willing to classify itself as a “religious organization” in order to allow its secular celebrants to be treated as “clergy”.

The federal court ruled that Indiana’s statute did not violate the First Amendment. The plaintiffs appealed.

A federal appeals court agreed with the plaintiffs that the Indiana marriage solemnization law was unconstitutional because it favored some religions to the exclusion of other religious and secular groups. The court concluded that the marriage solemnization law would be rehabilitated, and would no longer offend the Constitution, if the state legislature simply added notaries public to the list of persons who can solemnize marriages: “The current statute discriminates arbitrarily among religious and ethical beliefs. Plaintiffs say that they would be satisfied if notaries were added to the list; nothing in humanism makes it inappropriate for a leader (or any other member) to be a notary public. Since Indiana has never given a reason for excluding notaries, while including every mayor and clerk of court, that hardly seems an excessive request.”

What This Means For Churches:

The court noted that three states (Florida, Maine, and South Carolina) authorize humanists to solemnize marriages by becoming notaries public. Four states (Alaska, Massachusetts, Vermont, and Virginia) allow anyone to solemnize a marriage, and another six (Colorado, Kansas, Montana, Pennsylvania, New York, and Wisconsin) allow the couple to solemnize their own marriage. This case demonstrates that while states may allow clergy to solemnize marriages, they may not withhold this privilege from some religious or nontheistic groups. However, the constitutional infirmity can be corrected by adding notaries public to the list of persons authorized to solemnize marriage. Center for Inquiry, Inc. v. Marion Circuit Court Clerk, 2014 WL 3397217 (7th Cir. 2014).

Legal Developments

Document Stating Affiliated-Denomination Properties Were Owned by Denomination Is Not Enforceable

Indiana Supreme Court says PCUSA trust law clashed with Indiana trust law, gives ownership of church building to local church.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Church Property

Church Law and Tax Report

Document Stating Affiliated-Denomination Properties Were Owned by Denomination Is Not Enforceable

Indiana Supreme Court says PCUSA trust law clashed with Indiana trust law, gives ownership of church building to local church.

Richard R. Hammar

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 Indiana Supreme Court ruled that a provision in a denomination’s governing document stating that the properties of all affiliated churches were held in trust for the denomination was not enforceable. In 1900, a church affiliated with a predecessor to the Presbyterian Church USA. In 1968, the church acquired real estate and built its church building using its own resources. Beginning at least as far back as 1994, the congregation began to have doctrinal disputes with the PCUSA, “including disputes about church policies and positions on abortion, ordination, Christology and theology.” In 2006, with a 98 percent approval vote of its congregation, the church decided to disassociate from the PCUSA.

When the church declined to relinquish ownership of its church property, the PCUSA, through its presbytery, filed a lawsuit claiming that the church’s property was held in trust for the PCUSA and asking the court to issue an order divesting the church of all right, title, and interest in its property. The PCUSA relied on the following provision in its Book of Order:

All property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Presbyterian Church (U.S.A.), whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of a particular church or of a more inclusive governing body or retained for the production of income, is held in trust nevertheless for the use and benefit of the Presbyterian Church (U.S.A.).

The trial court concluded that the contested property belonged exclusively to the local church, and that the property was not held in trust in favor of the PCUSA.

ON CHURCHLAWANDTAX.COM: Watch attorney Frank Sommerville, an Editorial Advisor for CHURCH LAW & TAX REPORT, further explain what’s at stake in property disputes between local churches and denominations.

The PCUSA appealed directly to the state supreme court. The court declined to apply the “deference” rule that has been endorsed by some courts and that generally requires the civil courts to defer to the judgments of denominational agencies in property disputes. Instead, it applied the “neutral principles of law” approach, which has been endorsed by other courts and that resolves church property disputes on the basis of non-doctrinal provisions in the deeds to church property, state statutes, and the governing documents of churches and parent denominational agencies. In applying the neutral principles approach, the courts “must take special care to scrutinize the documents in purely secular terms. In this respect, the civil courts will give effect to the intention of the parties, provided it is embodied in some legally cognizable form. This allows states, religious organizations, and individuals to structure relationships involving church property so as not to require the civil courts to resolve ecclesiastical questions.” (quoting the United States Supreme Court in Jones v. Wolf, 443 U.S. 595 (1979). The lesson of Jones, the court noted, is that “states are free to apply their own “well-established concepts of trust and property law” to church property disputes.)

The court acknowledged that several other courts had construed the United States Supreme Court’s ruling in the Jones case as “requiring the imposition of a trust whenever the denominational church organization enshrines such language in its constitution.” The court, in rejecting this view, observed:

We do not understand Jones as creating such a rule. First, such a rule would result in de facto compulsory deference by enforcing the claim of the denominational church organization merely because the trust claim is added to the denominational church organization’s constitution and regardless of any contrary evidence or state law. Not only did the Court reject imposing a “compulsory deference” rule in all cases [but it] specifically [ruled] that states may resolve church property disputes under any method so long as that approach does not abridge the First Amendment … . Second, the Court approved the neutral-principles approach as an acceptable means of applying state property and trust law … .Thus, the Supreme Court’s expression that “the constitution of the general church can be made to recite an express trust in favor of the denominational church” organization, was one example of a means by which parties may be able to express their intent, “provided it is embodied in some legally cognizable form” under state law … . Under Indiana trust law, whether under an express or implied trust theory, the intent of the owner (settlor) to create a trust must be demonstrated. Thus, under Indiana law, a claim of trust by the purported beneficiary (e.g., insertion of a trust clause into a denominational church organization’s constitution), without indicia of intent on the part of the owner (settlor), is insufficient to impose a trust.

The court noted that in applying the neutral principles approach, Indiana courts may consider

Indiana statutes, the language of the deeds and conveyances, the local church charters or articles of incorporation, the constitution of the denominational church organization, and any other relevant and admissible evidence provided they scrutinize these documents in purely secular terms consistent with Indiana law. In this respect, Indiana courts should apply neutral principles of Indiana trust and property law without regard to the organizational structure of the religious denomination … whether interpreting the language of a deed or conveyance or determining whether there exists an express or implied (constructive or resulting) trust.

The court concluded that the attempt by the PCUSA to impose an express trust on the property of every affiliated church (in Indiana) was ineffective since it failed to comply with the requirements of Indiana trust law. Under Indiana law, “an express trust must be evidenced by a writing signed by the owner of the property … . Such heightened proof is necessary to protect the sanctity of property ownership against trust claims not intended by the owner.”

However, the court concluded that it was possible that churches held property subject to an “implied” trust in favor of the PCUSA, and it remanded the case back to the trial court for consideration of this claim. The court noted that one form of implied trust is a “resulting trust” which is generally imposed in three circumstances: “(1) where an express trust fails in whole or in part; (2) where an express trust is fully performed without exhausting the trust estate; (3) where property is purchased and the purchase price is paid by one person and at his direction the vendor conveys the property to another person.” The court noted that it was only the first of these circumstances—the failure of an express trust—that was implicated by the facts of this case: “Such a resulting trust is created by operation of law to give effect to the parties’ intentions when they have otherwise failed to satisfy the statutory requirements for creating an express trust. And, as in the case of express trusts, the party seeking to impose the trust bears the burden of proof. As with express trusts, the settlor’s intent is crucial to the resulting trust analysis.”

The court instructed the trial court to determine if the church manifested an “unequivocal intent” to create a resulting trust in favor of the PCUSA.

What This Means For Churches:

This case illustrates the neutral principles of law approach to resolving disputes over the ownership of the property of local churches that vote to disaffiliate from a parent denominational agency. According to the Indiana Supreme Court, a provision in a denomination’s governing document purporting to impose a trust upon the property of every affiliated church in favor of the denomination will be enforceable only if it comports with the requirements of a valid trust prescribed by state law. And, in Indiana, this requires signed consent by a church to the imposition of the trust. It cannot be done unilaterally without the express consent of the churches that will be directly affected.

Note two important points. First, not all courts agree with this case. While a majority of courts have endorsed the neutral principles approach, many apply the compulsory deference rule which allows denominations themselves to sort out and resolve controversies over the ownership of church property. Second, even in states recognizing the neutral principles approach, there are at least three ways for denominational agencies to respond:

They can create trust provisions in their governing documents that are affirmatively accepted by affiliated churches. While the court did not mention it in the Indiana case, an argument can be made that churches in some cases do affirmatively consent to provisions in the governing documents of a parent denomination that seek to impose a trust on church property if, for example, churches and their representatives comprise some or all of the voting delegates at denominational meetings in which governing documents are adopted and amended. Under these circumstances, which are common, denominational governing documents are not imposed by the national church on affiliated churches. Rather, the churches themselves, by their delegates and representatives, adopt and amend the denominational governing documents at the official meetings of the national church. This provides a compelling case of an affirmative assent by affiliated churches to the provisions of their denominational governing documents, but it is an argument that the Indiana Supreme Court failed to address, perhaps because it was not raised.
It is possible in some cases that church property is subject to an implied or resulting trust in favor of a denominational agency. Again, there must be an affirmative manifestation of intent by a church that its property is subject to such a trust.
The United States Supreme Court noted in the Jones case that there may be cases where a denomination’s governing documents incorporate “religious concepts in the provisions relating to the ownership of property. If in such a case the interpretation of the instruments of ownership would require the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body.” This means that it may be possible for the governing documents of national and regional churches to include provisions addressing ownership of local church property in a way that directly implicates religious doctrine. In such cases, the courts may be compelled to defer to the resolution of property disputes by the denominational authorities. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099 (Ind. 2012).

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